Dupree v. Hous. Cnty. Bd. of Educ.

Decision Date07 October 2020
Docket NumberA20A1034
Citation357 Ga.App. 38,849 S.E.2d 778
CourtGeorgia Court of Appeals

John William David Dozier, Macon, Dustin William Hamilton, Savannah, for Appellant.

William Rowland Jerles Jr., Perry, for Appellee.

Miller, Presiding Judge.

Ny'Tia Dupree slipped and fell on a wet staircase while exiting a Houston County School District bus. Sonya Dupree, both individually and as the next friend of Ny'Tia,1 appeals from the trial court's grant of summary judgment to the Houston County Board of Education. The appellants argue that (1) there are genuine issues of material fact as to whether the Board of Education possessed superior knowledge of the hazardous condition and as to Ny'Tia’s knowledge of the hazard; (2) the trial court erred in finding that no hazard existed; and (3) the hazard in this case was not a static defect and therefore Ny'Tia’s previous traversal of the hazard is immaterial. Our review of the record reveals genuine issues of material fact which preclude the grant of summary judgment on the appellants’ negligence claim, and we therefore affirm in part and reverse in part.2

A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. To prevail at summary judgment, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.

(Citations and punctuation omitted.) Season All Flower Shop, Inc. v. Rorie , 323 Ga. App. 529, 529-530, 746 S.E.2d 634 (2013).

Viewed in the light most favorable to the appellants, the evidence showed that in November 2015, Ny'Tia was a student at Warner Robins High School. She was aboard bus no. 1309, traveling from the career center at her school to attend the remainder of her classes. Ny'Tia testified that, as she was exiting the bus, "there was a lot of water on the second step due to the rain." She explained that the weather had been rainy all day and that there was so much water on the second step that if a person stepped in it, a splash would result. At the time, she wore flat sneakers, but she was not holding onto the handrail. While exiting, Ny'Tia’s left foot slipped, and she fell onto the ground below and broke her ankle.

The bus driver of bus no. 1309, Kevin Littles, testified that he has pre-trip and post-trip checklists, through which he verifies that the lights, bus doors, signals, stop-bar, crossing gate, and windshield wipers are working and that the fluids are adequate. Littles explained that he had been trained in keeping the aisle clear, but he could not recall being trained on warning students about hazards on the bus. According to Littles’ testimony, it also appears that the Board of Education did not have any mandatory procedures for bus drivers to follow in the event that rain falls, causing water to enter the bus. Littles occasionally has paper towels on the bus, and he also keeps a broom onboard.

Littles did not see Ny'Tia fall but recalled that the incident occurred on a day that was wet "[o]ff and on." From his vantage point in the driver's seat, Littles could see the second step of the staircase. Littles is trained to "call in" any injuries that students suffer on the bus, and, after Ny'Tia’s fall, he contacted the campus resource office for assistance. No other students fell on the bus steps that day, reported puddles on the steps, or complained that the steps were slippery. Littles testified that he had seen the steps of bus no. 1309 wet "[f]rom time to time" due to heavy rain and that such dripping can result if there is inadequate sealing at the top of the bus. Littles, however, did not observe any puddles on the bus that day and did not have difficulty navigating the steps. An engineer familiar with similar buses averred that the step treads have groves which help mitigate water accumulation and allow water to drain to the lower step or out of the bus.

The appellants filed suit against the Board of Education and John Does Nos. 1-10,3 claiming that the Board of Education was negligent by failing to inspect and discover the existence of a hazardous condition, failing to remove, remedy, and provide sufficient warning of the hazard, and by hiring and retaining an unsafe driver. The appellants asserted that the Board of Education was directly liable and vicariously liable under the theory of respondeat superior and requested damages for past and future medical expenses, pain and suffering, and lost wages. The Board of Education filed a motion for summary judgment, arguing that if a hazard in fact existed, it was clearly known and visible to Ny'Tia, but she did not use the handrail. The Board of Education also argued that the appellants failed to present evidence that Littles was negligent or incompetent or that the Board of Education knew of any such negligence or incompetence.

After a hearing, the trial court granted the Board of Education's motion for summary judgment. The trial court determined that (1) the appellants had not identified any evidence that the Board of Education had superior knowledge of a dangerous condition; (2) because 30 to 35 students had disembarked the bus before Ny'Tia and none had slipped, fallen, complained, or given notice of a hazardous condition, the appellants had not shown that Littles had the opportunity or means to discover and remove the hazard; (3) Ny'Tia had not used ordinary care for her own safety because she failed to use the handrail to traverse the steps; (4) the appellants had not identified any defect in the bus or evidence that Littles and the Board of Education failed to use reasonable care in inspecting the bus; and (5) there was no evidence in the record pertaining to negligent hiring and retention. This appeal followed.

1. First, Dupree argues that the trial court erred in granting summary judgment because fact issues persist as to whether

the Board of Education possessed superior knowledge of the hazardous conditions and as to whether Ny'Tia lacked knowledge of the hazard despite exercising ordinary care.

Premises liability lies at the intersection of tort law and property law. To recover on a theory of premises liability, a plaintiff must show injury caused by a hazard on an owner or occupier of land's premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public. When a premises liability cause of action is based on a "trip and fall" or "slip and fall" claim — and the lion's share of premises liability cases are — we have refined this general test down to two specific elements. The plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant's actions or to conditions under the defendant's control.

(Citation omitted.) Pipkin v. Azalealand Nursing Home, Inc. , 339 Ga. App. 390, 392, 793 S.E.2d 568 (2016).4 We are also aware of the

shifting burdens imposed on the parties in connection with a motion for summary judgment: To survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff's injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one's personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant's own actions or conditions under the defendant's control.

(Citation and punctuation omitted.) Henderson v. St. Paul Baptist Church , 328 Ga. App. 123, 125, 761 S.E.2d 533 (2014).

(a) Actual/Constructive Knowledge

The appellants do not contend that the Board of Education had actual knowledge of the hazard and instead argue that they presented evidence that constructive knowledge could be imputed to the Board of Education. They assert that Littles was in the immediate area of the hazard and could have easily discovered and removed it and that the Board of Education lacked inspection policies and procedures that would have led to the discovery of the hazard. We agree that the appellants presented sufficient evidence to enable a rational trier of fact to find that the Board of Education possessed constructive knowledge of the accumulated water, and the trial court erred in ruling otherwise.

Constructive knowledge can be established in one of two ways: (1) by evidence that employees were in the immediate vicinity and easily could have noticed and removed the hazard, or (2) by evidence that the substance had been on the floor for such a time that (a) it would have been discovered had the proprietor exercised reasonable care in inspecting its premises, and (b) upon being discovered, it would have been cleaned up had the proprietor exercised reasonable care in its method of cleaning its premises.

(Citation omitted.) Prescott v. Colonial Properties Trust, Inc. , 283 Ga. App. 753, 755 (1), 642 S.E.2d 425 (20...

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