Armenise v. Adventist Health System/Sunbelt, Inc., A95A1015

• Decision Date: 05 December 1995
• Docket Number: No. A95A1015,A95A1015
• Parties: ARMENISE v. ADVENTIST HEALTH SYSTEM/SUNBELT, INC. et al.
• Court: Georgia Court of Appeals

Page 58

466 S.E.2d 58

219 Ga.App. 591

ARMENISE v. ADVENTIST HEALTH SYSTEM/SUNBELT, INC. et al.

No. A95A1015.

Court of Appeals of Georgia.

Dec. 5, 1995.

Reconsideration Denied Dec. 20, 1995.

Certiorari Denied April 1, 1996.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Marietta, for appellant.

Powell, Goldstein, Frazer & Murphy, Randall L. Hughes, Adrienne E. Marting, Anne L. Thompson, Atlanta, Sharon L. Ware & Associates, Robin P. Lourie, Tucker, for appellees.

ANDREWS, Judge.

Armenise fell and fractured his leg when he stepped in an ankle-deep depression in the ground which was hidden from view by thick grass. The fall occurred while Armenise was an invitee walking across a grassy area between a parking lot in front of Adventist Health System/Sunbelt, Inc. d/b/a Smyrna Hospital (the hospital) to an adjacent medical complex owned by M.P. Equities. The hospital owned the half of the grassy area bordering on the parking lot, and M.P. Equities owned the half closer to the medical complex. Although the depression in which Armenise stepped was located on the half of the grassy area owned by M.P. Equities, there was evidence that the hospital customarily inspected and maintained the entire grassy area. Armenise sued the hospital and M.P. Equities to recover for his injuries, claiming the defendants negligently failed to keep the premises in a safe condition for invitees. The trial court granted summary judgment in favor of both defendants and Armenise appeals. ¹

The evidence showed that the hazard at issue was a narrow trench-like depression approximately ankle deep and several feet in length. It was in a neatly mowed and maintained grassy area and was not visible because it was covered by thick grass. There was no evidence as to how the depression was formed or how long it had been there. Although there was evidence the depression was in the approximate area where an underground utility line had been placed when the hospital was built in 1972, there was no evidence the depression resulted from the presence of the utility line. The hospital's landscaping supervisor testified on deposition that he looked for and located the depressed area after he learned of Armenise's fall and that the depression appeared to be a narrow grass-covered area where the ground had settled. He did not know the cause of the settlement or how long it had been there. Although there was evidence that other invitees frequently walked over the grassy area, there was no evidence that anyone had previously fallen, tripped, or slipped in the area of the hazard or in any other part of the grassy area.

The landscape supervisor also testified that he walked over and inspected the grassy area weekly, that he never discovered the grass-covered depression during his inspections, and that in order to find the depression after the fall he had to press around in the area with his feet until he pressed down the grass covering the depression. The following testimony was given by the landscape supervisor on cross-examination by plaintiff's counsel: "Q: You didn't see that trench or indentation out there. And I believe you testified in your affidavit that you surveyed the area every week? A: That's correct. Q: So it was not obvious and noticeable to you was it? A: No, it wasn't.... Q: And you walked over and surveiled the area every week, didn't you? A: Right. Q: And you didn't see it? A: I didn't see this."

The landscape supervisor further testified on cross-examination as to the inspection he conducted to locate the depression after he learned of Armenise's fall: "Q: But it [the depression] was not readily observable to you until you pressed it down and stomped around and found it? A: We had to look for it. Q: And you had to press the grass down to find the indentation, didn't you? A: Yes."

In order for an invitee to recover for a proprietor's alleged negligence in failing to keep the premises safe, there must be proof that the proprietor had superior knowledge of the hazard which was the proximate cause of the invitee's injury. Pound v. Augusta Nat., 158 Ga.App. 166, 167, 279 S.E.2d 342 (1981). Clearly, there was evidence that, despite exercising ordinary care for his own safety, Armenise was unable to discover and avoid the depression in which he stepped because it was covered by thick grass. Even if he was without knowledge of the hazard, under the superior knowledge rule, Armenise must prove the defendants had superior knowledge by showing they had either actual or constructive knowledge of the hazard. Since there is no evidence the defendants had actual knowledge of the hazard, this case hinges on proof of constructive knowledge.

