X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

McFadden, Chief Judge. RSFPITTSGA, LLC, the owner of a restaurant (“the Owner”), appeals from the denial of its motion for summary judgment in this premises liability case. The plaintiff, Joan Marie Schiess, was injured after tripping over a root in an unpaved area near the restaurant parking lot. The Owner argues that the trial court erred in this ruling because Schiess cannot demonstrate that the Owner had superior knowledge of the hazard. But there exist genuine issues of material fact that preclude summary judgment, so we affirm. 1. Facts. Summary judgment is appropriate when the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” OCGA § 9-11-56 (c). “ On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.” Scrocca v. Ashwood Condo. Assn., 326 Ga. App. 226 (1) (756 SE2d 308) (2014) (citation and punctuation omitted). So viewed, the record shows that Schiess worked at a medical imaging center a five-minute walk from the restaurant. Over the course of a year and a half, Schiess would walk to the restaurant for lunch “once every few weeks.” Her route took her across a “flat-ish” dirt area that she and other pedestrians crossed to round the corner from the sidewalk and access the restaurant’s parking lot, bypassing its driveway entrance. On July 4, 2016, as she was walking to the restaurant, Schiess tripped on a partially-exposed, protruding root in this dirt area. She fell, injuring two bones in her leg. At the time of Schiess’s fall, the root was sticking approximately two inches out of the ground and was attached to the ground on only one end. The root had not been in this condition four days earlier, when a landscaping crew employed by the Owner worked in and inspected that area for tripping hazards. Based on her injury, Schiess sued the Owner for damages under a premises liability theory. The Owner moved for summary judgment, arguing that the evidence is undisputed that Schiess had traversed the area several times before, and arguing that Schiess cannot show the Owner had superior knowledge of the tree root, which the Owner asserted was an unhidden, naturally-occurring object. The trial court denied the motion for summary judgment and certified that order for immediate review. We granted interlocutory appellate review of the order. 2. Genuine issues of material fact preclude summary judgment. An invitee such as Schiess, who seeks to recover for injuries sustained in a trip-and-fall action, must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) 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. . . . The true ground of liability is the owner or occupier’s superior knowledge of the hazard and the danger therefrom. Cottingham v. Sapp, 344 Ga. App. 651, 652 (1) (811 SE2d 442) (2018) (citations and punctuation omitted). It is well established in Georgia that summary judgment is appropriate in a premises liability case “only where the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997). The Owner argues on appeal that it is entitled to summary judgment for three reasons: because Schiess previously had traversed the dirt area, giving her knowledge of the hazard; because the Owner lacked actual or constructive notice of the hazard; and because the protruding root was a naturally-occurring object. None of these arguments support reversal because, as to each of them, genuine issues of material fact preclude summary judgment. (a) Schiess’s knowledge of the hazard. The Owner argues that it was entitled to summary judgment based on the rule that a plaintiff who had previously traversed a static defect is presumed to have knowledge of that defect. See Pye v. Reagin, 262 Ga. App. 490, 491-492 (586 SE2d 5) (2003). But for that rule to apply, the plaintiff must have “successfully negotiated [the] allegedly dangerous condition on a previous occasion[.]” Id. at 491 (citation and punctuation omitted; emphasis supplied). Accord Ridley v. Dolgencorp, 353 Ga. App. 561, 563 (839 SE2d 26) (2020). The evidence in this case supports a finding that the root’s condition only became dangerous at some point during the four days preceding Schiess’s fall. In other words, the jury could find that the reason the landscape crew did not see the root four days earlier was because at that point it was not broken and sticking up out of the ground. And there is no evidence compelling a finding that Schiess traversed that area between the date the landscaping crew saw no root and the date on which Schiess tripped. So there is at least a genuine issue of fact as to whether Schiess had ever successfully negotiated that particular dangerous condition. Under these circumstances, the mere fact that Schiess previously had walked near the root does not preclude her recovery. See Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 350 (2) (349 SE2d 241) (1986) (permitting a premises liability case to survive summary judgment even though the plaintiff previously had been in the area of the allegedly defective condition — bumpers near a shopping cart corral — because of the “changeable nature of the bumpers as regards their actual physical location, their potential for becoming a dangerous obstacle to pedestrians, and their visual observability”). The premises liability cases involving roots that the Owner cites in support of this argument do not hold otherwise, as those cases do not involve evidence that the nature of the hazardous condition had changed in the time since the plaintiff last had traversed it. See Nemeth v. RREEF America, 283 Ga. App. 795, 796-797 (1) (643 SE2d 283) (2007) (plaintiff fell on uneven pavers, caused by tree roots, on patio that plaintiff went to several times a week); Pye, 262 Ga. App. at 491 (plaintiff tripped on one of several exposed roots in area of unpaved parking lot where she had been before). Our decision in Perkins v. Kranz, 316 Ga. App. 171, 174 (3) (728 SE2d 804) (2012), which the Owner cites, also is inapposite; in that decision, which