NAVAL STORE SUPPLIERS, INC., d/b/a SOUTHERN BUILDERS SUPPLY et al.
CROFT et al.
DILLARD, C. J., DOYLE, P. J., and MERCIER, J.
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
Johnson Street Properties, LLC v. Clure, 302 Ga. 51,
52 (1) (805 S.E.2d 60) (2017) (citations and punctuation
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.
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.
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.
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).
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).
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
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;