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Seago v. Estate of Earle

Court of Appeals of Georgia

March 30, 2015

SEAGO
v.
THE ESTATE OF BERRY EARLE III

Cert. applied for.

Premises liability. Thomas State Court. Before Judge Mitchell.

Apolinsky & Associates, Stephen D. Apolinsky, Tona L. Shrum, for appellant.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, James B. Thagard, for appellee.

OPINION

Page 398

Boggs, Judge.

Alan Seago brought this action against the estate of Berry Earle III for injuries he sustained in a four-wheeler accident. The trial court granted summary judgment in favor of Earle's estate, and Seago appeals. Because the evidence, construed in Seago's favor, shows that he had equal knowledge of the hazard that caused his injury but failed to exercise reasonable care for his own safety, we affirm.

An owner or occupier of land must exercise ordinary care to keep his premises safe for invitees. OCGA § 51-3-1; American Multi-Cinema v. Brown, 285 Ga. 442, 447 (3) (679 S.E.2d 25) (2009). To show negligence in a premises liability case,

a plaintiff must show that (1) the premises owner had actual or constructive knowledge

Page 399

of the hazard; and (2) the plaintiff [331 Ga.App. 700] lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner's control. However, the plaintiff's evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably, and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.

(Citation and punctuation omitted.) LeCroy v. Bragg, 319 Ga.App. 884, 885 (1) (739 S.E.2d 1) (2013). See Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 S.E.2d 403) (1997).

On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most ...

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