Generally, constructive knowledge may be shown by two methods. The first method involves proof that an employee of the proprietor was in the immediate area of the hazard and had the means and opportunity to easily see and remove the hazard. Mitchell v. Food Giant, 176 Ga.App. 705, 708-709, 337 S.E.2d 353 (1985); Winn-Dixie, etc. v. Ramey, 186 Ga.App. 257, 259, 366 S.E.2d 785 (1988). There is no evidence in the record that an employee of either of the defendants could have easily seen and removed the hidden defect in this case. The second method is premised on the proprietor's "duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises." (Citations and punctuation omitted.) Strickland v. Howard, 214 Ga.App. 307, 308, 447 S.E.2d 637 (1994). Under this method of proving constructive knowledge, the evidence must show that the hazardous condition existed on the premises for a sufficient period of time such that a proprietor exercising ordinary care to inspect the premises should have discovered and removed the hazard. Lonard v. Cooper & Sugrue Properties, 214 Ga.App. 862, 863-864, 449 S.E.2d 348 (1994). Thus, even if a defect is hidden or obscured from view, if the evidence shows that the proprietor should have discovered it by a reasonable inspection of the premises, then an inference will arise from the breach of the duty to inspect the premises and keep it safe that the proprietor has constructive knowledge of the presence of the defect. Id.; see Food Giant v. Cooke, 186 Ga.App. 253, 255, 366 S.E.2d 781 (1988).

However, in the fulfillment of the duty to inspect the premises and keep it safe from defects, including hidden defects, the law requires only that the proprietor exercise ordinary care, not extraordinary care. OCGA § 51-3-1. "In other words, one is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it." McCrory Stores Corp. v. Ahern, 65 Ga.App. 334, 336, 15 S.E.2d 797 (1941). In this case, the nature of the depression in the ground and the fact that it was covered by thick grass were sufficient to show that the hazard had existed on the property for an extended period of time during which the defendants had a duty to inspect the property and, in fact, did inspect the property on numerous occasions. Accordingly, the issue is whether in the exercise of ordinary care the defendants should have discovered the hidden defect.

There was evidence showing that the hospital assumed responsibility for inspecting and maintaining the grassy area where the hazard existed. The hospital cut the grass in the area, and, on a weekly basis, the hospital's landscape supervisor walked over the area and inspected it. Despite these efforts, the grass-covered depression in which Armenise stepped was not discovered. The landscape supervisor testified that, after learning of the accident in the area, he had to search around in the area to find the narrow depression and was able to locate it only by stepping around and pressing down with his feet in the area where Armenise fell until his foot actually pushed down the grass covering the depression.

The defendants exercised ordinary care by conducting inspections of the premises which were reasonable under the circumstances. There was no evidence that the grassy area presented any kind of hazard requiring a closer inspection since no one else had tripped or fallen in the area. Despite conducting a reasonable inspection of the premises, the defendants simply failed to discover the hidden hazard. This is not negligence. To hold otherwise would be to impose a duty on the defendants to anticipate the existence of a hazard which they had no reason to believe existed or to impose a duty to exercise extraordinary care to inspect the premises by physically pressing down the grass on every square foot of the property to discover the possible existence of an obscured depression or indentation in the ground. "Thus, where, 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., supra at 340, 15 S.E.2d 797; Lonard, supra at 864-865, 449 S.E.2d 348.

The case of Lawless v. Sasnett, 200 Ga.App. 398, 408 S.E.2d 432 (1991), cited by Armenise as authority requiring reversal of the trial court, is distinguishable on its facts. In that case, which reversed the grant of summary judgment to the defendant proprietors, there was evidence that the obscured hazard was a knee-deep hole in the...