What Must be Shown to Establish Constructive Knowledge?
In a personal injury case, the plaintiff suffered injuries when he slipped and fell in a shower at a truck stop in Atlanta. At issue was whether the truck stop had actual or constructive knowledge of the hazard.
actual versus constructive knowledge
This case arises out of a premises liability claim. The defendant TAO operates a TA Travel Center in Atlanta, Georgia (“TA Atlanta”). One of the amenities TA Atlanta offers its customers are showers. Customers can access these showers by either using the shower kiosk or purchasing a shower from a cashier.
TAO hires porters to inspect and clean the showers. To train them, it uses multiple training programs, including general cleaning basics and shower-specific responsibilities. As part of these, porters generally inspect and clean the showers throughout their shifts, including after each guest’s use. These inspections include inspecting the shower drain.
In 2024, the plaintiff purchased a shower from TA Atlanta at night. The plaintiff inspected the shower, including the shower floor, before using it. A few minutes after the water started running, he claimed that both of his feet were standing on the small drain cover in the shower when it popped up and cut the bottom heel of his left foot, causing him to fall. The plaintiff took a photo of the shower drain right after the incident and noted that the shower drain didn’t look like the picture before his shower. When the plaintiff arrived at the hospital, he only reported injuries to his left foot and explicitly denied head trauma. He didn’t report falling in the shower.
The plaintiff suffered injuries before and after his injury at TA Atlanta. In 2023, he underwent surgery on both shoulders from a rear-end car accident that caused injuries to his shoulders and neck. Then, four months after the incident at TA Atlanta, he was a passenger involved in a serious car accident where the vehicle he was riding in was traveling over 100 miles per hour when it “T-boned” another vehicle. He was subsequently taken to the hospital, where they determined that the impact broke his femur and he needed a rod implanted from his hip to his knee. The plaintiff denied any claims for back or neck pain during his two days in the hospital, and imaging by Grady Memorial confirmed no ongoing back or neck concerns.
Later in 2025 and after being discharged from the hospital, the plaintiff filed suit against TAO to recover for his injuries sustained at TA Atlanta in the State Court of Gwinnett County. In the Complaint, the plaintiff alleged that the TAO was liable for negligence. Soon after, TAO removed the action to the Northern District of Georgia. After the parties completed discovery, TAO filed its Motion for Summary Judgment.
A property owner has a duty to alert invitees to hidden dangers or defects not observable to them.
United States District Judge Thomas W. Thrash, Jr. wrote that under Georgia law, the essential elements of a negligence claim are ‘the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Premises liability, a subset of a negligence claim, can be pled by alleging facts that show: (i) that the defendant had actual or constructive knowledge of the hazard; and (ii) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. Defendant TAO argued that the plaintiff failed to establish that it had actual or constructive knowledge of the faulty drain cover.
Judge Thrash explained that the standard for granting summary judgment on a premises liability claim is high. The Georgia Supreme Court stated that the trial court can conclude as a matter of law that the facts do or don’t show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. Where reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/occupier breached the duty of care to invitees and whether an invitee exercised reasonable care for personal safety, summary adjudication is not appropriate.
Understanding the standard, the judge turned to the issue of TAO’s knowledge. It’s well settled in Georgia that the fundamental basis for an owner or occupier’s liability is that party’s superior knowledge of the hazard encountered by the plaintiff. A property owner has a duty to alert invitees to hidden dangers or defects not observable to them. On a motion for summary judgment, where the evidentiary record is bare as to whether a defendant had actual or constructive knowledge of a hazardous condition, the burden is on the plaintiff to demonstrate that the defendant had actual or superior knowledge of the hazard to avoid summary judgment.
And TAO was correct to assert that the evidentiary record suggested that it didn’t have actual knowledge of the faulty shower drain. The evidence before the Court showed that TAO owned and maintained each shower at TA Atlanta. As part of their duties, porters working for TAO inspected the showers throughout their shifts, including after each use by a guest. This includes inspecting the shower drain in each shower. According to testimony by TAO’s corporate representative, there were no maintenance or safety issues communicated or logged with the shower where the plaintiff suffered his injury in the year preceding the incident. This is further corroborated by the fact that the plaintiff saw nothing apparently wrong with the shower drain cover prior to beginning his shower.
But Judge Thrash concluded that there was evidence that TAO could have had constructive knowledge of the faulty drain. To establish constructive knowledge, a plaintiff must show that (1) a store employee was in the immediate area of the hazard and could have easily seen the hazard; or (2) the hazard remained long enough that ordinary diligence by the store employees should have discovered it. Moreover, constructive knowledge may be inferred when there’s evidence that the owner lacked a reasonable inspection procedure, the judge wrote. To prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place but that such a program was actually carried out at the time of the incident. Determining whether an inspection program is reasonable is determined on a case-by-case basis.
Again, TAO’s policies require porters to inspect and clean the showers throughout their shifts, including after each use by a guest. Judge Thrash said that the policy, in theory, appeared reasonable because the showers likely only suffer wear-and-tear when in use. In practice, the answer wasn’t as clear cut. Although porters are required to inspect showers after each use, the record suggested that this may not actually have been the case. TAO’s corporate representative explained that porters generally only become aware of when a shower has been used when the customer leaves the door open to the shower or when the electronic system shows that the shower is out-of-use. Additionally, porters aren’t required to keep a written log of every time they inspect and clean the shower. Even on the date of the plaintiff’s injury, TAO presented no proof that any inspections happened according to its policy. Where some Georgia courts have held that an inspection policy wasn’t reasonable when it was conducted as little as 15-20 minutes prior to a fall, the lack of any paper trail relating to TAO’s inspections is fatal to its motion for summary judgment. Thus, TAO can’t demonstrate that they didn’t have constructive knowledge of the faulty shower drain because (1) the inspection policy was, in practice, not reasonable and (2) regardless, there was no evidence that the inspection policy was carried out on the day of the incident.
Finally, even if TAO could show that they didn’t have actual or constructive knowledge of the hazard, Judge Thrash found that the plaintiff satisfied his burden in demonstrating that TAO would’ve had superior knowledge of the hazard. Compared to the plaintiff, who was a transient customer, TAO operates a business, presumably daily, at TA Atlanta and is generally responsible for the daily upkeep of the property. The showers offered to the plaintiff are part of the business operations of TAO, and it derives revenue from the enterprise. And the hazard wasn’t obvious to the plaintiff when he inspected the shower. Thus, there was little question that TAO had superior knowledge of any hazards on the premises compared to the plaintiff. Accordingly, the Court wouldn’t grant summary judgment for TAO on the plaintiff’s negligence claim. Jackson v. TA Operating LLC, 2026 U.S. Dist. LEXIS 132278, 2026 LX 388282, 2026 WL 1724457 (Ga. App. June 15, 2026).
To establish constructive knowledge: (1) a store employee was in the immediate area of the hazard and could have easily seen the hazard, or (2) the hazard remained long enough that ordinary diligence by the store employees should have discovered it. Moreover, constructive knowledge may be inferred when there’s evidence that the owner lacked a reasonable inspection procedure.
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