Senior Associate Molly O’Connor’s client First Baptist Church of Snellville was recently granted summary judgment in a trip and fall case where the Plaintiff, Eugenia Holden, tripped over a handicap curb while approaching the main entrance of the church for a Christmas event. What was especially interesting about this suit was that Plaintiff admitted to being a former member of the church, getting married there, and having visited approximately 2,800 times; but she claimed she had never used the entrance where she fell and that it was dark and poorly lit. She also admitted to her detriment that she saw the handicap ramp curb rise which was painted yellow, but she tripped on it and fell face forward injuring her right arm.
As many of you know, a plaintiff cannot recover in a premises liability suit unless the defendant had superior knowledge of the hazard. The defendant is entitled to summary judgment if there is no evidence that it had superior knowledge or the undisputed evidence demonstrates that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant. Norman v. Jones Lang Lasalle Americas, Inc., 277 Ga. App. 621, 624, 627 S.E.2d 382, 386 (Ga. App. 2006).
The “defect” that Plaintiff alleged caused her fall is a triangular piece of concrete that changes in level until it finally becomes completely flat forming a handicap ramp which begins a walkway leading to the main entrance to the church. The walkway is covered by a canopy. Plaintiff admitted she saw the curb before she tripped over it and that the curb was painted yellow at the time of her fall; but states it was dingy yellow and too dark to see. It is approximately 4 to 5 inches high. Her statements in themselves were contradictory. We were able to convince the Judge that it was patently evident from the photographs and facts presented in this case that the subject curb was an open and obvious condition; that she admitted she saw it before she tripped; and having seen it, she should have avoided it.
Georgia law is clear. Business owners are not required to keep their parking lots and other common areas free from irregularities and trifling defects; invitees are “not entitled to an absolutely smooth or level way of travel.” Wright v, MN Structured Finance, Inc., 239 Ga. App. 685, 686 (1999) (summary judgment affirmed). When a condition is open, obvious, as well as static, a business owner does not have a duty to warn its customers of the condition. Id. at 687 (A condition that is open and obvious can be avoided in the exercise of ordinary care. There is no duty to warn of the obvious.) Herschel McDaniel Funeral Home, Inc. v. Hines, 124 Ga. App. 47, 49 (1971); see also Lee v. Peacock, 199 Ga. App. 192 (1991). Moreover, the Georgia Court of Appeals has held that an owner is “justified in assuming that the visitor will see [the open, obvious, static condition] and realize the risks involved.” Rowland v. Murphy Oil USA, Inc., 280 Ga. App. 530, 532 (2006). Small cracks, holes and uneven spots in pavement, where there is nothing to obstruct or interfere with one’s ability to see them, are common occurrences and are, as a matter of law, “static defects.” Tanner et al. v. Larango et al., 232 Ga. App. 599, 600 (1998); Long John Silver’s, Inc. v. Coleman, 223 Ga. App. 864, 865 (1996). An owner is justified in assuming that invitees will see such static defects and recognize any associated risk. Id.
Georgia courts have held that it is common knowledge that uneven spots exist on exterior concrete and that such minor or trifling defects, as a matter of law, do not constitute grounds for recovery in a negligence action. Id., see also Piggly-Wiggly Southern v. Bennett, 217 Ga. App. 496, 497 (1995). In Piggly-Wiggly Southern, the court held that summary judgment was appropriate where the record showed that plaintiff tripped on an uneven portion of pavement joining the parking lot and grocery store ramp. Id. at 497. There, the court held, that uneven pavement is a static, trifling defect and since nothing obstructed plaintiff’s view of the static defect, summary judgment was appropriate. Id.
Similarly, in Long John Silver’s, the court held that a hole in a concrete ramp less than two inches in width and large enough for the heel of the plaintiff’s shoe to become caught was insufficient, as a matter of law, to sustain a negligence action. 223 Ga. App. at 866. Lastly, in Emory University v. Duncan, plaintiff sought recovery for the injuries she sustained upon falling at “the entryway of Cox Hall when the toe of her shoe caught on a one-inch rise in the concrete.” 182 Ga. App. 326, 327 (1987). There, the court stated that “it was incumbent upon her, as a matter of law, to use her eyesight for the purpose of discovering any discernible obstruction or defect in her path.” Id. at 329, (emphasis added).
