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Cottingham v. Sapp

Court of Appeals of Georgia, Fifth Division

February 22, 2018

COTTINGHAM
v.
SAPP.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         June 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.

         1. 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.

         On the 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.

         Cottingham 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.

         The day 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.

         Sapp 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."

         In a 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.

         Our 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 ...


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