Jones Lang Lasalle Operations, LLC v. Dan Johnson ( 2019 )

FIFTH DIVISION
MCFADDEN, P. J.,
MCMILLIAN and GOSS, 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
June 13, 2019
In the Court of Appeals of Georgia
A19A0084. JONES LANG LASALLE OPERATIONS, LLC et al. GS-003
v. JOHNSON.
GOSS, Judge.
We granted this interlocutory appeal to consider whether the trial court erred
when it denied summary judgment to the defendant owners of a restaurant sued by
Dan Johnson, who fell on an attempt to descend the last step between the restaurant’s
entrance landing and stairs and its parking lot. The defendants argue that they are
entitled to summary judgment because Georgia law bars recovery by a plaintiff who
has previously traversed a static hazard under substantially the same conditions as
those prevailing when he fell. We find no error and affirm the trial court’s denial of
summary judgment.
Summary judgment is proper if the pleadings and evidence “show that there is
no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law[.]” OCGA § 9-11-56 (c). “A de novo standard of review
applies to an appeal from a grant of summary judgment, and we view the evidence,
and all reasonable conclusions and inferences drawn from it, in the light most
favorable to the non-movant.” (Citation and punctuation omitted.) Norwich v. The
Shrimp Factory, Inc., 332 Ga. App. 159, 160 (770 SE2d 357) (2015).
Thus viewed in favor of Johnson as the non-movant, the record shows that a
series of stairs and single-step landings connects Dantanna’s restaurant, located in the
Shops Around Lenox shopping center in Atlanta, to the parking lot below it. Each of
the three sets of stairs contains a handrail in the center, but the handrails do not
extend onto the landings. The stairs, landings, and parking lot are generally the same
color, and there are no warning signs or paint on the stairs or landings. From the time
the defendant owners purchased the property in December 2013 to the plaintiff’s fall
in April 2015, defendants did not receive any reports of falls occurring on the stairs
or landings. Johnson later testified, however, that a parking lot attendant who saw his
fall and offered assistance told him at that time that “[w]e have people trip on that
step all the time.”
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On April 2, 2015, Johnson and the colleague went to have lunch at the
restaurant, arriving around 11:30 a.m. Johnson had never been to the restaurant
before. It was daylight, overcast, and mild when they arrived, and Johnson ascended
the landings and stairways into the restaurant without any difficulty. He did not drink
alcohol during lunch, and when he left around 1:00 p.m., the weather conditions were
the same as when he arrived. When leaving, Johnson used the same set of steps he
had an hour earlier but fell as he attempted to walk into the parking lot, apparently
failing to realize there was a final, single step there off the bottom landing.
Johnson testified that he did not notice anything “odd” or “hazardous” about
the stairs as he ascended them. He testified that he was talking to his colleague but
paying attention while descending and that when he reached the last landing, he did
not see the single step to the parking lot because it was unmarked, looked the same
as the landing, and had no railing or warning signs. Johnson also testified that
although he was looking straight ahead, he likely glanced down to confirm his
perception that he had finished descending, and that the blind step caused him to
“step into air” without knowing that there was a change in elevation. The colleague
averred that Johnson was paying attention while descending the stairs and that the
landing step where he fell did not have any railings or markings and was not readily
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apparent on descent. Johnson also produced an expert in premises liability and safety
and loss prevention, Jeffrey Gross, who averred that the bottom step from the landing
to the parking lot was inherently dangerous and created an unreasonable fall hazard
to persons descending the stairs, as it had no handrails and was not marked with
contrasting paint or warning signs. He averred that unmarked single-step risers
present more problems to persons descending steps than when ascending, as the face
of the step can only be seen during ascent and not descent.
The defendants filed a motion for summary judgment, arguing that the plaintiff
was barred from recovery because knowledge of the alleged hazardous condition was
imputed to him based on his prior successful traversal of it about an hour before his
fall under the same conditions. Johnson responded that he had presented evidence the
defendants had superior knowledge of the unreasonable safety hazard posed by the
unmarked landing where he fell. The trial court denied defendants’ motion,
concluding that it could not find as a matter of law that they fulfilled their duty to
avoid creating an unreasonable risk of foreseeable harm. Specifically, the court held
that questions of fact remained as to whether the hazard posed by the last single step
was “readily discernable,” whether Johnson had equal or greater knowledge of the
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hazard, and whether he exercised ordinary care for his own safety. This interlocutory
appeal followed.
A static condition is “one that does not change and is dangerous only if
someone fails to see it and walks into it.” Bullard v. Marriott Intl., 293 Ga. App. 679,
681 (2) (667 SE2d 909) (2008). In a slip-and-fall case involving allegations that a
static condition, such as the landing on which Johnson fell, is dangerous,
the basis of the proprietor’s liability is his superior knowledge and if his
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. . . .
[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 equal
knowledge of it and cannot recover for a subsequent injury resulting
therefrom.
(Citations and punctuation omitted.) Perkins v. Val D’Aosta Co., 305 Ga. App. 126,
128 (699 SE2d 380) (2010). But “the rule imputing knowledge of a danger to a
person who has successfully negotiated an alleged dangerous condition before applies
only to cases involving a static condition that is ‘readily discernible’ to a person
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exercising reasonable care for his own safety.” (Citations and punctuation omitted.)
Id. at 128-129.
Here, Johnson and his colleague both testified that the step down from the final
landing to the parking lot surface was not readily discernible, and it is undisputed that
there were no markings, warning signs, or handrails there. As in Perkins, then, which
also involved a step down from a curb into a parking lot, these defendants were
“charged with notice of the [step’s] height in relation to the parking lot, the lighting
conditions, the view of the curb for someone descending the stairs, and the absence
of any paint or warning signs” in the area, such that their superior knowledge of the
hazard posed by the final step is a jury question. 305 Ga. App. at 129 (reversing a
grant of summary judgment to defendant owner); see also Strauss v. City of Lilburn,
329 Ga. App. 361, 364 (1) (765 SE2d 49) (2014) (reversing a grant of summary
judgment to defendant owner when there was “no evidence” that the plaintiff “had
actually walked either up or down” the single step at any time prior to her fall). Our
decision in Norwich, supra, is distinguishable on a number of grounds, including the
mere “moments” between that plaintiff’s successful ascent of a step and her fall down
the same, the unchanged interior lighting conditions, and the presence of a warning
sign. See 332 Ga. App. at 162. And we are not bound by our decision in Joe
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Enterprise, LLC v. Kane, 341 Ga. App. 12 (798 SE2d 97) (2017), which is physical
precedent only, because that plaintiff could not say how she fell and because the
alleged hazard was “open and obvious.” Id. at 14-15 (1), 17 (2).
Here, genuine questions of fact remain as to whether the step on which Johnson
fell was readily discernable and thus as to his equal knowledge of any hazard posed
by that condition and his reasonable care as to his own safety. We therefore affirm the
trial court’s denial of defendants’ motion for summary judgment.
Judgment affirmed. McFadden, P. J., and McMillian, J., concur.
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