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Naval Store Suppliers, Inc. v. Croft

Court of Appeals of Georgia, Fourth Division

May 14, 2018

CROFT et al.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          Mercier, Judge.

         Carolyn Croft and her husband Terrell Croft sued Naval Store Suppliers, Inc., d/b/a Southern Builders Supply and TLC Millwork, Inc., (hereinafter "Defendants"), alleging that due to the Defendants' negligence Carolyn Croft ("Croft") slipped and fell on ice at TLC Millwork. The Defendants filed a motion for summary judgment, arguing that Croft had equal knowledge of the hazard and that she assumed the risk that she would fall when she walked on the ice. Without making any factual findings or legal conclusions, the trial court denied the Defendants' motion. The Defendants appeal. Because uncontroverted evidence shows that Croft and the Defendants had equal knowledge of the hazard created by ice forming near an entrance door and because Croft voluntarily exposed herself to that hazard when she exited the building through the same door, the trial court erred in denying the Defendants' motion for summary judgment. We therefore reverse.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Johnson Street Properties, LLC v. Clure, 302 Ga. 51, 52 (1) (805 S.E.2d 60) (2017) (citations and punctuation omitted).

         So viewed, the evidence shows that on January 7, 2014, Croft arrived at TLC Millwork to pick up an order for her employer. When she arrived, it was approximately 25 degrees Fahrenheit outside, and Croft observed that a water spigot was open near the entrance of the building and water was pooling on the ground at the base of the stairs leading into the building. The pooling water had frozen and formed a mixture of "water/ice" that Croft had to cross to enter the building. Croft testified that she knew that the hazard was dangerous and once inside she reported it to a TLC Millwork employee. The employee responded by telling her to take a different route when she was ready to leave and exit through a "rolling door, " but also asked that Croft not tell anyone about her use of the rolling door because the employee could get fired for allowing Croft to use that door.

         A TLC Millwork employee, V. M. testified that the water spigot had been left open in order to prevent the water faucets from freezing. V. M. testified that Croft told her "[t]here's ice on the pavement out here. Someone - you know, someone's going to fall." V. M. told Croft "[w]ell, don't go back out that way. . . . When you get ready to leave . . . . we've got a [rolling] door down here, and I'll show you how to get back out." After V. M. spoke with Croft, V. M. looked outside and observed ice on the ground.

         Approximately 20-30 minutes later, Croft walked over to the rolling door and tried to exit but the door was locked. Croft looked for an employee in the area to unlock the rolling door, but did not see any employees. Croft then went to tell the employee she had previously spoken to that the rolling door was locked, but there were other people in the employee's office. Croft testified that she did not want to ask the employee to unlock the rolling door when other people were present because she did not want the employee to be fired. Croft then left through the door she had used to enter the building, walked down the stairs, and fell.

         1. For Croft to recover on her premises liability claim, she must show the following:

(1) that the defendant[s] 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. Thus, it is well settled in Georgia that the fundamental basis for an owner or occupier's liability is that party's superior knowledge of the hazard encountered by the plaintiff. Stated another way, 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.

Travi s v. QuikTri p Corp., 339 Ga.App. 551, 553 (1) (794 S.E.2d 195) (2016) (citations and punctuation omitted).

         The undisputed evidence in this case demonstrates that Croft and the Defendants had equal knowledge that ice on the ground outside the store entrance presented a hazard to anyone who entered or exited through that door. In fact, Croft warned a TLC Millwork employee of the hazard. "If an invitee knows of the condition or hazard, she has as much knowledge as the proprietor does and then by voluntarily acting in view of her knowledge, she assumes the risks and dangers incident to the known condition." Smith v. NT Nails, LLC, 331 Ga.App. 98, 99 (770 S.E.2d 646) (2015) (citation and punctuation omitted).

         The Crofts argue that summary judgment is inappropriate because even though Croft knew of the hazard, she could not have assumed the risk because she did not have a "viable alternative route" and therefore was coerced to walk on the ice.

Assumption of the risk bars a plaintiff's recovery when a defendant establishes that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In order to successfully assert this affirmative defense, the defendant must establish that the plaintiff (1) had actual knowledge of the danger; (2) ...

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