Ballard v. Southern Regional Medical Center, Inc.

Decision Date19 January 1995
Docket NumberNo. A94A2107,A94A2107
Citation216 Ga.App. 96,453 S.E.2d 123
CourtGeorgia Court of Appeals

Nick Long & Associates, Jonathan L. Leach, Atlanta, for appellant.

Alston & Bird, R. Clay Milling II, Dow N. Kirkpatrick II, Atlanta, for appellee.

BEASLEY, Chief Judge.

Ballard went to Southern Regional Medical Center to correct an error on the records concerning a broken toe he had suffered two days earlier. While walking down a hallway he supported himself by using a handrail mounted to the wall. The handrail pulled out from the wall and Ballard fell and was injured. He sued Southern Regional, alleging that its negligent inspection and maintenance of the handrail caused his injuries. The court granted Southern Regional's motion for summary judgment and Ballard appeals.

1. It is not disputed that Southern Regional's duty to keep its premises reasonably safe included a duty to keep the handrail in good repair. "Having undertaken to provide a handrail, [Southern Regional] was obligated to maintain it non-negligently. [Cit.] '(A) business invitee may reasonably assume that the furnishings upon business premises, when they present no obvious hazard, are safe for the use for which they apparently were intended; and ordinary care requires a business proprietor, who has the opportunity to discover the condition of furnishings he places on the premises, to ascertain that they are safe for use under the conditions contemplated.' [Cit.] Accordingly, if [Southern Regional], in the exercise of ordinary care, knew or should have known that its handrail was loose and if, but for the loose handrail, [Ballard] would [not have fallen] [Southern Regional] may be found liable for appellant's injuries. '(T)he rule ... is that if the defendant, by the exercise of ordinary care, could have discovered the defect causing the injury, he will be liable for a failure to warn invitees coming upon the premises of such defect even though he did not actually know of its existence, where such defect proximately contributes to the injury.' [Cit.]" Spencer v. Little Brownie Properties, 203 Ga.App. 324, 325, 416 S.E.2d 851 (1992). 1 Ballard testified that the handrail did not look defective before the accident; he gave no testimony to the effect that it felt loose before it pulled from the wall "like an explosion."

Southern Regional contends that summary judgment was proper because no evidence was presented that it had any superior knowledge of a dangerous condition concerning the handrail. 2 The principle of equal or superior knowledge is not limited to slip and fall cases, but "applies to 'static' defective or dangerous conditions on property. [Cit.]" Ga. Ports Auth. v. Hutchinson, 209 Ga.App. 726, 727(2), 434 S.E.2d 791 (1993). " ' " 'The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner ... and not known to the person injured that a recovery is permitted.' (Emphasis in original.) (Cit.)" (Cit.)' [Cit.]" Westbrook v. M & M Supermarkets, 203 Ga.App. 345(1), 416 S.E.2d 857 (1992). See Alterman Foods v. Ligon, 246 Ga. 620, 622, 272 S.E.2d 327 (1980); Sarantis v. Kroger Co., 201 Ga.App. 552, 411 S.E.2d 758 (1991).

There was no evidence that Southern Regional was actually aware the handrail was defective, but liability can also be founded on constructive knowledge. Flood v. Camp Oil Co., 201 Ga.App. 451, 452, 411 S.E.2d 348 (1991). There was no evidence that any employee of appellee in the immediate vicinity could easily have noticed the dangerous condition. See Madaris v. Piggly Wiggly Southern, 205 Ga.App. 405, 406-407(2), 422 S.E.2d 273 (1992). " ' "Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)" (Emphasis supplied). (Cit.)' [Cit.]" Thompson v. Regency Mall Assoc., 209 Ga.App. 1, 3(1), 432 S.E.2d 230 (1993). This is so because " '[w]ithout such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.' [Cit.]" Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 345(4), 226 S.E.2d 142 (1976).

Matthew Henry, safety coordinator of Southern Regional, stated in an affidavit that its employees "constantly monitor and inspect [the] physical plant." The affidavit does not state what that monitoring and inspection entails and does not state when the handrail in question was last inspected before the accident. It does state that Henry had no actual knowledge that the handrail was defective.

Ballard argues that Henry's affidavit does not show any reasonable inspection procedure. It only states that the hallway was "patrolled" on a continual basis, but gives no indication of when that was done or what measures were taken during the patrol to ensure that handrails were safe. Ballard also notes that after the accident, Southern Regional tightened another handrail near the one that gave way; he contends that the fact that this defect was also undiscovered prior to the accident shows the inspection procedure to be unreasonable. Even if the affidavit fails to establish reasonable inspection procedures, that alone does not preclude summary judgment.

Ballard cites Food Giant v. Cooke, 186 Ga.App. 253, 254-255(1), 366 S.E.2d 781 (1988), for the proposition that, as movant, it is Southern Regional's burden to show by uncontroverted evidence that it had no constructive knowledge of a defective condition, and that only then would any burden be placed upon him to produce evidence of Southern Regional's constructive knowledge. He argues that Henry's affidavit is insufficient as a matter of law to meet Southern Regional's burden to produce evidence on this issue and he therefore has no burden. While Ballard's analysis of Food Giant is correct, Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), held that "the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." As Southern Regional argued in support of its motion, on the issue of constructive knowledge of the defect there was an absence of evidence as to the period of time the condition existed. Compare Duffee-Freeman, Inc. v. Knudsen, 90 Ga.App. 111(1), 82 S.E.2d 44 (1954), where there was evidence that the handrail appeared in a loosened state for more than a week.

Thus, even though Southern Regional did not produce conclusive evidence that it had employed reasonable inspection procedures, at trial Ballard would have the burden of demonstrating that the defect existed for a sufficient amount of time to allow a reasonable inspection to discover it in order to charge Southern Regional with constructive knowledge. The reason is that there is no duty to discover a defect which is not manifested until the incident causing injury. Southern Regional's duty to warn of or repair the defect arose if, by the exercise of ordinary care, it could have discovered the defect. Spencer, supra 203 Ga.App. at 325, 416 S.E.2d 851. Proof on the issue is Ballard's burden and Southern Regional correctly pointed out that evidence of it was lacking. Lau's Corp., supra.

2. Ballard also argues that he can recover under the doctrine of res ipsa loquitur. It can only be applied in "cases where there is no evidence of consequence showing negligence on the part of the defendant. [Cits.]" Southern Bell Tel.,...

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