HALL et al.
NOBLE-INTERSTATE MANAGEMENT GROUP, LLC et al.
MILLER, P. J., BROWN and GOSS, JJ.
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).
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
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.
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.
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.
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.
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.
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 ...