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Hall v. Noble-Interstate Management Group, LLC

Court of Appeals of Georgia, Second Division

March 5, 2019

HALL et al.

          MILLER, P. J., BROWN and GOSS, JJ.

          GOSS, JUDGE.

         This appeal arises from the trial court's grant of summary judgment to Noble-Interstate Management Group, LLC, and other defendants (collectively, the "Defendants") in this premises liability action. Richard and Kirsten Hall sued following an incident in which Richard Hall fell and injured himself in the bathtub of a hotel owned, managed, or operated by the various Defendants. On appeal, the Halls challenge the trial court's conclusion that they failed to show that the premises were defective or hazardous. Because material questions of fact are present, we reverse.

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.

(Footnotes omitted). Courter v. Pilot Travel Centers, LLC, 317 Ga.App. 229, 229 (730 S.E.2d 493) (2012).

         The record shows that in April 2013, Richard Hall was staying at the hotel in Atlanta with a friend while in town for a sporting event. The friend showered, and did not mention anything about the tub being slippery. Then Hall got into the hotel shower for the first time. He deposed that he had almost finished washing himself, "soaped [his] second foot and put it down . . . [and] it was like standing on ice almost." He deposed that "there probably was still some soap" on his foot. He lost his balance and fell, injuring himself and hitting his knee, hip, arm, and head. At that time, he did not notice whether the tub had any non-slip surface. He did not immediately experience any major pain or notice a major bump on his head. He briefly lost consciousness and immediately experienced "the cartoonish seeing stars thing[, ]" and it took him 30 seconds to a minute to orient himself. After Hall returned home, however, he had a headache and experienced blurred vision and nausea, and went to urgent care. The Halls first reported the incident to hotel staff two days after Richard Hall fell. Kirsten Hall spoke to the hotel's general manager. Kirsten Hall deposed that the manager told her that there were no traction strips in the shower, that the hotel was being renovated, and that the room should not have been rented. The general manager, Bert Haifley, deposed that he did not remember discussing traction strips or tub surfaces with Kirsten Hall. He deposed that the bathtubs came from the manufacturer with a built-in nonslip surface, and identified the dark lines in the photographs he was shown as that nonslip surface.

         After his fall, Richard Hall took photographs of the bottom of the tub. As he contends in his appellate brief, from his "untrained eye, the tub displayed slight darkened streaks where non-slip strips used to be." He deposed that "[t]here was nothing there [in the bottom of the tub] . . . just pure whatever it was made of, ceramic, porcelain. I don't know. I'm not a tub expert[, ]" and also that when looking at the photographs he had taken, he saw "discolorations that looked like where possibly there used to be [anti-skid] strips." The photograph Hall took shows six stripes, which are darker than the surrounding porcelain, running the length of the tub.

         The evidence shows that the hotel tubs were under renovation when Hall fell. The tub in his room was resurfaced after he fell. Durand Johnson, an employee with Nobel-Interstate Management, who served as the hotel's director of engineering, deposed that Porcelain Innovations had been hired to resurface the tubs because the hotel was having problems in that the tubs looked dirty. Specifically, Johnson testified that because the "nonslip that's built in the tub was starting to come through. You could see the little round circles. They looked like stain, but it was not. It was an anti-slip. The inside of the tub started to look gray. The porcelain was wearing off the tubs." He also deposed that the hotel had been evaluated for repairs by at least two companies, which proposed either repainting the tubs or resurfacing the bottom, and that both options included the installation of ASTM certified slip-resistant bottoms. The hotel chose the option of resurfacing the bottoms.

         In addition to Haifley, Johnson and two people associated with the tub renovation company all deposed that the bathtubs at the hotel had a non-slip surface that does not wear out, and that only the porcelain around that non-slip surface was wearing out. These witnesses stated that the tub resurfacing was for cosmetic, rather than safety reasons.

         1. First, the Halls argue that the trial court erred in finding that they failed to meet their burden of showing that the bathtub was a hazard presenting an unreasonable risk of harm.

         They contend that because they identified standards and ordinances that the hotel violated by not having a non-slip surface in the tub, they showed that Richard Hall encountered a hazard presenting an unreasonable risk of harm.

An owner or occupier of land has a statutory duty to keep its approaches and premises in a reasonably safe condition for invitees. But an owner or occupier of land is not an insurer of the safety of its invitees. Rather, in premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor. The true basis of a proprietor's liability for personal injury to an invitee is the proprietor's superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. Recovery is allowed only when the proprietor had knowledge and the invitee did not.

(Citation and footnote omitted.) Leavins v. Nayan Corp., 344 Ga.App. 417, 420 (2) (a) (810 S.E.2d 324) (2018). See also OCGA § 51-3-1.

         First, the Halls have presented a fact question as to whether the tub had any nonslip surface. It is undisputed that the tub at issue had no mat in it, as Defendants note in their brief. What is in dispute is whether the tub had any other traction and whether the condition of the tub presented an unreasonable hazard. Richard Hall, while acknowledging that he was not a tub expert, deposed that the tub had no traction, only dark striping where possibly traction strips used to be. By contrast, witnesses either employed by the hotel or by the renovation company deposed, variously, that the dark stripes were traction strips built into the tub which do not wear out and cannot be removed, and that only the porcelain surrounding those traction strips had worn out, making the tub look dirty. The trial court found that "the record shows undisputed evidence that Defendants' bathtub's built-in anti-slip surface is not subject to deterioration over time." However, the Halls have presented evidence pointing to a fact question about whether the tub contained any anti-slip surfacing. Pretermitting whether Richard Hall's testimony as to the dark striping was speculative or conclusory, see Shadburn v. Whitlow, 243 Ga.App. 555, 556 (533 S.E.2d 765) (2000) (plaintiff failed to show causation and presented only speculation where she and two witnesses testified that while they believed loose carpeting caused plaintiff's fall, they were not sure what caused fall and plaintiff may have fallen because she was inebriated), the Halls point to other, conflicting testimony about the tub's surface. Specifically, Kirsten Hall deposed that the hotel's general manager, Haifley, told her that the hotel's bathrooms were being renovated, and, as she recalled it, that "there were no traction strips in that shower; that the room should not have been occupied this past weekend[.]" (Emphasis ...

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