DILLARD, C. J., RAY, P. J., and SELF, J.
Prince sued Robert Simmons to recover damages for injuries he
suffered when he fell through the balusters of a railing
which surrounded the front landing of a second floor
apartment. At the time of the fall, Simmons rented
the apartment to a tenant, and Prince was at the apartment as
a guest of the tenant. Prince alleged that his fall resulted
from the negligent construction and maintenance of the
railing balusters and that the railing balusters failed to
comply with applicable building and safety codes.
Specifically, Prince asserts that "[t]he excessively
large gap in the landing railing [balusters] through which
[he] fell was unreasonably dangerous." We granted
Simmons' application for an interlocutory appeal from the
trial court's denial of his motion for summary judgment.
For the following reasons, we find that Simmons was entitled
to summary judgment and reverse.
judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law. We review a grant or denial of summary judgment de novo
and construe the evidence in the light most favorable to the
nonmovant." (Citations omitted.) Gaskins v.
Berry's Boat Dock, 334 Ga.App. 642, 642 (780 S.E.2d
in favor of Prince, the record shows that the incident
occurred on the second floor of an apartment complex known as
Simmons Apartments, located in Statesboro, Georgia. Simmons
Apartments is owned and operated by Simmons, who constructed
the apartment complex in 1975. The railing surrounding the
second floor landing of the apartment at issue is supported
by balusters which have gaps between them that are large
enough for an adult to fall through.
night of January 11, 2015, Prince was walking home from his
grandfather's house when it started to rain heavily.
Desiring to get out of the rain, Prince decided to stop and
visit his cousin, whose apartment was located on the second
floor of Simmons Apartments. Later, as he was exiting his
cousin's apartment, Prince was walking toward the railing
when he slipped and fell feet-first through a gap between the
railing balusters, landing on the pavement below. At his
deposition, Prince testified that he had been to his
cousin's apartment "[m]aybe three times" on
other occasions prior to the incident, that he had always
visited the apartment at approximately the same time of
night, and that he had noticed the railing balusters before.
Furthermore, Prince acknowledged that nothing had changed
regarding the condition of the railing balusters and that
nothing had obstructed his view of the railing balusters at
the time of the incident. Lastly, Prince acknowledged that
there was nothing preventing anyone approaching or exiting
the apartment from observing the railing and ascertaining
whether the large gaps between the railing balusters
presented a danger.
filed a motion for summary judgment, arguing that the gaps
between the railing balusters constituted a static, open and
obvious condition of which Prince admitted having knowledge.
The trial court denied the motion, concluding that "an
issue of fact remains as to whether the railing constituted
an open and obvious condition and whose knowledge of the
alleged hazard was superior." This interlocutory appeal
three related enumerations of error, Simmons contends that
the trial court erred in denying his motion for summary
judgment, arguing that gaps between the railing balusters
constituted a static, open and obvious condition of which
Prince had equal knowledge. We agree.
is a two-part test for determining whether an invitee can
recover damages in a slip and fall action. First, the
plaintiff must prove "that the defendant had actual or
constructive knowledge of the hazard[.]" Robinson v.
Kroger Co., 268 Ga. 735, 748 (2) (B) (493 S.E.2d 403)
(1997). Next, the plaintiff must demonstrate that he
"lacked knowledge of the hazard despite the exercise of
ordinary care due to actions or conditions within the control
of the owner/occupier." Id. "In premises
liability cases, proof of a fall, without more, does not give
rise to liability on the part of the proprietor."
(Citation and punctuation omitted.) Hannah v. Hampton
Auto Parts, 234 Ga.App. 392, 394 (506 S.E.2d 910)
(1998). "The true basis of a proprietor's liability
for personal injury to an invitee is the proprietor's
superior knowledge of a condition that may expose the
invitees to an unreasonable risk of harm. Recovery is allowed
only when the proprietor had knowledge [of the dangerous
condition] and the invitee did not." (Citations and
punctuation omitted.) Id.
"[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 knowledge of it and
cannot recover for a subsequent injury resulting
therefrom." (Citation and punctuation omitted.)
Hallberg v. Flat Creek Animal Clinic, P.C., 225
Ga.App. 212, 215 (2) (483 S.E.2d 671) (1997). However, this
Court has recognized that "the rule imputing knowledge
of a danger to a person who has successfully negotiated it
before applies only to cases involving a static condition
that is 'readily discernible' to a person exercising
reasonable care for his own safety." Cocklin v. JC
Penney Corp., 296 Ga.App. 179, 181 (674 S.E.2d 48)
held that the inadequacy or lack of a stairway railing may
constitute a static condition. See Lariscy v.
Eschette, 306 Ga.App. 205, 206-207 (702 S.E.2d 49)
(2010) (where plaintiff fell down stairs that had been built
without handrails, summary judgment to defendant was
warranted because plaintiff had traversed the stairs several
times before her fall and was aware of the hazard); Argo
v. Chitwood, 282 Ga.App. 156, 157-158 (637 S.E.2d 865)
(2006) (where plaintiff fell down stairs and sustained
injuries when her foot lodged in between stair rail balusters
that were alleged to have been improperly spaced, summary
judgment to defendant was warranted because plaintiff had
traversed the stairs several times before her fall and had
equal knowledge of the alleged defects).
the uncontroverted evidence is that the large gaps between
the railing balusters where Prince fell were clearly visible,
open and obvious. Prince had traversed that area of the
landing a few times on previous occasions, and he admitted to
having knowledge of the gaps between the railing balusters.
Accordingly, we conclude that the large gaps between the
railing balusters was a static defect of which Prince
admittedly had prior knowledge. Under these circumstances,
Simmons cannot be said to have superior knowledge of the
hazard. Accordingly, we conclude that Simmons was entitled to
summary judgment on Prince's negligence
Simmons also contends that he is entitled to summary judgment
on Prince's claim of negligence per se. We agree.
Although Prince presented evidence to show that the gaps
between the railing balusters violated certain building and
safety codes, he failed to demonstrate that compliance with
the asserted codes was mandatory. To establish negligence per
se based upon the violation of building and safety codes, a
plaintiff has to present, inter alia, some evidence that the
provisions of the asserted codes are mandatory and have the
force of law. Norman v. Jones Lang LaSalle Americas,
Inc., 277 Ga.App. 621, 628-629 (2) (b) (627 S.E.2d 382)
(2006). As Prince failed to tender the codes into evidence or
otherwise offer any evidence to show that compliance with
such codes was mandatory, the allegation of negligence per se