BARNES, P. J., MCMILLIAN and MERCIER, JJ.
these consolidated appeals, Cherokee Main Street, LLC
("Cherokee") and ¶X Companies, Inc.
("¶ Maxx") appeal from the trial court's
denial of their motions for summary judgment in a premises
liability action filed by Pamela J. Ragan seeking to recover
for injuries suffered when she was struck by a car in a
shopping center parking lot. We find that Cherokee and ¶
Maxx were entitled to summary judgment because Ragan has
failed to show that they had superior knowledge of the hazard
she alleges in this case. Accordingly, we reverse.
appeal, this Court reviews the trial court's summary
judgment ruling under a de novo standard, construing the
evidence in Ragan's favor as the non-movant. 905
Bernina Avenue Coop. v. Smith/Burns LLC, 342 Ga.App.
358, 361 (1) (802 S.E.2d 373) (2017). So viewed, the evidence
shows that TJ Maxx leased retail space in a shopping center
from Cherokee, which owned the center. Ragan visited the
shopping center on December 19, 2013, and after completing
her shopping at another department store, she walked along
the sidewalk fronting the center's retail businesses to
the TJ Maxx store, near where her car was parked. Ragan
walked down a ramp leading from the sidewalk to the parking
lot, where she stopped and looked both ways. It is undisputed
that there was no crosswalk leading from the ramp across the
parking lot. When Ragan stopped, she observed a car coming
from the left, approximately two to three car lengths away.
She then stepped into the vehicle's travel lane, because
her "mindset was that it would stop or had already
stopped since it was a pedestrian crossing." Ragan
testified that she assumed the car would stop because she
would have stopped under the same circumstances. Although
Ragan knew the car was there and kept it in the corner of her
eye, she never made eye contact with the driver and "it
wasn't like [she] was really aware of it" until the
"very last minute" when it hit her. The right front
portion of the vehicle struck Ragan, knocking her to the
to this incident, Ragan had visited the shopping center
dozens of times and previously had crossed the area of the
parking lot where the incident occurred. She had also driven
in the area in front of TJ Maxx and had never noticed stop
signs in that area for cars.
premises liability suit, Ragan asserted that Cherokee and TJ
Maxx violated their duty of care to her by failing to provide
appropriate warnings requiring traffic in the area to stop
and yield the right of way to pedestrians and by failing to
designate a crosswalk on the pavement between the ramp and
the parking area. Both defendants filed motions for summary
judgment asserting that (1) they did not owe Ragan a duty to
protect her against the danger that resulted in her injuries
because they lacked superior knowledge of that danger and (2)
Ragan's own failure to exercise reasonable care for her
own safety was the proximate cause of her damages. The trial
court denied these motions, finding that issues of material
fact existed as to whether TJ Maxx was negligent in failing
to request that certain safeguards be placed near its store
and as to whether Cherokee was negligent in failing to
provide such safeguards.
OCGA § 51-3-1, a person who owns or occupies land and
"by express or implied invitation, induces or leads
others to come upon his premises for any lawful purpose, ...
is liable in damages to such persons for injuries caused by
his failure to exercise ordinary care in keeping the premises
and approaches safe." In order to recover on a premises
liability claim, a plaintiff must show "(1) that the
defendant had actual or constructive knowledge of the hazard;
and (2) that the plaintiff lacked knowledge of the hazard
despite the exercise of ordinary care due to actions or
conditions within the control of the owner/occupier."
Robinson v. Kroger Co., 268 Ga. 735, 748-49 (2) (b)
(493 S.E.2d 403) (1997). Accordingly, "the fundamental
basis for an owner or occupier's liability [is] that
party's superior knowledge of the hazard encountered by
the plaintiff." Id. at 736 (1). In other words,
a plaintiff is not entitled to recovery if "the
undisputed evidence demonstrates that the plaintiff's
knowledge of the hazard was equal to or greater than that of
the defendant." Norman v. Jones Lang LaSalle
Americas, Inc., 277 Ga.App. 621, 624 (627 S.E.2d 382)
(2006). See also Forest Cove Apartments, LLC v.
