In this slip and fall case, the Georgia Court of Appeals ruled that the trial court erred in finding genuine issues of material fact existed as to whether the property owner had superior knowledge of the hazard allegedly caused by water leaking onto a break room floor from overhead pipes where there’d been no history or report of leaks. Plus, the Court ruled that the plaintiff failed to show that the periodic inspection of the premises—for which she was directly responsible—was inadequate.
In this premises liability action, a plaintiff sued an Augusta condominium association where she worked as a security guard. Specifically, she alleged that the condo association breached a duty it owed her as an invitee. The association moved for summary judgment, which the trial court denied. They appealed, arguing that the trial court erred in concluding that genuine issues of material fact exist as to whether it had superior knowledge of the hazard and whether the plaintiff failed to exercise ordinary care for her own safety.
The association didn’t have its own employees, so it hired third-party contractors to perform the various functions required to maintain a condominium complex, including security. According to the Handbook and Operating Manual for the condo association, a safety officer’s responsibilities entailed providing security, concierge services, and routine maintenance inspections, including checking for water leaks on the premises.
In June 2012, the security company hired the plaintiff to work as a safety officer at the condo association. In August 2013, she arrived at the condo association around 8am for the start of her shift. Shortly after this, she went to the break room to put her lunch in the refrigerator. As she entered the break room, the overhead light—which was controlled by a motion sensor—went on, and she walked across the room, put her lunch in the refrigerator, and left without noticing any hazard. She didn’t go back until 4pm. But this time, as she entered, she was walking at a brisk pace, so the motion sensor didn’t immediately turn on the lights. Then, just as the light went on, she slipped and fell.
The plaintiff noticed that the floor was wet, and water was dripping down onto the floor from an overhead pipe—something she’d never seen before. She then called the vice-president of the condo association board to report the accident and the water hazard in the break room. The vice-president went to the break room to clean up the water. But she only saw a spot or two on the floor and not enough to be absorbed by the paper towel she used. And although she couldn’t see high enough to determine if the pipes had moisture on them, she thought that those pipes were the source of drops on the floor.
The Security Guard Files a Lawsuit
The plaintiff filed a lawsuit against the condo association, alleging that it breached a duty it owed her as an invitee when it failed to keep its premises free from the hazard caused by the leaky pipes in the break room.
In addition, the parties deposed a handyman who frequently did maintenance work at the complex. He reported all maintenance issues to the site supervisor for the condo association.
The condo association filed a motion for summary judgment, which the trial court denied, finding that genuine issues of material fact remained as to whether the condo association had superior knowledge of the hazard and whether the plaintiff failed to exercise ordinary care for her own safety. The condo association appealed that ruling.
Proprietors Have a Duty to Exercise Ordinary Care to Keep Premises Safe
Presiding Judge Stephen Dillard of the Georgia Court of Appeals wrote that it’s well established that a proprietor has a statutory duty to exercise ordinary care to keep its premises safe, which “includes inspecting the premises to discover possible dangerous conditions of which the [proprietor] does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.”
And for a plaintiff to recover damages for injuries sustained in a premises liability action, an invitee must prove
- That the defendant had actual or constructive knowledge of the hazard; and
- 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.
As a result, in a premises-liability case, the mere fact that the plaintiff was injured, without more, doesn’t give rise to liability on the part of a property owner. Rather, the actual basis of a property owner’s liability for an injury to its invitee is “the owner’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm.”
The condo association asserted that the trial court erred in finding that genuine issues of material fact exist as to whether it had superior knowledge of the hazard allegedly caused by water leaking onto the break room floor from overhead pipes.
A proprietor’s knowledge of the danger “may be actual or constructive.” Here, there was no evidence the association had actual knowledge that water had accumulated on the break room floor or that the overhead pipes in the room leaked or otherwise dripped water onto the floor.
