Doyle, Presiding Judge. Patti Pennington, individually and as administrator of the estate of her deceased husband, brought this premises liability action to recover damages after her husband tripped and fell on an uneven pavement seam near the entrance to their assisted living facility. The trial court granted summary judgment to the defendants on the ground that they lacked superior knowledge of the hazard, and Pennington appeals. Because the undisputed evidence shows that the hazard was a commonly occurring open and obvious static condition, we affirm. Viewed in the light most favorable to Pennington as the non-movant,[1] the record shows that she and her husband moved into Somerby Sandy Springs, an assisted living facility, in January 2018. The facility had been built about a year earlier, and its main entrance had a hotel-style passenger loading area beneath a covered portico. When the couple moved in, Pennington’s husband, Dr. Edward Earl Pennington, was 79 years old and had various health problems, though he was independently ambulatory. One evening in April 2020, Pennington and her husband drove to a local restaurant, then returned to Somerby. They exited their car and walked across the parking lot toward the facility’s main entrance. As Pennington’s husband crossed the seam between the asphalt driveway and the concrete pavement at the portico entrance, he tripped and fell, incurring serious injuries that led to his death several days later. According to Pennington, despite living there for more than two years, she only used the area for loading and unloading when she was by herself, and she had never traversed that pavement seam on foot because, “There is no reason to. There is a sidewalk which is covered.”[2] Pennington filed a premises liability action against Somerby’s owner, manager, and director (collectively, “Somerby”), alleging that her husband’s injuries had been caused by “an unmarked, uneven, raised change in the pavement.” Asserting claims for negligence and negligence per se, the complaint alleged that Somerby knew or should have known about this height differential, which violated multiple applicable codes and standards, but neither repaired it nor warned residents of it. Pennington engaged Richard Rice, a licensed professional and structural engineer, to “review the evidence” and “determine whether or not any codes or standards were violated that would have caused [the decedent] to trip and fall.” Rice measured a maximum height discrepancy of seven-sixteenths of an inch between the asphalt pavement and concrete slab at the seam. According to Rice, codes and standards applicable under Georgia law to assisted living facilities are meant to protect “those who have ambulatory problems” and prohibit changes in level that are greater than one-fourth of an inch at accessible routes and means of egress.[3] Rice testified that the seam between the two surfaces was clearly visible, but the height differential was not discernible to the average person crossing the seam because “[t]hey’re not looking for it.” Rice concluded that the two surfaces were level and code-compliant when constructed, but the asphalt later settled at a lower level than the concrete as the pavement subgrade consolidated. Rice further opined that the height discrepancy had existed “for quite an amount of time.” Pennington also obtained the affidavit of a former Somerby employee who stated that in 2019, she “tripped on an unlevel part of the concrete near the entrance to” the facility. The former employee averred that she had told some co-workers what happened “because [she] was concerned that elderly people who live at Somerby might trip on the same place where [she] had tripped, and get injured.” According to the former employee, she later learned that she had tripped in “the same spot” where the decedent had fallen. The former employee declined to identify which co-workers she told about her fall,[4] and Somerby’s corporate representative testified that the former employee “never reported this incident” and that Somerby has no documentation of it. Somerby moved for summary judgment, arguing among other things that it lacked superior knowledge of the pavement defect over which the decedent tripped. The trial court granted Somerby’s motion, ruling that the defect was a static condition of which Dr. Pennington had equal knowledge, and this knowledge prohibited recovery even assuming that the seam was a building code violation. Pennington appeals. Pennington argues that the trial court erred by granting Somerby’s motion because routine issues of premises liability should not be adjudicated summarily and there was evidence that Somerby had superior knowledge of the defect.[5] Based on the record in this case, we disagree. Under OCGA § 51-3-1, [w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. To prevail on a premises liability claim, the plaintiff must show “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the [injured party] lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.”[6] Therefore, the fundamental basis for an owner or occupier’s liability is that party’s superior knowledge of the hazard encountered by the plaintiff. In other words, a plaintiff is not entitled to recovery if the undisputed evidence [plainly] demonstrates that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant.[7] That is the case here. [A]n invitee is not entitled to an absolutely smooth or level way of travel. It is common knowledge that small cracks, holes[,] and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor[8] will see it and realize the risk involved.