X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Phipps, Senior Appellate Judge. Appellee Yulonda Girardot filed suit against appellant Williams Investment Company d/b/a Days Inn (“the hotel”) to recover damages that she allegedly sustained when she slipped and fell on a wet sidewalk at appellant’s hotel. The hotel filed a motion for summary judgment, which the trial court denied. We granted the hotel’s application for interlocutory appeal to review the trial court’s decision. On appeal, the hotel contends that the trial court erred in denying summary judgment in its favor because the undisputed evidence established that Girardot (1) had equal, or superior, knowledge of the alleged hazardous condition and (2) assumed the risk associated with the alleged hazard. We agree with the hotel and reverse. Summary judgment is proper when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. OCGA § 91156 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. (Citation omitted.) Pinckney v. Covington Athletic Club & Fitness Ctr., 288 Ga. App. 891, 891 (655 SE2d 650) (2007). So viewed, the record shows that on July 1, 2016, Girardot and her four grandchildren were guests at the hotel that appellant owned and operated. Girardot’s hotel room was located in close proximity to the hotel’s pool. After dinner, at approximately 6:30 p.m., Girardot and her grandchildren went to the pool. When walking to the pool area, Girardot did not notice anything hazardous or slippery about the subject sidewalk between the hotel room and the pool. Girardot remained at the pool for approximately an hour. At some point, Girardot left the pool area to escort her youngest grandson to the bathroom. Girardot and her grandson traversed the same route back toward the hotel room that they had taken to the pool. It was near dusk and lights illuminated the sidewalk leading from the pool area to the hotel room. According to Girardot, there had been approximately six other guests at the pool, and other pool guests may have walked down the same sidewalk before her. Girardot’s grandson had not dried off at the pool and had water dripping from him as he walked ahead of Girardot. Girardot described that, as she walked from the pool area, the lights illuminated the sidewalk and she saw that the sidewalk leading to the hotel room was painted, “shin[y],” and wet. Girardot also observed that a portion of the enamel on the sidewalk’s surface was peeling off. Girardot further described that as the light was shining on the wet sidewalk, she could see that “it looked slick.” Recognizing that the wet sidewalk area required the exercise of caution, Girardot warned her grandson to “slow down[.]“ While traversing the wet sidewalk, Girardot slipped and fell.[1] She suffered multiple injuries to the left side of her body as a result of the fall. She reported the fall incident to the hotel’s front desk shortly thereafter and the hotel manager completed an incident report on the following day. Girardot filed suit against the hotel, seeking to recover for damages that she allegedly sustained as a result of the fall incident. After deposing Girardot, the hotel filed a motion for summary judgment. In response to the motion, Girardot presented an expert affidavit from a retired OSHA trainer who opined that the hotel failed to maintain the sidewalk in a reasonably safe condition; the sidewalk surface had deteriorated paint, which significantly increased the likelihood of a pedestrian slipping when moisture was present; and that Girardot’s fall was likely caused by the uneven surface material on the sidewalk. The trial court denied the hotel’s motion and the instant appeal ensued. The owner or occupier of [a] premises is under a duty to keep its premises reasonably safe and to warn of hidden dangers or defects not observable to invitees who are exercising ordinary care for their own safety. However, a property owner is not an insurer of the safety of its invitees. The mere showing of the occurrence of an injury does not create a presumption of negligence. (Citations and punctuation omitted; emphasis supplied.) Cleghorn v. Winn Dixie Stores, 228 Ga. App. 766, 766 (492 SE2d 745) (1997). [T]o recover damages for injuries sustained in a slipandfall action, an invitee 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. (Punctuation and footnote omitted.) Weickert v. Home Depot U. S. A., 347 Ga. App. 889, 891 (821 SE2d 110) (2018). A plaintiff cannot recover on a premises liability claim unless the defendant had superior knowledge of the hazard; consequently, the defendant is entitled to summary judgment if there is no evidence that it had superior knowledge or if the undisputed evidence demonstrates that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant. (Punctuation and footnote omitted.) Diaz v. Wild Adventures, Inc., 289 Ga. App. 889, 891 (658 SE2d 362) (2008). In the instant case, the hotel argues that it was entitled to summary judgment because the undisputed evidence, including Girardot’s own deposition testimony, established that she had at least equal knowledge of the hazardous condition before she proceeded to walk on the sidewalk. We agree. Significantly, at her deposition, Girardot testified that she had previously traversed the same sidewalk after she had checked into the hotel and was initially going to the hotel room. At that time, she noticed that the sidewalk’s surface had chipped paint, but she had no difficulty walking on the sidewalk. She further testified that when she later walked from the pool area, there were lights illuminating the sidewalk area and she saw that the painted sidewalk was “shin[y]” and appeared to be wet. Specifically, she demonstrated the path that she took around the corner from the pool and confirmed that “ [she] had seen that it was wet when [she] came around [from the pool area] because . . . the lighting [was] shining on it, [and] you could see it looked slick.” She confirmed that because of the lighting, the wet sidewalk was more noticeable and she could see the sidewalk area well. Girardot’s appreciation of the hazard is highlighted by the fact that she warned her grandson to exercise caution as he walked ahead of her. This combined testimony established that the alleged sidewalk hazard was openly visible due to lights illuminating the sidewalk and that Girardot had observed and appreciated the sidewalk hazard before she walked upon it.[2] “She nevertheless chose to negotiate the hazard and thus assumed the risk as to the known condition by voluntarily acting in the face of such knowledge.” (Punctuation and footnote omitted.) Emory Univ. v. Smith, 260 Ga. App. 900, 902903 (581 SE2d 405) (2003).[3] Because Girardot’s deposition testimony plainly and indisputably shows that she had at least equal knowledge of the wet, slick hazard before she voluntarily proceeded to traverse the sidewalk, the hotel was entitled to summary judgment in its favor. See Briddle v. Cornerstone Lodge of America, 288 Ga. App. 353, 355 (654 SE2d 188) (2007) (affirming grant of summary judgment to defendant in slip and fall action when evidence showed that plaintiff was aware of the wet floor hazard and voluntarily chose to walk across the wet surface); Emory Univ., 260 Ga. App. at 902903 (trial court erred in denying defendant’s motion for summary judgment when the evidence showed that plaintiff saw the sloped, painted, and wet ramp hazard before she stepped on it, but she chose to negotiate the hazard); Cleghorn, 228 Ga. App. at 766-767 (property owner was entitled to summary judgment when plaintiff conceded that nothing obstructed his view of the floor hazard and made no claim that he had been distracted, but apparently decided that he could safely traverse the area by walking “very carefully”). Judgment reversed. Barnes, P. J., and Gobeil, J., concur.

 
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
May 01, 2025
Atlanta, GA

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


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

We are seeking two attorneys with a minimum of two to three years of experience to join our prominent and thriving education law practice in...


Apply Now ›

Description: Fox Rothschild has an opening in the New York office for a Real Estate Litigation Associate with three to six years of commerci...


Apply Now ›

Downtown NY property and casualty defense law firm seeks a Litigation Associate with 3+ years' experience to become a part of our team! You ...


Apply Now ›