SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J, and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 24, 2017
In the Court of Appeals of Georgia
A17A0438. DUFF v. BOARD OF REGENTS OF THE DO-017
UNIVERSITY SYSTEM OF GEORGIA.
DOYLE, Chief Judge.
In this slip-and-fall case, plaintiff Mollie Duff appeals from the grant of
summary judgment to defendant Board of Regents of the University System of
Georgia. Duff contends that the trial court erred by concluding that rainwater on the
floor where she slipped was not, as a matter of law, a hazardous condition. For the
reasons that follow, 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.1
So viewed, the record shows that Duff was a student at Georgia Perimeter
College. One morning, her father dropped her off at school at approximately 7:45
a.m.; it had not been raining, and the weather “was clear.” After her first class ended,
Duff went to her second class, U. S. history, in the same building from 10:00 to 11:15
a.m. Her classrooms did not have windows, so she was unable to see that it had begun
raining outside at some point after she arrived. When her history class ended, Duff
began her walk to her third class in another building. She first exited the history
classroom, walked down the hall, covering the length of her classroom and making
it half-way past the next classroom (a computer lab), when she slipped and fell on
rainwater that had been brought in by other students entering the building to go to
their classes. Duff did not see any water until she fell and noticed water on the floor.
Duff suffered injuries from her fall and sued the Board on a premises liability
theory. The Board answered and, following discovery, moved for summary judgment.
The trial court granted the motion on the ground that Duff failed to meet her threshold
1
(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1)
(486 SE2d 684) (1997).
2
burden to show that the rainwater on the floor amounted to a hazardous condition, i.e.
an unusual or unreasonable amount. Duff challenges this ruling on appeal.
In Robinson v. Kroger,2 the Supreme Court of Georgia clarified and
summarized Georgia premises liability law as follows:
One who owns or occupies land and by express or implied invitation,
induces or leads others to come upon his premise for any lawful
purpose, . . . is liable in damages to such persons for injuries caused by
his failure to exercise ordinary care in keeping the premises and
approaches safe. While not an insurer of the invitee’s safety, the
owner/occupier is required to exercise ordinary care to protect the
invitee from unreasonable risks of harm of which the owner/occupier
has superior knowledge. The owner/occupier owes persons invited to
enter the premises a duty of ordinary care to have the premises in a
reasonably safe condition and not to expose the invitees to unreasonable
risk or to lead them into a dangerous trap. The owner/occupier is not
required to warrant the safety of all persons from all things, but to
exercise the diligence toward making the premises safe that a good
business person is accustomed to use in such matters. This includes
inspecting the premises to discover possible dangerous conditions of
which the owner/occupier does not have actual knowledge, and taking
reasonable precautions to protect invitees from dangers foreseeable
from the arrangement or use of the premises.3
2
268 Ga. 735 (493 SE2d 403) (1997).
3
(Citations and punctuation omitted.) Id. at 740 (1).
3
The Court also expressly
remind[ed] members of the judiciary that the “routine” issues of
premises liability, i.e., the negligence of the defendant and the plaintiff,
and the plaintiff’s lack of ordinary care for personal safety are generally
not susceptible of summary adjudication, and that summary judgment is
granted only when the evidence is plain, palpable, and undisputed.4
With this legal background in mind, we turn to the facts of this case. The trial
court relied on precedent stating that “[t]he risk of harm imposed by some
accumulation of water on the floor . . . during rainy days is not unusual or
unreasonable in itself, but is one to which all who go out on a rainy day may be
exposed and which all may expect or anticipate.”5 But this concept has been expressly
limited by the Supreme Court of Georgia: “[S]ince that concept is based on the
common knowledge that the ground outside gets wet on rainy days, it cannot properly
4
Id. at 748 (2) (b).
5
(Punctuation omitted.) Walker v. Sears Roebuck & Co., 278 Ga. App. 677,
680 (2) (629 SE2d 561) (2006), quoting Cook v. Arrington, 183 Ga. App. 384, 385
(358 SE2d 869) (1987).
