August 04, 2015 BY Whitney Lay Greene
Prior Traversal Of A Static Condition Remains Viable Grounds For Summary Judgment In Premises Liability Cases—For Now
Central to Georgia premises liability law is the requirement that the proprietor have superior knowledge of a hazardous condition on its premises in order to be liable for accidents and injuries resulting therefrom. Perkins v. Val D’Austa Co., 305 Ga. App. 126, 128 (2010); see also American Multi Cinema v. Brown, 285 Ga. 442, 444 (2009). In the context of static conditions (i.e. a step) the Georgia appellate courts have long held that an invitee/customer’s actual knowledge of the static condition relieves a proprietor of any duty to warn the invitee of the dangerous condition because the invitee’s knowledge is equal to that of the proprietor. Perkins, 305 Ga. App. At 128. Often colloquially referred to as the “prior traversal” rule, proving the invitee’s “actual knowledge” is most commonly established by showing that the invitee previously traversed the hazard prior to the alleged slip, trip, or fall. Id.; see also Cocklin v. J.C. Penney Corp., 296 Ga. App. 179, 181-182 (2009); Newell v. Great Atlantic & Pacific Tea Co., 222 Ga. App. 884, 885 (1996). When prior traversal of the alleged static condition is shown, equal knowledge is imputed to the invitee and the Georgia appellate courts have “consistently resolved” cases in favor of the proprietor as a matter of law based on the invitee’s equal knowledge of the hazard. Norwich v. The Shrimp Factory, Inc., 770 S.E.2d 357, 359 (Ga. App. 2015); see also, Gantt v. Dave & Busters of Ga., 271 Ga. App. 457 (2005).
On March 30, 2015, in a split decision, the Georgia Court of Appeals upheld the trial court’s grant of summary judgment to the defendant based on the plaintiff’s prior traversal of a platform in the defendant’s restroom.Norwich, 770 S.E.2d 357. However, the issue was not as cut and dry as it might seem at first glance. Although the decision is clearly a victory for proprietors, the most notable aspect of the court’s analysis undertook consideration of (1) the multitude of efforts the proprietor made to warn invitees of the hazard; and, (2) the plaintiff’s own admissions about what she knew about the warnings and platform. Had this been a case with no warnings or where the plaintiff alleged she never noticed the warnings or the hazard itself—the outcome may have been different. These factors are especially notable, given the two judge dissent (discussed below).
The evidence, as discussed by the court, showed that the defendant’s women’s restroom included two toilet stalls constructed on top of a six inch raised platform at the end of the restroom. Id. at 358. To reach either stall, a customer must walk across the restroom floor, step up onto the platform, and then step up another six and a half inches into the stall. Id. Both the main floor and platform were wood, but the stall floor was tile. Id. On the inside and outside of each stall door a sign read, “Watch Your Step.” Id. There was also a yellow stripe on the floor across the threshold of the entrance to the stalls, differentiating the step from the platform to the stall floor. Id. Additionally, the platform has two non-skid black strips in front of each of the stalls, one of which was almost flush with the edge of the step. Id. Lastly, a handrail ran from a wall between the two stalls to the end of the platform (but not all the way to the main floor). Id.
On the day of the plaintiff’s alleged accident, she entered the restroom, stepped up onto the platform, and then stepped up into one of the stalls. Id. Once inside the stall, she saw the sign on the inside of the door warning customers to watch their step. Id. She also saw the yellow stripe on the floor marking the threshold of the stall.Id. As she exited the stall, the plaintiff stepped down onto the platform while holding the handrail. Id. At that point, she apparently believed she was on the main floor of the restroom, took her hand off the handrail, took a step toward the sink and fell off of the platform, injuring her right ankle. Id. Plaintiff subsequently filed suit, alleging negligent design and construction of the restroom, and that the defendant failed to take appropriate measures to make the restroom safe. Id. The defendant denied liability and filed a motion for summary judgement on the basis that the plaintiff had equal knowledge of any alleged hazard. Id.
