Metropolitan Atlanta Rapid Transit Authority v. Fife
| Decision Date | 21 February 1996 |
| Docket Number | No. A95A2652,A95A2652 |
| Citation | 469 S.E.2d 420,220 Ga.App. 298 |
| Parties | METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. FIFE. |
| Court | Georgia Court of Appeals |
George E. Powell, Jr., Atlanta, for appellant.
Divida Gude, Atlanta, for appellee.
We granted Metropolitan Atlanta Rapid Transit Authority's (MARTA) request for an interlocutory appeal to determine whether the trial court erred in denying MARTA's motion for summary judgment on Sharon Fife's slip and fall claim. Fife's complaint alleged MARTA was negligent in failing to warn of a hazardous condition because she twisted her ankle in front of the College Park MARTA station as she stepped off the curb into a drainage culvert underneath a manhole cover.
In the order denying MARTA's motion for summary judgment, the trial court found that Fife was familiar with the MARTA station where the accident occurred, had an unrestricted view of the manhole cover, and the manhole cover was the same size and appearance as manhole covers found in the Atlanta area and elsewhere. But, the trial court held there was an issue of material fact as to whether MARTA was negligent in not posting a warning near the culvert.
Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
Construing the evidence, as we must, in favor of Fife as non-movant on summary judgment, the record shows that on October 6, 1992, Fife walked out of the College Park MARTA station at around 7:15 in the evening. It was not quite dark yet and she saw her sister, who was picking her up, pull over to the curb in front of the station. Fife was "very familiar" with the College Park MARTA station. She testified that previously she had been picked up in this same spot. Fife agreed that her sister was not parked in the "kiss and ride" area designated for picking up and dropping off passengers at the MARTA station. When shown a picture of the curb at her deposition, Fife stated the culvert appeared to be in plain view in the picture; however, she could not see it as she was walking toward it. But, Fife admitted in her deposition that she was aware that a manhole cover indicated a drainage space.
1. MARTA contends this is a static condition which is open and obvious and, therefore, it had no duty to warn. Fife claims the plain view doctrine does not apply in this instance because she could not see the drainage culvert as she was walking toward it or before she fell.
When asked what she was looking at as she stepped off the curb, Fife replied:
Also, when asked if there was anything to prevent her from seeing where she was stepping, Fife responded,
Thus, Fife has not introduced any evidence which would show that the hazard was not in plain view, but, rather that she did not look down and see the hazard because she was looking at the car door. Indeed, the picture of the curb in question shows the depression to be plainly visible to anyone standing at the curb. Accordingly, Fife's contention that the plain view doctrine does not apply is without merit.
2. Since the drainage depression was open and obvious, MARTA was under no duty to warn. An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for invitees. OCGA § 51-3-1. The basis of the owner's liability is a superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. Pound v. Augusta Nat., 158 Ga.App. 166, 279 S.E.2d 342 (1981). The hazard in this case is a "static" condition which is not dangerous unless someone fails to observe it and steps into it. Gaydos v. Grupe Real Estate Investors, 211 Ga.App. 811, 813, 440 S.E.2d 545 (1994). In cases involving static conditions, "if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition." (Citation and punctuation omitted.) Rose v. Kennesaw House, 203 Ga.App. 648, 649, 417 S.E.2d 379 (1992). Also, we have held that where there is nothing to obstruct or interfere with the invitee's ability to see the static defect, the owner is justified in assuming that the visitor will see it and realize the risks involved. Crenshaw v. Hogan, 203 Ga.App. 104, 105, 416 S.E.2d 147 (1992). A claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. Brown v. Carlisle, 214 Ga.App. 483, 484, 448 S.E.2d 256 (1994). See also Thomas v. Southwest Ga. Community Action Council, 215 Ga.App. 638, 451 S.E.2d 800 (1994) ().
Here, the hazard was in plain view and Fife testified that she was very familiar with this MARTA station and had been picked up at that same spot in the past. Therefore, Fife is presumed to have knowledge of any hazard associated with the area.
Further, where an invitee departs from the route designated and maintained by the owner for the invitee's safety, then "the degree of caution required by the invitee's duty to exercise ordinary care for her own safety is heightened by any increased risk resulting from that choice." Gaydos, supra at 813, 440 S.E.2d 545. In Gaydos, the plaintiff cut across the lawn to the parking lot instead of using the walkway provided, and tripped and fell when stepping off the sloping concrete curb. We rejected plaintiff's contention that the rule regarding static defects was inapplicable because the defect, a crack in the concrete, was not visible to a person walking toward it, and found plaintiff should have been aware of any lack of visibility and exercised greater caution. Id. at 813, 440 S.E.2d 545.
In the instant case, MARTA provided an area for picking up passengers so that they would not have to...
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