4
be applied to a portion of an interior space where an invitee has no reason to expect
water to accumulate on the floor.”6
Here, it is undisputed that Duff lacked any actual knowledge that it was raining
and that she fell in an interior portion of the building while walking between
classrooms. A building diagram shows that the closest entrance was more than three
classrooms away from where she slipped and fell. These circumstances bring Duff’s
case outside the line of cases where our courts have held that invitees, as a matter of
law, must be charged with the knowledge that rainwater will accumulate on the floor
where they fell.7
6
(Emphasis supplied.) Dickerson v. Guest Svcs. Co., 282 Ga. 771, 772 (653
SE2d 699) (2007).
7
See, e.g., Walker, 278 Ga. App. at 680 (2) (holding that the risk of harm from
some water on the floor is not unusual or unreasonable on a rainy day). Compare
Dickerson, 282 Ga. at 772 (limiting Walker and stating that the facts do not support
a determination “as a matter of law that a reasonable person would have anticipated
that the stairs might get wet on a rainy day”); Parker v. All American Quality Foods,
Inc., 318 Ga. App. 689, 691 (734 SE2d 510) (2012) (physical precedent only)
(summary judgment not appropriate because plaintiff slipped in rainwater after
walking past six checkout stations). The Board’s reliance on Season All Flower Shop,
Inc. v. Rorie, 323 Ga. App. 529, 536 (1) (746 SE2d 634) (2013) is misplaced in the
present circumstance. In that case, the Court addressed a scenario in which an injured
plaintiff fell “several feet inside the lobby” and concluded that “‘in rainy day
slip-and-fall cases plaintiffs are charged with equal knowledge that water is apt to be
found in any area frequented by people coming in from the rain outside,’ and not just
at the ‘threshold’ of an entrance door.” Id. at 536 (1) (punctuation omitted). Contrary
5
Further, with respect to the amount of water that had accumulated, the record,
when construed in favor of Duff as required on summary judgment,8 contains
testimony that there was “standing water,” that Duff “felt the water after [she] hit the
floor,” and that the water made her skirt, leg, and hands wet when she tried to get up.
There is evidence that approximately 882 students had classes that were about to
begin in Duff’s building, and a professor who came to aid Duff testified that there
was “a lot” of water on the hallway floor from students waiting to enter their classes,
but the amount of water in the spot of the fall after Duff fell was comparable to taking
a wet paper towel and wiping it across the floor. In granting summary judgment, the
trial court relied on this testimony to conclude that there was no hazard presented by
the water, but this ignores the conflicting testimony from Duff that there was
“standing water.” Any conflict in the evidence is properly resolved by a jury, not by
to the plaintiff in Rorie, Duff did not fall near the threshold, and the interior hallway
was sufficiently far enough away such that the question of her knowledge is not a
plain and palpable one to be resolved at summary judgment.
8
See Smith v. Tenet HealthSystem Spalding, 327 Ga. App. 878, 879 (761 SE2d
409) (2014) (“[A]t the summary judgment stage, courts are required to construe the
evidence most favorably towards the nonmoving party, who is given the benefit of
all reasonable doubts and possible inferences.”) (punctuation omitted).
6
a court,9 and viewed with the evidence that Duff’s denim skirt, leg, and hands had
become wet from contacting the floor where she fell, this evidence does not demand
a finding that no hazard existed.
Based on this record, the absence of an unreasonable hazard is not “plain,
palpable, and undisputed.”10 “Where reasonable minds can differ as to the conclusion
to be reached with regard to questions of whether an owner/occupier breached the
duty of care to invitees and whether an invitee exercised reasonable care for personal
safety, summary adjudication is not appropriate.”11 Based on the location of Duff’s
fall and the evidence of “standing water” where she fell, the trial court erred by
granting summary judgment to the Board on the ground that such an amount of water
in an interior space of a building does not, as a matter of law, amount to a hazardous
condition for premises liability purposes.12
Judgment reversed. Miller, P. J., and Reese, J., concur.
9
See id.
10
Robinson, 268 Ga. at 748 (2) (b).
11
Id. at 740 (1).
12
See Dickerson, 282 Ga. at 772.
7