Wilson, 333 Ga.App. 731, 734 (776 S.E.2d 664) (2015) (no
recovery where evidence demonstrated that plaintiff had equal
knowledge of the dangerous condition).
it is undisputed that the area where Ragan crossed the
parking lot had no crosswalk, no stop signs, and no other
pedestrian-related traffic signs. Ragan testified that
nothing impeded her view of the area at the time of the
accident, and she was not distracted. Further, the evidence
showed that Ragan had been to the shopping center numerous
times, and on several occasions, she had shopped at TJ Maxx
and crossed the parking lot where the incident occurred.
Therefore, to the extent that the lack of a crosswalk or
traffic warnings constituted a defect on the property, as
Ragan contends, that defect was open and obvious and Ragan
had equal knowlege of any such defect. See Johnson v.
Green Growth 1, LLC, 305 Ga.App. 134, 139 (699 S.E.2d
109) (2010) (where lack of barrier between children's
play area in apartment parking lot and route of vehicular
traffic open and obvious, landlord lacked superior knowledge
of defect) (physical precedent only); Barnes v. Morganton
Baptist Assn., 306 Ga.App. 755, 758 (1) (703 S.E.2d 359)
(2010) (retaining wall at shopping center and drop-off
therefrom constituted an open and obvious defect; property
owner lacked superior knowledge of defect); Commerce
Properties v. Linthicum, 209 Ga.App. 853, 854 (2) (434
S.E.2d 769) (1993) (where lack of pedestrian warning signs
and other warning and safety devices in apartment parking lot
open and obvious, landlord lacked superior knowledge of
defect); Chisholm v. Fulton Supply Co., 184 Ga.App.
378, 379 (1) (361 S.E.2d 540) (1987) ("[A] proprietor is
not an insurer of an invitee's safety, and is not liable
for injuries resulting from a condition which is readily
observable and which should have been seen and appreciated by
the invitee before he exposed himself to it[.]").
we note that the potential danger alleged in this case was
that the absence of a crosswalk or other traffic warnings
exposed pedestrians to the risk of negligent actions by
third-party drivers. This Court addressed the application of
the superior/equal knowledge rule in a case involving a
similar claim in O'Steen v. Rheem Mfg. Co., 194
Ga.App. 240, 240 (390 S.E.2d 248) (1990). There, O'Steen,
the plaintiff, worked for the defendant company and was
driving through the company's parking lot when a car
entered the area of the parking lot in which she was
traveling, causing the two cars to collide. The alleged
defect in that case was the presence of large trucks, which
the defendant allowed to be parked where they blocked the
view of the intersection where the accident occurred.
Court explained in O'Steen that the
superior/equal knowledge rule applied in cases "where
the proprietor allows a dangerous condition to exist,
including cases where the alleged dangerous condition is one
created by the activities of third persons[.]"
O'Steen, 194 Ga.App. at 242 (1). The rule
so long as the condition is one which the invitee can expect
equally with the host, or come to know of, and therefore must
anticipate the danger. In other words, the condition even if
created by third parties must be such that the invitee can
indeed have equal knowledge and either assumes the risk or
can avoid the danger with ordinary care.
(Citation and punctuation omitted; emphasis in original.)
Id. Therefore, "[t]he 'equal knowledge
rule'... is the practical application of a rule that a
knowledgeable plaintiff cannot recover damages if by ordinary
care he could have avoided the consequences of
defendant's negligence. OCGA § 51-11-7."
(Punctuation omitted.) Id. Because O'Steen had
knowledge of the dangerous intersection and failed to
approach it with the requisite care, this Court held that the
trial court properly found that her claims were barred.
Id. at 243.
not only did Ragan have equal knowledge that no crosswalk or
warning sign existed in the area where she was attempting to
cross the parking lot, she actually saw the car that
ultimately hit her heading in her direction before
she stepped into the parking lot. We find, therefore, that
Ragan had superior knowledge of the immediate risk posed by
that car, a risk that could have been easily avoided by
waiting for the car to either stop or to pass before
proceeding. Instead, she chose to step into the path of that
car based on an assumption that it would stop. Under these
circumstances, Ragan's claims are barred as a matter of
Compare Travis v. Quiktrip Corp., 339 Ga.App. 551,
556 (1) (794 S.E.2d 195) (2016) (affirming denial of summary