In fact, the plaintiff testified that she didn’t notice any water on the floor of the break room when—upon arriving to begin her work shift—she entered the room. The condo vice-president also testified that, prior to the incident, no one—including the plaintiff or any other safety officer—ever told her that water had accumulated on the floor or that the overhead pipes in the break room were leaking. Additionally, the plaintiff’s supervisor said that in his 12 years as site supervisor for the condo association, he never saw or was made aware of any water leaks in the break room.
Nevertheless, the plaintiff maintained that the association had actual knowledge of the overhead pipes leaking water onto the break room floor, relying upon the testimony of the handyman. In his deposition, he testified that in his time working as a handyman at the association, he never noticed overhead pipes “sweating,” didn’t recall ever seeing water leaking onto the floor in the break room, and would’ve reported it to the site supervisor if he’d observed a leak. However, when asked during his deposition if he remembered telling the plaintiff’s former counsel (apparently in an interview that wasn’t transcribed or included in the record) that he’d seen pipes sweating at some point in time, the handyman responded that he didn’t recall making such a statement but wouldn’t dispute any record to the contrary.
As a result of this testimony, the plaintiff claimed that there was a genuine issue of material fact as to whether the association had actual knowledge of water accumulating on the break room floor. But the Court of Appeals said this evidence was far too speculative to raise an inference that the association had actual knowledge of any such water leaks. The handyman’s testimony raised a mere conjecture or possibility, and that’s not enough to create even an inference of fact for consideration on summary judgment. In light of these circumstances, Judge Dillard found that the plaintiff failed to present evidence that the condo association had actual knowledge of pipes leaking water onto the floor of the break room.
Under Georgia law, a plaintiff may demonstrate a proprietor’s constructive knowledge of a hazard by showing:
- evidence that the hazardous condition lasted so long that it would have been discovered and removed if the proprietor had exercised reasonable care in inspecting the premises, or
- evidence that an employee of the defendant was in the immediate vicinity of the hazardous condition and could have easily seen and corrected the hazard.
Here, there was no evidence that anyone was in the break room at the time of the plaintiff’s accident late in the afternoon (other than the plaintiff) and, therefore, whether the condo association could be deemed to have constructive knowledge of the pipes leaking water onto the floor hinged on whether it exercised reasonable care in inspecting the premises.
As such, summary judgment as to constructive knowledge arising from the duty to inspect isn’t appropriate without “plain, palpable and undisputable proof” of the following:
- Customary inspection procedures or cleaning practices were in place;
- These procedures were actually followed; and
- They were adequate to guard against known or foreseeable dangers at the time of the patron’s alleged injuries.
But the length of time the substance has to stay on the floor before the owner should have discovered it—and what constitutes a reasonable inspection procedure—varies with each case, Judge Dillard opined. It depends on a number of factors, such as the nature of the premises, the size of the premises; the number of invitees; the nature of the dangerous condition; and the location of the premises. Moreover, it’s well settled that a proprietor is under no duty to “patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous.”
In this case, it was undisputed that the security company tasked its safety officers with patrolling the condo grounds and reporting hazards such as water leaks. In fact, the plaintiff acknowledged that checking the premises for water leaks was included among her duties and that there was no water on the break room floor when she arrived that morning. Further, she presented no evidence that the premises and the break room in particular were unusually dangerous. To the contrary, the evidence showed that the break room was almost never used by residents of the complex and that only safety officers and cleaning staff visited that area.
As a result, the plaintiff failed to show that the periodic inspection of the premises—for which she was directly responsible—was inadequate. Indeed, as to inspections, “the law requires only the exercise of ordinary care, not extraordinary care.” Moreover, under Georgia law, an independent contractor is expected to determine for herself whether her place of employment is safe or unsafe, and ordinarily can’t recover against the owner for injuries sustained in the performance of the contract.
The Court of Appeals reversed the trial court’s denial of the condo association’s motion for summary judgment. River Place at Port Royal Condo. Ass’n v. Sapp, 358 Ga. App. 632, 856 S.E.2d 28 (Ga. App. March 2, 2021).