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Smith v. NT Nails, LLC

Court of Appeals of Georgia

March 11, 2015

SMITH
v.
NT NAILS, LLC

Slip and fall. Cherokee State Court. Before Judge Wood, pro hac vice.

The Houghton Law Firm, John A. Houghton, for appellant.

Groth & Makarenko, Paul L. Groth, for appellee.

MCFADDEN, Judge. Andrews, P. J., Doyle, P. J., Boggs and Branch, JJ., concur. Barnes, P. J., and Ray, J., dissent.

OPINION

McFadden, Judge.

This is an appeal from the grant of summary judgment to the defendant in a slip-and-fall case. Cathy Smith filed a complaint seeking recovery for personal injuries allegedly sustained when she fell in a nail salon.

Page 647

The trial court granted the salon summary judgment because Smith knowingly and voluntarily chose to walk across the recently mopped floor. Smith appeals. Because the uncontroverted evidence shows that Smith and the salon's staff had equal knowledge of the hazard created by mopping a floor and encountered by walking across it and because Smith voluntarily exposed herself to that hazard, the trial court did not err in granting summary judgment to the defendants. We therefore affirm.

Summary judgment is properly granted when 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). " On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party." Scrocca v. Ashwood Condominium Assn., 326 Ga.App. 226 (1) (756 S.E.2d 308) (2014) (citation and punctuation omitted).

Viewed in the light most favorable to Smith as the nonmovant, the record shows that on the night in question, Smith had gone to NT Nails for a manicure and pedicure. She was the last customer in the salon, and the employees of the salon were preparing to close for the night. An employee mopped the entire floor of the salon while Smith was still receiving her pedicure. When the nail technician finished the pedicure, she gave Smith foam rubber pedicure slippers to walk in. Smith got up from the chair and walked across the floor toward the cash register to pay. After paying, she turned around and fell to the floor, injuring herself.

To survive a summary judgment motion in a slip-and-fall case,

a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff's injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one's personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come [331 Ga.App. 99] forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant's own actions or conditions under the defendant's control.

American Multi-Cinema v. Brown, 285 Ga. 442, 444-445 (2) (679 S.E.2d 25) (2009) (citation omitted). " Voluntary negligence is applicable when the invitee knew or should have known of the hazard and proceeded." Robinson v. Kroger Co., 268 Ga. 735, 743 (1) (493 S.E.2d 403) (1997).

Here, the trial court assumed for purposes of summary judgment that NT Nails had actual knowledge of the wet floor. But it found that NT Nails was nonetheless entitled to summary judgment because the undisputed evidence was that Smith's injury was caused by her disregard of a known risk and there was no issue of fact on the question of Smith's voluntary negligence. We agree. " If an invitee knows of the condition or hazard, [she] has as much knowledge as the proprietor does and then by voluntarily acting in view of [her] knowledge[, she] assumes the ...


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