ESCOBAR v. MEADOWS AND OHLY, LLC Et Al. ( 2018 )

THIRD DIVISION
ELLINGTON, P. J.,
BETHEL and GOBEIL, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 17, 2018
In the Court of Appeals of Georgia
A18A0822. ESCOBAR v. MEADOWS AND OHLY, LLC et al.
BETHEL, Judge.
Magdalena Escobar appeals the trial court’s grant of summary judgment in
favor of Northeast Georgia Health System, Inc. d/b/a River Place Medical Office
Plaza I, LLC and Meadows and Ohly, LLC (the Medical Office Defendants). Escobar
argues that the trial court should have found a dispute of material fact and denied the
Medical Office Defendants’ motion for summary judgment. We disagree and affirm.
The standards applicable to motions for summary judgment are
announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)
(1991). When ruling on a motion for summary judgment, the opposing
party should be given the benefit of all reasonable doubt, and the court
should construe the evidence and all inferences and conclusions
therefrom most favorably toward the party opposing the motion. Further,
this court conducts a de novo review of the law and the evidence.
Bruscato v. Gwinnett-Rockdale-Newton Cmty. Serv. Bd., 290 Ga. App. 638, 638-639
(660 SE2d 440) (2008) (citation omitted).
So viewed, the evidence shows that while walking near a desk inside the lobby
of River Place Medical Office Plaza, Escobar felt something grab her right pant leg,
causing her to lose her balance and fall. While on the ground, she saw a wheelchair
sitting at an angle next to the desk close to the right side of her body. Another woman
walking off an elevator moments before the fall went over and helped Escobar off the
ground. While this woman assisted Escobar, the desk attendant walked back and
noticed a wheelchair sitting two or three feet away from the desk. However, the
attendant later testified this wheelchair was not there before he left the desk to assist
another visitor, and he assumed it was placed there by another patient or family
member. Escobar later filed suit against the Medical Office Defendants for
negligence. The Medical Office Defendants moved for summary judgment, arguing
that Escobar failed to present affirmative evidence that she had tripped over the
wheelchair or that the Medical Office Defendants had superior knowledge of that
danger. The trial court agreed and granted the motion. This appeal followed.
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Pursuant to OCGA § 51-3-1, an owner or occupier of land who invites “others
to come upon his premises for any lawful purpose, . . . is liable in damages to such
persons for injuries caused by his failure to exercise ordinary care in keeping the
premises and approaches safe.” Ingles Mkts., Inc. v. Rhodes, 340 Ga. App. 769, 770
(798 SE2d 340) (2017) (physical precedent only). “[T]he true basis for liability is the
superior knowledge of the proprietor of the existence of a condition that may subject
the invitee to an unreasonable risk of harm.” Adamchick v. Cracker Barrel Old
Country Store, Inc., 281 Ga. App. 677, 678 (637 SE2d 44) (2006) (citation and
punctuation omitted). Accordingly, to prevail in a slip and fall case, a plaintiff must
show that the defendant had actual or constructive knowledge of the injury-causing
hazard, and “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.”
Pye v. Reagin, 262 Ga. App. 490, 491 (586 SE2d 5) (2003) (citation omitted).
Constructive knowledge of a hazard may be established by “showing that an
employee of the defendant was present in the immediate area and could easily have
seen the [hazard] and removed it[,]” or by showing that the hazard was on the
premises “for such a time that it would have been discovered and removed, had the
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proprietor exercised reasonable care in inspecting the premises.” Roberson v. Winn-
Dixie Atlanta, 247 Ga. App. 825, 826 (544 SE2d 494) (2001) (citation omitted).
Here, Escobar failed to point to any evidence that the Medical Office
Defendants had actual or constructive knowledge of the injury-causing hazard — that
is, the wheelchair that was next to the desk. Escobar testified that she did not initially
see a wheelchair next to the desk and was not sure what had caught her leg and
caused her to fall. Rather, she later assumed that she had tripped over the wheelchair.
Additionally, the desk attendant testified that the wheelchair was not present beside
the lobby desk when he left Escobar standing there a few moments before she fell.
Escobar did not point to any evidence contradicting the desk attendant’s testimony.
Moreover, surveillance video shows a man returning an empty wheelchair to that
same area (out of frame) just moments before a woman getting off the elevator notices
that Escobar has fallen. Thus, because Escobar cannot prove that the Medical Office
Defendants had actual or constructive knowledge of the hazard which caused Escobar
to fall, or that the hazard had been present for any notable length of time, the
judgment of the trial court must be affirmed. See Barbour-Amir v. Comcast of
Georgia/Virginia, Inc., 332 Ga. App. 279, 283-284 (2) (772 SE2d 231) (2015);
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Barich v. Cracker Barrel Old Country Store, Inc., 244 Ga. App. 550, 553 (2) (536
SE2d 221) (2000).
Judgment affirmed. Ellington, P. J., and Gobeil, J., concur.
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