Wiley v. Liberty Southern, Inc.

• Decision Date: 24 March 2000
• Docket Number: No. A99A2335.,A99A2335.
• Parties: WILEY v. LIBERTY SOUTHERN, INC.
• Court: Georgia Court of Appeals

532 S.E.2d 456

243 Ga. App. 110

WILEY v. LIBERTY SOUTHERN, INC.

No. A99A2335.

Court of Appeals of Georgia.

March 24, 2000.

James M. Allison, Jr., Douglasville, for appellant.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, Kenneth B. Crawford, Carrollton, for appellee.

POPE, Presiding Judge.

Plaintiff Debra Wiley filed a complaint seeking damages for personal injuries against defendant Liberty Southern, Inc. f/k/a Carrollton Convention Center after she slipped and fell at Day's Inn-Carrollton, which is managed by Liberty Southern. The trial court granted Liberty Southern's motion for summary judgment, and Wiley filed the present appeal. We reverse.

Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the non-movant. McCoy v. Winn Dixie Stores, 238 Ga.App. 543, 519 S.E.2d 689 (1999). Viewed in this light, the evidence shows that Wiley, her husband and son began renting lodging at the motel on or about September 23, 1995. Wiley's room was on the second floor, and she used the stairs located near her room about four times a day. On October 13, 1995, at about 6:30 p.m., Wiley and her son left their room to go to the laundry room on the first floor. Wiley's son was walking ahead of her with the laundry basket and was descending the stairs when Wiley slipped at the top of the stairs and fell down almost to the bottom of the steps. Wiley testified that she did not notice anything on the floor near or on the steps before her fall but that after she fell her shoes were wet and she had a slimy, dark, thick substance on her clothes. Wiley testified she fell because of a wet spot "close to the air conditioner where the stairs were," and after she fell, a janitor mopped the floor and placed a wet floor sign in the area. Wiley also testified that she thought the water had been on the floor for days because it had mildew or algae "or something" growing in it. However, Wiley also testified that she had never noticed the spot before the day she fell.

[I]n 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. However, the plaintiff's evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff—i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Robinson v. Kroger Co., 268 Ga. 735, 748-749, 493 S.E.2d 403 (1997).

For purposes of its motion for summary judgment, Liberty Southern conceded it had actual or constructive knowledge of the hazard. Relying on the line of cases holding that a person who has previously negotiated a dangerous condition is presumed to have knowledge of the condition and cannot recover for a subsequent injury resulting from it, Liberty Southern argued and the trial court found that Wiley's testimony that the substance had been on the floor for days and that she traversed the area several times a day established her constructive knowledge of the condition and that she intentionally and unreasonably exposed herself to the hazard. It is true that

[w]hen 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. [But] [i]n cases where this rule has been applied, ... the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety.

(Citations and punctuation omitted.) Anderson v. Reynolds, 232 Ga.App. 868, 870, 502 S.E.2d 782 (1998). "A static condition, by definition, is simply one that does not change. Such a condition `is not dangerous unless someone fails to observe it and steps into it. (Cit....