SECOND DIVISION
MILLER, P. J.,
BROWN and GOSS, JJ.
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
March 5, 2019
In the Court of Appeals of Georgia
A18A1719. HALL et al. v. NOBLE-INTERSTATE GS-064
MANAGEMENT GROUP, LLC et al.
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 SE2d 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
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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
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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.
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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 SE2d 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,
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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
SE2d 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 supplied.) Haifley, by contrast,
deposed that while he remembered talking with Hall’s wife, he did not remember
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discussing traction strips or tub surfaces. Viewing this in the light most favorable to
the Halls as the non-movants, Courter, 317 Ga. App. at 229, this conflicting
testimony presents a fact question as to whether the tub contained built-in,
functioning traction strips, as the Defendants contend, or contained no traction at all,
as the Halls contend.
As stated above, the basis of the Defendants’ liability to the Halls, if any,
would be the Defendants’ “superior knowledge of a condition that may expose the
invitees to an unreasonable risk of harm.” (Citation omitted; emphasis in original).
Leavins, 344 Ga. App. at 240 (1) (a). While Defendants presented evidence that they
were unaware of prior bathtub slip-and-falls at the hotel and that the tub resurfacing
was for cosmetic, rather than safety reasons, violations of codes and regulations may
be negligence per se, “and evidence of nonconformity with code standards may be
proof of the landowner’s superior knowledge of a defect under OCGA § 51-3-1.”
(Punctuation and footnote omitted.) Hicks v. Walker, 262 Ga. App. 216, 218 (585
SE2d 83) (2003). Unlike the plaintiffs in other bathtub slip-and-fall cases cited by
Defendants, see Leavins, 344 Ga. App. at 419-420 (1) and Bryant v. DIVYA, Inc., 278
Ga. App. 101, 102-103 (628 SE2d 163) (2006), in which this Court upheld grants of
summary judgment to the hotel-defendants, the Halls have pointed to regulations
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related to hotel/motel bathroom safety that they allege were violated by the
Defendants. The Halls argue that the hotel violated industry standards requiring
“[a]nti-slip tubs, slip strips, appliques, or slip-proof mats” on the floor of the bathtub,
and point to regulations cited by the Defendants below, the Fulton County Code of
Ordinances and Resolutions, Rules of Department of Human Resources, Tourist
Accommodations, Chapter 290-5-18.06 (11).1 They additionally point to the ASTM
standards for the “minimum ‘static coefficient of friction’ of .04” for bathtubs. See
generally Womack v. Oasis Goodtime Emporium I, 307 Ga. App. 323, 328-330 (2)
(705 SE2d 199) (2010) (outlining standards for showing negligence per se). The Halls
have at least raised a jury question as to whether the Defendants violated hotel/motel
safety codes. Compare Leavins, 344 Ga. App. at 421 (2) (a) (hotel guest offered no
evidence that shower violated applicable safety codes).
As noted above, Richard Hall deposed that while he was showering, after he
“soaped [his] second foot and put it down . . . it was like standing on ice almost.” He
deposed that “there was probably still some soap” on his foot, and “I just lost my
1
On appeal and in their own responses below, the Halls cited to Ga. Comp. R.
& Regs. r. 5-6-2-.08 (10). However, Richard Hall slipped and fell on April 6, 2013,
and these rules did not go into effect until January 1, 2014. See Ga. Comp R. & Regs.
r. 511-6-2.23 (“These regulations shall become effective on January 1, 2014”) and
Leavins, 344 Ga. App. at 419-420 (1) (recognizing effective date).
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balance and there was nothing to grab onto and so I fell.” From the above evidence,
a jury could find, for example, that Richard Hall fell because of the soap on his foot.
Or, a jury could find that Richard Hall fell because, as he deposed, “there was nothing
to grab onto.” Alternatively, a jury could find that Richard Hall fell because there was
an unreasonable risk of harm in that Defendants’ tub did not have proper or
regulation-compliant traction. Because the evidence here is “not plain, palpable, and
undisputed,” material questions of fact exist which are not suitable for summary
adjudication. (Citation and punctuation omitted.) Pylant v. Samuels, 262 Ga. App.
358, 361 (2) (585 SE2d 696) (2003).
2. Because of our determination in Division 1, we need not address the Halls’
remaining contentions of error.
Judgment reversed. Miller, P. J., and Brown, J., concur.
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