Lecroy v. Bragg

• Decision Date: 25 February 2013
• Docket Number: No. A12A1681.,A12A1681.
• Parties: LeCROY et al. v. BRAGG.
• Court: Georgia Court of Appeals

319 Ga.App. 884

739 S.E.2d 1

LeCROY et al.

v.BRAGG.

No. A12A1681.

Court of Appeals of Georgia.

Feb. 25, 2013.

Begnaud & Marshall, Andrew H. Marshall, Athens, for Appellant.

Howell & Johnson, Michael William Johnson, Evan H. Howell, Atlanta, for Appellee.

McMILLIAN, Judge.

Appellee Glenda Bragg brought a premises liability action against Stephens County and county employees Jackie LeCroy and Edwin Miller seeking to recover damages for injuries she received when she stepped into a hole in the parking lot of a county-owned recycling center. The trial court, with Bragg's consent, granted the County's motion for judgment on the pleadings, and LeCroy and Miller (hereinafter defendants) moved for summary judgment based on official immunity and Bragg's equal knowledge of the hazard. The trial court denied their motion but certified its decision for immediate review, and defendants filed an application for interlocutory review in this Court. We granted defendants' application, and they timely filed the present appeal.

The following facts, taken largely from Bragg's deposition and construed in her favor as the nonmovant on summary judgment, are pertinent here: On February 17, 2009, Bragg took various items of garbage to the recycling center on White Pines Road in Stephens County for disposal. Bragg, who was driving a Ford Explorer hatchback, noticed “several little holes and [a] big one” in the pavement as she drove into the lot, which she intentionally avoided and “tried to miss completely.” Bragg parked and exited her vehicle, and then walked around to the back where she opened the hatchback and removed some of her nonbagged garbage, such as plastic laundry containers. She made the trip to and from the recycling bin without incident, and went to the back of her car and unloaded more trash. She took a step back with her left foot without any problem and began to step back with her right foot, but when she took the weight off that foot her left foot went into one of the larger holes and she fell, sustaining injuries.

According to Bragg, she did not notice the hole when she got out of her car and thought “she had plenty of room to get out of [her] door and go [to the] back [of her car],” without ever having to step over the hole. However, she also testified that she knew the hole was there, that she knew she had gone around it, and that she did not think the hole was where she was stepping. She also testified it was “fair” to say she was not watching where she was placing her foot as she stepped back, and that the hole was not obscured or difficult to see.

With these facts as a backdrop, we now turn to defendants' arguments on appeal.

1. Defendants first argue that they were entitled to summary judgment because the undisputed facts show that Bragg had equal knowledge of the hazard. We agree.

The standard to be applied in our review of cases involving the grant or denial of a motion for summary judgment is well known and oft repeated:

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.

(Citation and punctuation omitted.) McLemore v. Genuine Parts Co., 313 Ga.App. 641, 722 S.E.2d 366 (2012).

The duty of the owner or occupier of land to an invitee such as Bragg emanates from OCGA § 51–3–1, which provides

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

In a “trip and fall” case, a plaintiff must show that

(1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner's control. However, the plaintiff's evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably, and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.

(Punctuation and footnote omitted.) McLemore, 313 Ga.App. at 643, 722 S.E.2d 366.

Thus “[t]he duty imposed under OCGA § 51–3–1 does not make a premises owner an insurer of an invitee's safety, but requires the exercise of ordinary care to protect the invitee from unreasonable risks of harm of which the premises owner has superior knowledge.” (Punctuation and citation omitted.) Campbell v. Savannah Motors, Inc., 311 Ga.App. 460, 461(1), 716 S.E.2d 534 (2011).

We first determine the nature of the hazard because that characterization may impact our analysis. In this case, the hazard—the pothole—was readily discernible and of a type that we have previously deemed to be a “static defect.” E.g., Muskett v. Sketchley Cleaners, 297 Ga.App. 561, 564(3), 677 S.E.2d 731 (2009) (“Small cracks, holes, and uneven spots in pavement are considered static defects.”).

A static condition is one that does not change and is dangerous only if someone fails to see it and walks into it. If nothing obstructs the invitee's ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks. Consequently, as applied to the grant of summary judgment in this case, the issue is whether the factual evidence is plain, palpable, and undisputed that nothing obstructed [Bragg's] ability to see the pothole[ ] and thus the defect was or should have been visible to her.

(Punctuation and footnote omitted.) Thomas v. Executive Committee of the Baptist Convention of the State of Ga., 262 Ga.App. 315, 319(c), 585 S.E.2d 217 (2003). E.g., McLemore, 313 Ga.App. at 643, 722 S.E.2d 366;Ga. Dept. of Trans. v. Strickland, 279 Ga.App. 753, 755, 632 S.E.2d 416 (2006); Williams v. J.J. Butler, Inc., 253 Ga.App. 116, 117–118, 558 S.E.2d 449 (2001) (physical precedent only).

Concerning Bragg's knowledge,¹ her own deposition testimony established that the potholes were open and obvious and that nothing obstructed her ability to see the hole; indeed, the undisputed evidence shows that Bragg did see the potholes when she drove into the...