dissenting.
I respectfully dissent from the affirmance of summary judgment in this case. Plaintiff Elizabeth Ann Aggeles, age 75 years at the time of her injury, brought this tort action against defendants Theater of the Stars, Inc. and Atlanta Landmarks, Inc., d/b/a The Fox Theatre, seeking to recover for personal injuries she sustained when she “fell down a stairwell located in The Fox Theatre [allegedly] as a result of the hazardous and dangerous condition of said stairwell.” Specifically, plaintiff fell while descending the Grand Staircase in the main lobby. She contends the premises were dangerous because the outside handrails end with the wall five steps from the bottom step, and this condition was masked by the dim lighting employed in the theater.
Defendants denied the material allegations and moved for summary judgment, contending the alleged hazard was patent, static, and open and obvious. The evidence, viewed in the light most favorable to plaintiff, reveals that the Grand Staircase is divided into *230three nearly equal sections approximately 70 inches wide by two center handrails. Consequently, each section has two handrails, one on either side. Plaintiff is “assuming . . . that the rail is what caused [her] to fall[.]” She affirmed she “went up a stairway that was divided by one center rail, and . . . traveled up the right of the same stairway and came down on the left side of the same stairway divided by a center rail. . . .” Plaintiff used the right handrail going up. She “always use[s] the handrail. That’s an old habit.” She had no problems at all traveling up the steps and did not have any problems seeing. Plaintiff wears glasses but “just need[s] them for reading.”
The lighting was not any different on the stairway when plaintiff was going down than it had been when she was going up, although plaintiff deposed that the “stairway and surrounding area . . . was . . . poorly lighted. As [she] descended the stairway, [she] was able to see but, because of the inadequate lighting, it was with some difficulty.” Plaintiff kept her “hand on the handrail the entire time [she was] coming down the steps[.]” Plaintiff was “looking ahead of [her]self[,] looking in front of [her]self. That’s all. Not right or left or, gee, what’s wrong. Just ahead, anticipating to go into the theater.” Plaintiff “had it [the handrail] in [her right] hand. [She] didn’t see . . . that it [the handrail] ended because [she] assumed that on the other side is from top to bottom. So it would just continue. And [plaintiff] didn’t recognize that the wall — because it was [plaintiff’s] first time in there — that the wall all would stop there.”
Brian Dufries, House Manager of the Fox Theatre, deposed that “for [the] five years [preceding plaintiff’s mishap,] no complaints regarding the condition on the stairs where the Plaintiff fell were made.” But Brian Dufries also admitted to Melissa Ann Aggeles, plaintiff’s daughter, that “the theater was very, very dark. He [also] said other people had fallen. Actually, that evening other people had fallen, but nobody had gotten hurt. . . . [H]e did state very specifically that other people had fallen and that he thought the theater was too dark.”
Plaintiff wore rubber-bottom flat shoes. When directly queried: “What about the handrail coming to an end caused [her] to .fall,” plaintiff replied: “Evidently, I assume I didn’t have a grip on it because I don’t hold it; I glide my hand. But it wasn’t there, and I must have lost balance, I think.” Plaintiff “didn’t have any footing anymore because there was nothing there that held [her].” She “could not comprehend how [she] could have been so stupid as to not see the rail wasn’t continuing. [She] assumed — [she] walked down, and . . . assumed the rail would just continue.”
According to the affidavit of Mary Catherine Martin, Restoration Project Manager, the Fox is a registered historic landmark, subject to the Secretary of the Interior’s Standards for Rehabilitation & Guide*231lines for Rehabilitating Historic Buildings. “Standard #5 ... as promulgated by the U. S. Department of the Interior, National Park Service, provides that ‘(distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize a historic property shall be preserved.’ . . . The features of The Grand Staircase, including the treads, risers and handrails, were preserved in their original form at the time of the plaintiff’s fall ... as required by [federal] Standards.”
Concluding that “[d]efendant[s] had no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care,” the trial court granted defendants’ motion for summary judgment.
1. In two related enumerations, plaintiff contends the trial court erred in granting summary judgment. She contends material issues of fact remain whether the allegedly hazardous condition was open and obvious and whether she exercised ordinary care for her own safety. I agree and would reverse.
“As pointed out in Inglett v. Winn Dixie, Greenville, 168 Ga. App. 192, 193, 194 (308 SE2d 587) [(physical precedent)]: ‘(w)e discern a distinction between emergency conditions existent on an owner’s premises and static conditions which are not inherently dangerous in and of themselves.’ There the court noted where an invitee encounters an unusual or emergency situation which is known to the owner, there may be a substantial question as to the application of the assumption of the risk doctrine. However, the court [continued]: ‘(w)e perceive a different standard where there is a patent and long standing but static defect. We characterize a “static” defect as one which in and of itself is not dangerous.’ ” Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114 (321 SE2d 830). Based on the record before us, a jury would be authorized to conclude that the fact the wall and outside handrail attached to it did not continue down the final five steps to the ground floor (coupled with the darkness of the area and other patrons also falling that night) amounted to a hazardous condition on the premises, and such condition, while static, was not patent due to the very, very dark conditions of the theater. Consequently, defendants have, in my judgment, failed to establish the non-existence of every material fact. Moreover, plaintiff testified she used the rail to guide herself along the dimly lit staircase. “This testimony is some evidence that [plaintiff] exercised reasonable care for [her] own safety [in descending the Grand Staircase]. [Cit.] The evidence thus did not demand a finding that [plaintiff] failed to exercise reasonable care, ([cit.]); OCGA § 9-11-50, and the [trial court] erred [in granting defendants’ motion for summary judgment].” Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485).
2. Since I believe the trial court’s grant of summary judgment *232was incorrect under Georgia common law tort principles, it becomes necessary to determine whether the promulgation of federal standards for the preservation of registered historic sites is tantamount to federal preemption of plaintiff’s specific allegation in this case that The Grand Staircase of the Fox Theatre is in violation of local building codes. In my view, the federal standards for historic preservation do preempt common law claims of negligence per se for alleged violations of local building codes conflicting with those federal standards. But those federal standards do not preempt a Georgia common law tort action premised upon the circumstance that defendants operated the theater in an environment too dim and darkly illuminated to see and appreciate the risk posed by the foreshortened handrail in its historically accurate state. See, e.g., Central of Ga. R. Co. v. Markert, 200 Ga. App. 851, 852 (3) (410 SE2d 437). Since, in my view, a jury — and not this Court — should determine whether plaintiff failed to exercise ordinary care for her own safety in that dimly illuminated theatre, I respectfully dissent from the affirmance of summary judgment.
Decided July 10, 1997 Wheeler & Watson, D. Kevin Wheeler, James A. Watson, for appellant. Gorby & Reeves, Michael J. Gorby, Amanda H. Burri, for appellees.I am authorized to state that Judge Eldridge joins in this dissent.