Watch Your Step: Creative Pleadings to Avoid the Static Condition Hazard in Premises Liability Cases
By: Derek Goff
Under normal conditions, an invitee to a business is expected to watch where he is walking, and business owners cannot be held liable for open and obvious hazards that might cause a fall. The standard adopted by Georgia and many other states has led to success for defendants at the dispositive motion stage in slip (or trip) and fall cases. Plaintiffs have taken notice and often include allegations in complaints intended to defeat the open and obvious defense in the pleadings they file. Noting these inclusions early-on can assist counsel in developing a litigation strategy designed to maximize defense arguments at the summary judgment stage.
Under Georgia law, a premises liability plaintiff “must show (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.” D'Elia v. Phillips Edison & Co., Ltd., 354 Ga. App. 696, 839 S.E.2d 721 (2020) (quoting Cherokee Main Street v. Ragan, 345 Ga. App. 405, 407, 813 S.E.2d 397 (2018)). An owner is not required to ensure the safety of invitees, but instead is required to exercise ordinary care to protect invitees from unreasonable risks of harm of which the owner has superior knowledge. O.C.G.A. § 51-3-1. Thus, if the business owner and plaintiff’s knowledge of the hazard is equal, then the premises liability cause of action may not stand. Not even building code violations will save a plaintiff’s case from the open and obvious defense. McLemore v. Genuine Parts Co., 313 Ga. App. 641, 642. Additionally, under the “prior traversal doctrine,” “when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom.” Perkins v. Val D'Aosta Co., 305 Ga. App. 126, 128, 699 S.E.2d 380 (2010).
For “static conditions,” such as a curb that is raised too high, a raised lip in adjoining sidewalks or a decorative fence, business owners are generally entitled to assume invitees will notice the condition. These static conditions are “dangerous only if someone fails to see it and walks into it.” Jones Lang LaSalle Operations v. Johnson, 350 Ga. App. 439, 440, 829 S.E.2d 629 (2019). If the invitee is able to see the condition – even if it is not noticed – then the premises liability generally fails. D'Elia v. Phillips Edison & Co., Ltd., 354 Ga. App. 696, 839 S.E.2d 721 (2020) (quoting Rentz v. Prince of Albany, 340 Ga. App. 388, 390 (1), 797 S.E.2d 254 (2017)). A “static condition” need not be unmovable; things like movable yard games have been found to be static conditions. See Rentz v. Prince of Albany, Inc., 340 Ga. App. 388, 797 S.E.2d 254 (2017) .
Plaintiffs have taken notice of the standard that must be met and have included various conditions in their complaints to excuse the failure to notice the hazardous conditions that led to their injuries. One of the more popular conditions is “poor lighting.” Perkins v. Val D'Aosta Co., 305 Ga. App. 126, 699 S.E.2d 380 (2010). In a case where an invitee to the Comfort Inn fell down a curb, he alleged the lighting conditions and the darkened surfaces of the curb contributed to his fall. Id. at 129. This was sufficient to create a question of fact for a jury. Id.
Plaintiffs also plead the “distraction doctrine” to excuse or negate the plaintiff’s failure to discover an open and obvious hazard. Bartenfeld v. Chick-fil-A, Inc., 346 Ga. App. 759, 768 (2018). The distraction doctrine lowers the standard of care for the plaintiff “in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted.” Id. In Bartenfield, a parking lot wheel stop was open and obvious, and the plaintiff argued that a nearby drive-thru window was a “distraction” excusing her failure to notice before tripping and falling. Id. at 767. This argument failed, and summary judgment was granted in favor of the defendant. Id. In another case, the presence of a large group of people was argued to be a “distraction” that negated plaintiff’s failure to notice a raised curb upon which she tripped. McLemore, 313 Ga. App. 641, 644-45 (2012). This argument was not successful either, since the distraction was not placed there by the defendant, and the people did not obstruct her view of the alleged hazard. Id. at 645 (see also Gutierrez v. Six Flags Over Georgia II, LLP, 367 Ga. App. 539, 887 S.E.2d 352 (2023), cert. denied (Nov. 7, 2023) (holding that neither a roller coaster nor other theme park patrons were a “distraction” which excused the plaintiff’s failure to notice a crack in the pavement. Gutierrez v. Six Flags Over Georgia II, LLP, 367 Ga. App. 539, 541 (2023), cert. denied (Nov. 7, 2023)).
When a hazard is open and obvious, a plaintiff is typically charged with seeing the hazard and avoiding it. The open and obvious defense has led to many dismissals at the dispositive motion stages. In response, plaintiffs have included allegations in their complaints regarding various conditions which prevented them from noticing open and obvious hazards. These include poor lighting, dark-colored hazards and even distractions, as outlined above. Identifying and noting these inclusions in the initial pleadings stage can help provide a road map for depositions; where the defense preemptively identifies potential factual questions that may defeat summary judgment, it can prepare a line of questioning for the deposition that may shore up a dispositive motion.
Attorney Contact Info
Derek Goff
derek.goff@swiftcurrie.com
205.314.2408