In our case at the time of her fall, Plaintiff was walking from the handicap parking lot to the entrance of the church. She should have expected there to be a handicap ramp at the entrance of the sidewalk considering she had parked in a handicap parking space. Furthermore, she admitted in her testimony she saw the ramp, that she saw the curb “because I went to step up on it” and “it was next to a handicap ramp.” She identified the very thing she tripped on and testified that she saw it before she tripped on it. Lastly, she admitted it was painted yellow as further warning to visitors to use caution. Plaintiff’s trip and fall on an exterior concrete surface where such conditions commonly occur echoes the cases that have been held insufficient to sustain a negligence claim in Georgia courts and should not be allowed to be heard by a jury. Plaintiff argued that the curb cut did not comply with the American Disabilities Act or Georgia Code. However, we proved that the ADA does not apply to churches. 42 USC § 12187 states that the provisions of the ADA shall not apply to religious organizations or entities controlled by religious organizations, including places of worship. White v. Denver Seminary, 157 F. Supp. 2d. 1171 (USDC CO 2001.) explains that Title III of the ADA’s exemption is very broad, encompassing a wide variety of situations and that religious organizations have no obligations under the ADA. Even when a religious organization carries out activities that would otherwise make it a public accommodation, the religious organization is exempt from ADA coverage. That includes places of education. Furthermore, even if they did apply, the argument is moot because Plaintiff had equal knowledge. Strike one against the Plaintiff, the Judge agreed.
We also proved that SFBC was not required to conduct an inspection that discloses every latent defect on the property; if this were the rule then proprietors would be absolutely liable for all defective conditions on their property. The law does not impose such absolute liability.” Thomas v. Deason, 289 Ga. App. 753, 756 (2008). The duty to inspect arises from a proprietor’s knowledge that others have tripped or fallen in the same area, or other such evidence that suggests that an inspection of the designated area is necessary. McCrory Stores Corp. v. Ahern, 65 Ga. App. 334 (1941).
In this case, prior to the date of Plaintiff’s fall, Defendant SFBC was not notified of any potential hazards in the parking lot or adjacent walkway, nor did it have a reason to suspect the presence of any potential hazards. No one had fallen at that spot before. Given the foregoing, SFBC was not required to inspect the curb, the parking lot or adjacent walkway when it had no actual knowledge of any defect or hazard. “[W]here, as here, there was no actual knowledge of the alleged dangerous and unsafe condition, and there is nothing in the [record] to show or indicate the propriety or necessity of making an inspection to ascertain the possible or probable existence of any defect, such as that other people had tripped or fallen [in the same area], ordinary diligence did not as a matter of law, under the facts [as shown], require an inspection [sufficient to reveal the defect] where the defendant[s] had no reason to think [such] an inspection was necessary.” McCrory Stores Corp., 65 Ga. App. at 340. Plaintiff failed to present any evidence that someone had previously fallen in the parking lot, and/or walkway in question. Moreover, hearsay, guesses and speculation cannot defeat summary judgment. See Tuggle v. Helms, 231 Ga.App. 899 (1998).
Moreover, we did show that SFBC did routinely clean the handicap ramp/curb area and inspected any defects or hazards that needed to be removed. Part of the security and maintenance staff’s job was to maintain the facility. Employees supervised the maintenance of the building which included routinely changing light bulbs which were burnt out, re-painting curbs with yellow warning paint, placing signage around the property, pressure washing the outside of the church building, and other duties. Once a year the entire parking lot was swept by a third party vendor. Considering this was a static condition, there was not much more maintenance to be done. Strike two.
Similar to the facts in Becton 246 Ga. App. 57, 59 (2000) (Invitee should have exercised extraordinary care in a store which the invitee had never visited, and his failure to do such is evidence of failure to exercise the prudence of an ordinary careful person); Plaintiff had never been to this entrance at SFBC. Hence, Plaintiff should have exercised extraordinary care for her own safety. (Emphasis added). She knew she had parked in the handicap area and admits she saw she was approaching the handicap ramp and that she saw the curb before she tripped over it. When repeatedly asked why she fell she can give no clear explanation other than it was dark; yet she admits she saw the curb. This testimony is contradictory. In actuality she simply misjudged the curb’s height. Had she been looking more carefully, she would have stepped up higher onto the curb to avoid tripping. She also could have avoided the curb altogether and entered on the flat part of the ramp. She failed to do so, and strike three, the Judge granted SFBC’s Motion for Summary Judgment.