MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
Cottingham appeals the grant of summary judgment to defendant
Kirby Sapp in this premises liability case. She argues that
whether her knowledge of the hazard that caused her fall is
equal or superior to Sapp's knowledge is a jury question.
We hold that the trial court did not err by finding the
evidence is undisputed on the issue. So we affirm.
Facts and background.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. 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.
Walker v. Sears Roebuck & Co., 278 Ga.App. 677
(629 S.E.2d 561) (2006) (citations omitted). So viewed, the
evidence shows that Cottingham was the office manager of an
H&R Block office. The office was located in a building
owned by Sapp.
morning of the incident, Cottingham was the first employee to
arrive at the office. She entered the front door and walked
to the back office. As she walked toward the light switch in
the back office, she slipped on water, fell, and injured her
neck and hand.
testified that every time it rained, water would enter the
back office because rain would fall from a broken awning or
gutter onto the back door. Cottingham knew that some time
before her accident, another employee had slipped and fallen
because of the water.
before Cottingham's fall, it had rained and the back
office had flooded. Cottingham and her fellow employees
mopped up the water. The floor was dry when Cottingham left
that night around 10 p.m.
testified that it was raining the day of Cottingham's
fall. In her interrogatory responses, Cottingham similarly
said that "[o]n the day of the subject incident, the
weather conditions were wet and rainy and it had been raining
the previous day also." In her deposition, however,
Cottingham testified that on the morning of the incident,
"[i]t wasn't raining; it was rainy. It was kind of
like it could rain."
brief order, the trial court granted Sapp's motion for
summary judgment, finding that the undisputed evidence showed
that "the plaintiff in this case had equal or superior
knowledge of the defect which led to the injuries
alleged." Cottingham then filed this appeal.
Supreme Court of Georgia has held that
to recover for injuries sustained in a slip-and-fall action,
an invitee must prove (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. However, the plaintiff's
evidentiary proof concerning the second prong is not
shouldered until the defendant establishes negligence on the
part of the plaintiff - i.e., that the plaintiff
intentionally and unreasonably exposed self to a hazard of
which the plaintiff knew or, in the exercise of ordinary
care, should have known.
Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b)
(493 S.E.2d 403) (1997). "The true ground of liability
is the owner or occupier's superior knowledge of the
hazard and the danger therefrom." Edwards v. Ingles
Mkt., 234 Ga.App. 66, 67 (506 ...