Moore v. Teague, A02A1011.
Decision Date | 01 May 2002 |
Docket Number | No. A02A1011.,A02A1011. |
Citation | 564 S.E.2d 817,255 Ga. App. 220 |
Parties | MOORE v. TEAGUE. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Akin & Tate, S. Lester Tate III, Cartersville, for appellants.
Magruder & Sumner, J. Clinton Sumner, Jr., Rome, John A. Owens, Dahlonega, for appellee. ELDRIDGE, Judge.
Plaintiff Angela B. Moore, an invitee to a home products demonstration in the home of defendant Sheri A. Teague, appeals from the grant of summary judgment in her slip and fall case. Plaintiff fell in the defendant's kitchen but does not know why her legs and feet did a split; she assumed that it was from the wet floor, but she did not actually know if the floor was wet. Everyone at the party, including the plaintiff, was aware that the icemaker malfunctioned twice during the party, spilling ice onto the floor. There being no error, we affirm.
Plaintiff asserts that the trial court erred in granting summary judgment. We do not agree.
In 20 RCL1 56, § 52, it makes the statement that 2 (Emphasis in original.) Gibson v. Consolidated Credit Corp., 110 Ga.App. 170, 173(2), 138 S.E.2d 77 (1964) ( ). (Punctuation omitted.) Hunt v. Thomasville Baseball Co., 80 Ga.App. 572, 573, 56 S.E.2d 828 (1949) ( ); accord Jones v. West End Theatre Co., 94 Ga.App. 299, 302(2)(a), 94 S.E.2d 135 (1956) ( ).3 If both the owner or occupier and the invitee have equal knowledge of the dangerous defect, condition, or person, then there exists no duty to warn of what is already known to both. Gibson v. Consolidated Credit Corp., supra at 173-174, 138 S.E.2d 77. However, the owner or occupier of the premises is not relieved of the duty to keep the premises safe from such danger equally known, but the defenses of contributory negligence, assumption of risk, or comparative negligence arise to either bar recovery by the plaintiff or mitigate plaintiff's damages. See OCGA § 51-3-1; Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980); Hunt v. Thomasville Baseball Co., supra at 573, 56 S.E.2d 828. To recover for a slip or trip and fall, the plaintiff must prove: (1) "that the defendant had knowledge of the presence of the foreign substance [or the static condition]"; and (2) "[that] the plaintiff must also show that he was without knowledge of its presence" and that "[t]he customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant's negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it." (Punctuation omitted.) Alterman Foods v. Ligon, supra at 623, 272 S.E.2d 327, limited by, Robinson v. Kroger Co., 268 Ga. 735, 747-749(2), 493 S.E.2d 403 (1997). Thus, under the first prong, the plaintiff must prove either actual or constructive knowledge of the dangerous condition by the owner to avoid summary judgment. See Kenny v. M & M Supermarket, 183 Ga.App. 225, 226, 358 S.E.2d 641 (1987) ( ); DeGracia v. Huntingdon Assoc., 176 Ga.App. 495, 496(1), 336 S.E.2d 602 (1985) ( ); Player v. Bassford, 172 Ga.App. 135, 322 S.E.2d 520 (1984) ( ). Thus, it follows that if the defendant does not know of the dangerous condition and in the exercise of reasonable care does not discover it, then no duty arises either to warn of or to eliminate the dangerous condition. Therefore, absent knowledge of the dangerous condition, there can be no causation.
Causation is always an essential element in slip or trip and fall cases. Where the plaintiff does not know of the cause or cannot prove the cause, there can be no recovery, because an essential element of negligence cannot be proven. Alterman Foods v. Ligon, supra at 622-623, 272 S.E.2d 327 ( ); Kenny v. M & M Supermarket, supra at 226, 358 S.E.2d 641 ( ); Bradley v. Red Food Stores, 179 Ga.App. 39, 40, 345 S.E.2d 127 (1986) (same); Player v. Bassford, supra at 135, 322 S.E.2d 520 ( ). Where the plaintiff cannot identify the cause of the fall, summary judgment is appropriate, as here, because causation cannot be established, and therefore, the defendant's knowledge of the dangerous condition, which actually caused the fall, cannot be shown as a precondition for liability. Alterman Foods v. Ligon, supra at 621-622, 272 S.E.2d 327 ( ); Shadburn v. Whitlow, 243 Ga.App. 555, 556, 533 S.E.2d 765 (2000) ( ).
Where the cause of the fall, as in this case, is mere speculation, guess, or conjecture, there is not even a scintilla of evidence to create a material issue of fact for jury determination, because such conjecture has no probative value to create an issue of fact. Alterman Foods v. Ligon, supra at 624-625, 272 S.E.2d 327 ( ); Shadburn v. Whitlow, supra at 556, 533 S.E.2d 765 (); Febuary v. Averitt Properties, 242 Ga.App. 137, 141(2)(b), 528 S.E.2d 880 (2000) (); Head v. Sears Roebuck & Co., 233 Ga.App. 344, 345, 503 S.E.2d 354 (1998) () (punctuation...
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