In response to the defendant’s motion, The plaintiff offered the affidavits of two experts. The first expert, an engineer, opined that multiple building code violations in the defendant’s restroom “contributed to” the plaintiff’s fall, including that fact that the platform was less than forty-four inches in length and the lack of a proper handrail extending to the main floor. Id. at 358, 361. The expert further noted that the uniform color of the platform and main floor affected the visibility of the step down from the platform, and that the presence of the yellow strip on the stall floor would lead a patron to reasonably expect a similar strip on any other step. Id. at 361.
The second expert, a psychology professor, testified that the absence of physical features at the edge of the platform to demarcate the platform from the main floor created an “apparent continuity” of the floor and platform surfaces which caused plaintiff’s fall. Id. at 358, 361-362. This expert further contended that the end of handrail at the edge of the platform (rather than on the main floor) provided a “misleading cue” to the plaintiff that she had reached the main floor. Id. at 362. The trial court granted the defendant’s summary judgement motion on the grounds that the plaintiff had equal knowledge of the hazard posed by the platform based on the fact that she had previously negotiated it on her way into the bathroom stall. Id. at 358-359.
In upholding the trial court’s decision, the four-judge majority noted the plaintiff’s observance of the “Watch Your Step” signs on both the inside and outside of the stalls prior to her fall. Id. at 360. The Court also noted the presence of the two black non-skid strips, one of which was placed near the edge of the platform, and both of which were “readily discernible” in the “poor quality” photograph contained in the appellate record. Id. Although the plaintiff contended that the irregular depth of the step, the lack of a proper handrail, and the use of the same flooring material on the platform and the main floor all contributed to her fall, the Court focused on the fact that the plaintiff admitted that none of these conditions changed in the brief period between the time she ascended the platform to the stall and the time she descended from the stall. Id. (emphasis added). The Court concluded, therefore, that when “a plaintiff has successfully negotiated a specific and static condition only moments before encountering it again, our law reasonably imputes knowledge of that condition to her because it presents no new hazard.” Id. The Court further concluded that given plaintiff’s testimony regarding her fall, expert opinion as to how the plaintiff may have perceived the step was both speculative and irrelevant. Id.
Worth noting however, the two judge dissent argued that a genuine issue of material fact existed as to whether the hazardous condition of the bathroom platform was “readily discernible” to the plaintiff from her vantage point at the time of the fall. Id. at 361 (emphasis added). According to the dissent, the issue of whether the plaintiff exercised ordinary care for her own safety and whether she had equal knowledge of the hazard posed by the platform were questions of fact to be resolved by a jury. Id. In support of its opinion, the dissent noted that, “the rule imputing knowledge of a danger to a person who has successfully negotiated an alleged dangerous condition before applies only to cases involving a static condition that is readily discernible to a person exercising reasonable care for [her] own safety.” Id. at 362 (emphasis added). Given the “readily discernible” requirement, the dissent concluded that even if the plaintiff previously negotiated a step, a question of fact still remained as to whether the plaintiff should have detected the change in elevation at the step at the time of her fall, “if there is evidence that the change in elevation, from the plaintiff’s vantage point when the fall occurred, was hidden or difficult to see because of irregularities or unique characteristics of the step.” Id.(emphasis added)
The majority’s response to the dissent argued that its reliance on expert testimony about an “apparent continuity” appearing from one angle but not another would gut the longstanding rule that the successful negotiation of an obvious, static, and specific hazard bars recovery for injuries sustained in a fall on the way back down from the same hazard (particularly given the plaintiff’s uncontested admissions about her own observations). Id. at 360. The majority also noted that none of the cases cited by the dissent involved prior negotiation of the exact same static condition within moments of the fall. Id.
Although the decision serves as a victory for the defense (at least temporarily as the plaintiff filed notice of intent to seek certiorari in June 2015), it also shows that there is no such thing as “over-doing it” when it comes to warning invitees of static conditions. Proprietors should make every effort to utilize readily available warnings (yellow striping, signs, etc.) even when the static condition appears to be clearly open and obvious. Assuming patrons will notice a step when they initially negotiate it or that they will recall the step when negotiating it a second time can put a proprietor on shaky summary judgment ground, driving up both litigation costs and settlement values of these cases.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley