Ponder v. Brooks, A02A1638.

• Decision Date: 18 July 2002
• Docket Number: No. A02A1638.,A02A1638.
• Citation: 569 S.E.2d 267,256 Ga. App. 596
• Parties: PONDER v. BROOKS et al.
• Court: Georgia Court of Appeals

569 S.E.2d 267

256 Ga. App. 596

PONDER v. BROOKS et al.

No. A02A1638.

Court of Appeals of Georgia.

July 18, 2002.

Edwards & Youmas, Lonzy F. Edwards, Macon, for appellant.

Jones, Cork & Miller, Thomas C. Alexander, Macon, Christopher B. Jarrard, for appellees.

ANDREWS, Presiding Judge.

Eddie Ponder appeals from the trial court's order granting summary judgment to William Brooks, M.D., and South Macon Family Physician's Clinic (the clinic) on Ponder's slip and fall claim. Because Ponder had equal knowledge of the alleged hazard, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).

The record shows that on the day of the accident, Ponder went to the clinic to pay a medical bill for his wife. Ponder had a prosthesis on his right leg and walked with a cane. Ponder stated at his deposition that as he was walking up to pay the bill, some people were coming out of one of the doors into the waiting room and he stepped aside to let them pass. As he did so, he hit a magazine table with his artificial leg and fell.

Ponder acknowledged that he had been going to the clinic for years, both for his own appointments and with his wife, and said he knew the table was there. There was evidence, which Ponder does not dispute, that the table had been in the same place in the waiting room for at least 15 years.

Defendants submitted the affidavit of Dr. Brooks and pictures of the waiting room which show that the distance from the table to the nearest wall is five feet seven inches and the distance from the table to the door through which Ponder said the people were exiting was eight feet five inches. There is also undisputed evidence that there had never been a previous fall in the waiting room or any complaints about the placement of the furniture. Further, the pictures show that the table was clearly visible and was not blocking any ingress or egress. Brooks stated that the table had never occasioned any comment from the fire marshal or any other inspector.

The trial court granted summary judgment to Brooks and the clinic, holding that the magazine table was a static condition and Ponder could not recover because he knew of the condition and therefore defendants were under no duty to warn and were not liable for any resulting injury. This appeal followed.

In order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. The fundamental basis for an owner or occupier's liability is that party's superior knowledge of the hazard encountered by the plaintiff. If an invitee knows of the condition or hazard, [he] has as much knowledge as the proprietor does and then by voluntarily acting in view of [his] knowledge[, he] assumes the risks and dangers incident to the known condition. In everyday life, persons are required to negotiate ... floors, steps and doorways.

(Punctuation and footnotes omitted.) Yasinsac v. Colonial Oil Properties, 246 Ga.App. 484, 485(1), 541 S.E.2d 109 (2000).

Ponder argues on appeal that even though he was aware of the hazard, he was distracted by the people coming out of the door into the waiting room. But, "the distraction doctrine does not apply where the...