While the majority of Georgia slip and fall cases involve rainwater or other liquids, we have also seen numerous lawsuits involving individuals injured after slipping on ice. How can we determine whether a claimant is entitled to recover for injuries suffered in icy conditions?
Georgia law is clear that for a plaintiff to recover from a premises owner he must establish both (1) that the landowner had actual or constructive knowledge of the hazard, and (2) that the invitee lacked knowledge of the hazard despite the use of ordinary care. Robinson v. Kroger Co., 268 Ga. 735, 493 S.E.2d 403 (1997). Thus, the true basis for an owner’s liability is superior knowledge of the existence of a condition that could subject his invitees to an unreasonable risk of injury. In other words, there must be proof of fault on the part of the owner and ignorance of the danger on the part of the invitee. Rogers v. Atlanta Enterprises, Inc., 89 Ga. App. 903, 906, 81 S.E.2d 721 (1954).
When it comes to icy conditions, the court will not assume knowledge of the invitee just because there is an ice storm. Telligman v. Monumental Properties, Inc., 161 Ga. App. 13, 14, 288 S.E.2d 846, 847 (1982). If the evidence shows the Plaintiff was without knowledge of the ice, the issue becomes whether the Defendant had actual or constructive knowledge of the particular ice formation where Plaintiff fell. Where ice accumulation on a premise is naturally occurring and not attributable to any affirmative action on the proprietor’s part, the proprietor has no affirmative duty to discover and remove it in the absence of evidence that it has become an obvious hazard by means other than the natural accumulation. Speaks v. Rouse Co., 172 Ga. App. 9, 10-11, 321 S.E.2d 774 (1984). However, if the evidence shows that the proprietor knew or should have known of icy conditions at the approach or entrance to the store, they may be liable for Plaintiff’s injury. Telligman, supra.
In cases where the plaintiff makes a conscious decision to step upon a surface which he/she visually perceives to be different from the surface of the immediate surrounding premises, the courts have found that he/she had equal knowledge of the condition and assumed the risk, especially where the parking lot is otherwise dry and free of ice or any other dark patches. Pennington v. Cecil N. Brown Co., 187 Ga. App. 621, 623-624(3), 371 S.E.2d 106 (1988). For instance, in Elder v. Care-More, Inc., a case in which the plaintiff slipped on ice at the covered entryway of her husband’s nursing home, the court held that the plaintiff was precluded from summary judgment because she did not exercise ordinary care. Elder v. Care-More, Inc., 224 Ga. App. 712, 713, 481 S.E.2d 870, 871 (1997). The court reasoned that “Elder indisputably was aware of the perilous outdoor wintry conditions. Further, she testified that she observed snow in the nursing home parking lot… Elder was obligated to use all of her senses in a reasonable manner to learn of and discover the ice so that she could traverse it safely. It was incumbent upon her to keep a careful lookout, especially given the prevailing adverse conditions.”
An exception is when the plaintiff has no alternative but to traverse a known icy condition. In Hull v. Massachusetts Mut. Life Ins. Co., the plaintiff was a tenant of the landlord defendant. 142 Ga. App. 269, 269, 235 S.E.2d 601, 601 (1977). During a period of cold weather, ice would often form on plaintiff’s stairway due to a defect which was allegedly known by the defendant. Id. The stairway was the sole means of egress from the plaintiff’s apartment. With full knowledge of the danger, she slipped while traversing the ice. Id. The Court reversed summary judgment. “To hold otherwise, we would make the [plaintiff] a captive in her own apartment during cold weather, forcing her to abandon her very means of livelihood until such time as the [defendant] found it convenient to remedy the dangerous situation…It is for the jury to determine whether the [defendant] was negligent and whether the [plaintiff] assumed the risk. If the jury should determine that the [plaintiff] could reasonably have avoided the dangerous ice by remaining in her apartment or by taking further actions on her own accord to lessen the danger, then it must find that she assumed the risk.” Id. at 269-70.
All in all, analysis of liability for slip and fall cases involving ice is analogous to typical slip and fall incidents. Review of these cases makes clear that proprietors should be mindful of icy conditions at store entrances, and take steps to address ice and snow buildup at those areas. A smart and proactive approach to preventing accumulation of ice and snow will not only stop injuries from happening, they will help shield proprietors from potential liability.
Maureen “Molly” O’Connor