[9] It is undisputed in this case that the particular hazard was a slightly raised seam between asphalt and concrete pavement that commonly occurs along joints in any paved surface. This was not a function of the design of the driveway, nor was it unique to this area; rather, all paved surfaces have joints where they meet, and a slight irregularity is a common, readily observable, static condition. The hazard presented by such a seam is not something a plaintiff lacks knowledge of when approaching. The testimony of Pennington’s expert, Rice, does not change this. First, Rice testified in a conclusive manner that “the average person is not going to see [it because] they’re not looking for it.” But this is a legal conclusion as to the ultimate issue and not sufficient to create a material issue of fact as to the character of the static condition as presented in Rice’s photos of the scene and objective descriptions and measurements.[10] Further, Rice testified that the seam between the asphalt and concrete violated various building and safety codes. Therefore, Pennington argues that a jury question exists despite the open and obvious nature of the seam. But the alleged building code violation does not require reversal,[11] based on the particular hazard in this case. For example, cases cited by Pennington hold that building code violations, particularly by landlords, typically present jury questions even as to equal knowledge because “the facts supporting these defenses will not be plain or indisputable. . . [A] tenant who is aware of a condition that violates a housing code does not necessarily appreciate the danger presented — a danger that has been studied and regulated by a governing body.”[12] This makes sense when a plaintiff with equal knowledge cannot necessarily appreciate specific hazards presented by things such as faulty wiring, or an improper railing height, or the lack of certain safety features required by code. But the defect in this case is not that type of hazard. As demonstrated by the photos taken of the area and the undisputed descriptions of the area, it is a plainly visible and routinely occurring seam between the concrete and asphalt, highlighted by the change in color between the two surfaces.[13] Taking into account all of these conditions at the time of the fall, this minor “irregularit[y] and trifling defect[]“[14] was not a cause for recovery, and the testimony of Pennington’s expert does not create a genuine issue as to the above facts, which are dispositive.[15] Therefore, the material factual evidence “is plain, palpable, and undisputed” such that summary judgment is appropriate.[16] Pennington also relies on evidence that a Somerby employee had tripped in the area and had spoken to other staff members about it. But this does not support an inference that Somerby’s knowledge was superior to Dr. Pennington’s because, once again, the seam and lip were not only open and obvious, but commonly found in paved surfaces: “There is no duty to warn of the obvious,”[17] because knowledge of such conditions is presumed. Accordingly, based on the particular nature of the driveway seam at issue in this case, the record fails to support an inference that Somerby had superior knowledge of the alleged hazard it presented. Finally, we note that after the briefing in this case, the Supreme Court of Georgia published a writing by Justice Pinson, joined by Presiding Justice Peterson, concurring in an order granting the parties’ motion to withdraw the appeal in Givens v. Coral Hospitality-GA, LLC.[18] In the concurrence, Justice Pinson questioned the viability of much of the case law that has developed around hazards deemed “open and obvious” or in plain view. He noted that under the principles outlined in Robinson v. Kroger,[19] the seminal premises liability case in Georgia, issues regarding “how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.”[20] In light of this, he wrote, “the question whether any given hazard was sufficiently obvious is a question whether the invitee reasonably could have seen and avoided it in the exercise of ordinary care. And in tort law, questions about reasonableness under the circumstances are quintessentially questions for the factfinder.”[21] Justice Pinson’s critique is well taken. Nevertheless, it does not purport to abandon the principle reiterated in Robinson that summary judgment remains appropriate “where the evidence is plain, palpable[,] and undisputable.”[22] The facts of this case present such a scenario. It is a different matter to summarily decide how vigilant a store patron must be to scan his path for foreign obstacles or substances, or how vigilant an invitee must be to avoid a hazard or defect that is not a regular part of a paved surface. But in this case, the seam between the asphalt driveway and the concrete pad is a commonly occurring, ordinary, and permanent part of the built environment that is unobstructed and obvious to anyone within sight of it. In this sense, the hazard presented by a slight lip at the seam is an obvious feature of the driveway in a location where it is customarily found, much in the same way that a sidewalk curb is. Therefore, in light of the specific nature of the alleged hazard in this case, the trial court correctly granted summary judgment to the defendants. Judgment affirmed. Gobeil, J., concurs fully and specially. Senior Judge C. Andrew Fuller dissents.
