NORWICH et al.
THE SHRIMP FACTORY, INC
This opinion is uncorrected and subject to revision by the court.
BRANCH, Judge. Doyle, P. J., Miller, Dillard, and Boggs, JJ., concur. Barnes, P. J., and Ellington, P. J., dissent.
Franceska and Leonard Norwich brought this premises liability action against the Shrimp Factory, Inc., a Savannah restaurant, after Mrs. Norwich fell from a platform upon exiting a toilet stall in the women's restroom. The trial court granted summary judgment to the Shrimp Factory on the ground that the uncontroverted evidence showed that Mrs. Norwich had equal knowledge of the allegedly hazardous condition of the platform because she had previously negotiated the platform when she entered the toilet stall. On appeal, plaintiffs argue that a genuine issue of material fact remains as to whether Mrs. Norwich had equal knowledge of the hazard posed by the platform. We disagree and therefore affirm.
" On summary judgment, a trial court is not authorized to resolve disputed issues of material fact." (Citation omitted.) Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833 (1) (691 S.E.2d 852) (2010). 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 nonmovant." (Citation omitted.) Gayle v. Frank Callen Boys & Girls Club, 322 Ga.App. 412 (745 S.E.2d 695) (2013).
So viewed, the evidence shows that the women's restroom at Shrimp Factory includes two toilet stalls constructed on top of a raised platform at the far end of the restroom. To reach either of these stalls, a patron must walk across the main floor of the restroom, step up onto the platform, and then step up into the stall. The platform is 6 inches higher than the main floor, and the stall floors are 6 1/2 inches higher than the platform. The platform has the same wood flooring as the main floor, but the stall floors are made of tile.
Each stall has a door that opens outward. The step from the platform to the stall floor is located at the stall door. On the inside and outside of each stall door is a sign that says " Watch Your Step." There is a yellow stripe on the floor across the threshold of the entrance to the stalls, demarcating the step from the platform to the stall floor. The platform has two non-skid black strips on the surface in front of each bathroom stall, one of which is nearly flush with the edge of the step. A handrail extends from a wall between the two bathroom stalls to the end of the platform, to which the handrail is attached.
On the day of the accident, a hostess seated Mrs. Norwich and her husband in the restaurant, and Mrs. Norwich then went to the women's restroom. After she entered the restroom, Mrs. Norwich stepped up onto the platform and then stepped up into one of the bathroom stalls. While in the stall, she saw the sign on the inside of the door warning patrons to watch their step. She also noticed the yellow stripe on the floor marking the threshold of the bathroom stall. As she exited from the stall, Mrs. Norwich stepped down onto the platform while holding the handrail. Believing that she was on the main floor of the restroom, Mrs. Norwich took her hand off the handrail when she came to the end of it, and she looked and stepped towards the sink. She then fell onto her right foot, dislocating and fracturing her ankle.
Mrs. Norwich and her husband brought this action against the Shrimp Factory, contending that the women's restroom was negligently designed and constructed and that the Shrimp Factory had failed to take appropriate measures to make the restroom safe. The Shrimp Factory answered, denying liability, and thereafter moved for summary judgment on the ground that as a matter of law, Mrs. Norwich had equal knowledge of any alleged hazardous condition in the restroom. In opposing summary judgment, Mrs. Norwich and her husband cited her deposition testimony and the affidavits of two experts. The first expert, an engineer, averred that several building code violations in the construction of the women's restroom " contributed to" Mrs. Norwich's fall. Mrs. Norwich and her husband also submitted the affidavit of a professor of psychology, who testified that the absence of physical features at the edge of the platform created an " apparent continuity" of the floor and platform surfaces amounting to a failure in the design of the women's bathroom and the cause of Mrs. Norwich's fall.
The trial court granted the Shrimp Factory's motion for summary judgment on the ground that Mrs. Norwich had equal knowledge of the hazard gained when she successfully negotiated the step up from the main floor to the platform on her way into the bathroom stall. This appeal followed.
A premises liability plaintiff " must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant's actions or to conditions under the defendant's control." (Citation and punctuation omitted.) Perkins v. Val D'Aosta Co., 305 Ga.App. 126, 128 (699 S.E.2d 380) (2010); see also American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 S.E.2d 25) (2009).
In cases involving allegations of a static, dangerous condition such as the step at issue here, an invitee's actual knowledge of the condition relieves a proprietor of any duty to warn that invitee of that condition or hazard because " the invitee has as much knowledge as the proprietor does." Perkins, 305 Ga.App. at 128. Thus " 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." Id. (Citations and punctuation omitted; emphasis supplied); see also Cocklin v. J. C. Penney Corp., 296 Ga.App. 179, 181-182 (674 S.E.2d 48) (2009); Trans-Vaughn Dev. Corp. v. Cummings, 273 Ga.App. 505, 508 (615 S.E.2d 579) (2005); Newell v. Great Atlantic & Pacific Tea Co., 222 Ga.App. 884, 885 (476 S.E.2d 631) (1996). This rule imputing knowledge to an invitee of the danger posed by a premises feature is limited, however, " to cases involving a static condition that is readily discernable to a person exercising reasonable care for his own safety." (Citation and punctuation omitted; emphasis in original.) Strauss v. City of Lilburn, 329 Ga.App. 361, 364 (1) (765 S.E.2d 49) (2014); see also Perkins, 305 Ga.App. at 128-129; Rutherford v. Revco Discount Drug Centers, 301 Ga.App. 702, 704 (689 S.E.2d 59) (2009); Cocklin, 296 Ga.App. at 180; Newell, 222 Ga.App. at 885. This limitation of the rule imputing knowledge of a hazard is simply a restatement of the truism, still applied, that a plaintiff is held to have knowledge of " an open and obvious condition." See Wright v. K-Mart Corp., 286 Ga.App. 765 (650 S.E.2d 300) (2007) (no error in granting a store summary judgment as to plaintiff's claim arising from a trip over store's shelf corner) (emphasis supplied); Music v. Steamco, Inc., 265 Ga.App. 185, 186 (593 S.E.2d 370) (2004) (plaintiff was held to have had equal knowledge of water on steps leading from restaurant); Becton v. Tire King of North Columbus, 246 Ga.App. 57, 59 (539 S.E.2d 551) (2000) (plaintiff was held not to have exercised due care when she walked backward into a planter that was " an open and obvious condition" ).
The appeal before us thus turns on the question whether, shortly after Mrs. Norwich had ascended the step marked by black non-skid tape from the main floor to the platform without incident, any hazard posed by the same step downward from the platform to the main floor was " ...