involved a plaintiff injured by a tree branch, we noted that the condition of the tree’s branches could not have meaningfully changed in the few minutes that elapsed between the plaintiff’s observation of the branches and his injury. Id. at 174 (3). (b) The Owner’s knowledge of the hazard. Schiess has pointed to no evidence in the record that the Owner possessed actual knowledge, but there exists a genuine issue of material fact regarding the Owner’s constructive knowledge that precludes summary judgment. A premises owner or occupier’s [c]onstructive knowledge may be shown by demonstrating that (1) an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition prior to the fall, or (2) the hazardous condition had existed for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises. Benefield v. Tominich, 308 Ga. App. 605, 608 (1) (708 SE2d 563) (2011). And “to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has first demonstrated its inspection procedures.” Id. at 609 (1) (citation and punctuation omitted). “[T]he owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” Id. (citation and punctuation omitted). Accord Davis v. Bruno’s Supermarkets, 263 Ga. App. 147, 148 (1) (587 SE2d 279) (2003). Stated another way, “[a] property owner’s constructive knowledge may be inferred where there is evidence that the owner lacked a reasonable inspection procedure.” Garcia v. KRC Alderwood Trails, 348 Ga. App. 84, 89 (819 SE2d 713) (2018) (citations and punctuation omitted). Here, the evidence could allow a jury to find that the Owner lacked a reasonable procedure to inspect the dirt area for hazards. That evidence, viewed most favorably to Schiess, showed that the Owner did not discuss any particular safety policies with the company that it had hired to provide weekly landscaping services,[1] and that the Owner had no policy or procedure for employees to follow in looking for hazards outside the restaurant building itself. So, contrary to the Owner’s argument on appeal, Schiess was not required to point to evidence showing how long the root had existed in its hazardous condition to avoid summary judgment. See Benefield, 308 Ga. App. at 608 (1). The fact that the root may have existed in that hazardous condition for only four days, as discussed above, does not entitle the Owner to summary judgment. Rather, it goes to the issue of reasonableness of any inspection procedures carried out by the Owner. See Gibson v. Halpern Enterprises, 288 Ga. App. 790, 792-793 (655 SE2d 624) (2007) (holding that the “specific facts and circumstances of a case determine the reasonability of an inspection procedure” and finding that the reasonableness of a weekly inspection of a parking area was a jury question); Kmart Corp. v. Jackson, 239 Ga. App. 176, 178 (521 SE2d 93) (1999) (holding that evidence that employees did not have specific inspection procedures to follow created jury question as to reasonableness of store’s inspection policy). For these reasons, the evidence regarding the Owner’s knowledge of the hazard is not “plain, palpable, and undisputed[,]” and the Owner is not entitled to summary judgment on this basis. Robinson, 268 Ga. at 748 (2) (b). (c) Naturally-occurring object. The Owner argues that it is entitled to summary judgment because the root was a naturally-occurring object that it had “no duty to discover and remove.” But this court’s decisions do not recognize such a bright-line rule. Instead, “[w]e have specifically applied the requirement of reasonable inspection procedures to cases involving naturally-occurring conditions[.]” Petrosky v. Embry Crossing Condo. Assn., 284 Ga. App. 354, 356 (1) (a) (643 SE2d 855) (2007). The fact that an allegedly hazardous condition was naturally-occurring does not negate an owner’s duty to exercise ordinary care in inspecting the premises in every circumstance. [The development of a hazardous condition] due to inevitable natural forces unaffected by human agency does not preclude examination into the question of whether or not the defendant was negligent in failing to take remedial action. Absent evidence that the [Owner] reasonably inspected [its premises] for defects and that the [protruding root] was a new defect of which the [O]wner had no notice or sufficient time to correct, we cannot say as a matter of law that it complied with its duty to business invitees to keep the premises safe. Id. (citations omitted). See Fowler Props. v. Dowland, 282 Ga. 76, 81 (5) (646 SE2d 197) (2007) (in cases involving naturally-occurring hazards, premises owner’s “duty is assessed under general applicable principles of negligence and [a determination of whether it breached that duty] is based upon whether or not the [owner] has used reasonable care to keep the approaches reasonably safe”) (citation and punctuation omitted). See generally Augusta Country Club v. Blake, 280 Ga. App. 650, 655-656 (1) (b) (634 SE2d 812) (2006) (discussing, in cases of naturally-occurring accumulations such as ice or seed pods, Georgia’s adoption of rule that owner may be negligent for failing to take remedial action to rectify a naturally-occurring hazard). Consequently, this argument provides no basis for summary judgment to the Owner. Judgment affirmed. Hodges, J., concurs. Doyle, P. J. dissents. A20A1228. RSFPITTSGA v. Schiess.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More
May 15, 2024
Philadelphia, PA

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania and Delaware.


Learn More

A large and well-established Tampa company is seeking a contracts administrator to support the company's in-house attorney and manage a wide...


Apply Now ›

We are seeking an attorney to join our commercial finance practice in either our Stamford, Hartford or New Haven offices. Candidates should ...


Apply Now ›

We are seeking an attorney to join our corporate and transactional practice. Candidates should have a minimum of 8 years of general corporat...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›