Aggeles v. Theater of Stars, Inc.

Smith, Judge.

In Aggeles v. Theater of the Stars, 227 Ga. App. 227 (488 SE2d 724) (1997), in which the facts are fully set out, we affirmed the trial court’s grant of summary judgment to Theater of the Stars in this personal injury action filed by Elizabeth Ann Aggeles against the theater. The Supreme Court granted Aggeles’s petition for writ of certiorari and then remanded the case to this Court for reconsideration in light of its holding in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). We conclude that Robinson requires reversal of the trial court’s grant of summary judgment to the theater.

In Robinson, the Supreme Court engaged in an extensive discussion of the “pendulum-like” treatment of slip and fall cases by the appellate courts of this state. Id. at 735. The Court focused in large part on the swing of that pendulum toward “the rare case which escaped summary adjudication” after the issuance oí Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). Robinson at 736. This analysis includes discussion of the “weighty burden placed on slip- and-fall plaintiffs by Alterman Foods,” id. at 747, after Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) was decided and a modification of Alterman Foods “to regain balance in the allocation of the burden of proof.” Robinson at 747.

Under Robinson, a plaintiff need no longer come forward with evidence disproving his or her negligence until it is established the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff’s injuries were caused by his or her own voluntary negligence or failure to exercise ordinary care. Id. at 748. And to show negligence on the part of a plaintiff, the defendant in a slip and fall case must show “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.” Id. at 749. A court ruling on a motion for summary judgment must determine “whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Id. at 748.

We observed in our previous decision that just before descending the staircase, Aggeles successfully ascended it using the outside handrail on the opposite side. We further noted that the handrails on each side of the staircase are identical in their placement. Aggeles, supra at 227. Before Robinson was issued, under this evidence, summary judgment in the theater’s favor was warranted; Aggeles testified that she had no problem seeing as she ascended the stairs, and the law authorized a holding that she therefore should have known of the handrail’s condition on either side of the stairway.

But in light of the mandate in Robinson that the evidentiary burden on plaintiffs be lightened and its emphasis on the expediency of summary adjudication in only plain, palpable, and undisputed cases, id. at 748, we conclude that summary judgment in the theater’s favor was not appropriate. The record does not show that Aggeles actually knew that the handrails on either side were identically constructed, and the evidence therefore does not demand a finding that she successfully negotiated the stairway moments earlier and thus had knowledge of the condition equal to that of the theater. See Ray v. Restaurant Mgmt. Svcs., 230 Ga. App. 145, 146 (495 SE2d 613) (1998). Moreover, we cannot say as a matter of law that Aggeles was required to look at each handrail before ascending the stairway, nor are we at liberty to hold as a matter of law that any failure to observe the condition of the handrails amounted to an intentional and unreasonable exposure to a risk. The issues in this case are simply routine ones relating to whether a defendant had superior knowledge of a hazard and whether an invitee exercised ordinary care for her own safety. These issues therefore are not subject to summary adjudication, and the trial court erred in granting summary judgment to the theater.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. McMurray, P. J., and Eldridge, J., concur specially. Andrews, C. J., Beasley and Ruffin, JJ, dissent.