Denham v. Young Men's Christian Ass'n & Youth Center of Thomasville, Inc.

Ruffin, Judge.

Jacqueline L. Denham sued the Young Men’s Christian Association & Youth Center of Thomasville, Inc. (“the YMCA”) for damages that she incurred when she slipped and fell on the YMCA’s premises. Denham appeals the trial court’s grant of summary judgment. We affirm.

The Supreme Court of Georgia has held that “ ‘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 *198generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to Denham, the evidence shows that on May 17, 1993, Denham visited the YMCA to use the jacuzzi. Although this was her first time using the YMCA’s jacuzzi, Denham had previously used another jacuzzi. Upon entering the jacuzzi, she saw the swirling water, but she could not see the outline of the unmarked steps because they were not marked. After stepping into the jacuzzi, Denham “felt along with [her] foot trying to find [the step].” Even though the YMCA had a handrail available for patrons to use, Denham does not recall using the jacuzzi’s handrail. Upon entering, Denham fell forward, hitting her chin on the other side of the jacuzzi. Denham attributed her fall to the unmarked steps.

On appeal, Denham contends the trial court erred by granting summary judgment in favor of the YMCA because an issue of fact exists concerning whether the YMCA’s failure to mark the outline of the jacuzzi steps created a defective condition. In support of this argument, Denham cites her deposition testimony where she stated that when she entered the jacuzzi, she was “groping” her way down the steps, despite the swirling water and unmarked steps, that there were no warning signs posted, and that the YMCA did not act in response to another patron’s prior warning of the danger posed by the unmarked steps. However, this testimony also shows that Denham was aware of the condition of the jacuzzi steps prior to using them but decided to enter the jacuzzi by use of the steps. The trial court properly rejected Denham’s argument against summary judgment.

*199“ ‘For [Denham] to recover under a common law negligence theory, there must have been a defective condition on [the YMCA’s] premises, which defect was the cause of [Denham’s] fall and of which [the YMCA] had superior knowledge. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ ” (Citations and punctuation omitted.) Young v. YMCA of Metropolitan Atlanta, 204 Ga. App. 224, 225 (419 SE2d 97) (1992). Construing the evidence in favor of Denham, it is clear from the record that Denham’s knowledge of the alleged defective condition was equal to that of the YMCA.

Denham also contends that the YMCA failed to post warning signs to proceed with caution or to encourage use of the handrail and that the YMCA failed to heed the warning of another patron that the unmarked steps posed a danger. Review of the record shows that no signs appeared in or around the jacuzzi at issue. However, in this instance, whether warning signs should have been posted or not is irrelevant to determining whether a genuine issue of material fact exists because this Court has held that “[t]here should be no duty to warn of the perfectly obvious such as posting a sign on a stairwell that ‘These are steps. . . .’ [Cit.]” Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987) (physical precedent only). Consequently, the YMCA’s failure to post signs is not a basis for finding a genuine issue of material fact.

Moreover, the standard for review of a “slip and fall” case is “whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Robinson v. Kroger Co., 268 Ga. at 748 (2) (b), supra. Pretermitting whether the unmarked steps resulted in a defective condition, the evidence clearly shows that Denham knew that she was unable to see the unmarked steps through the swirling water, but intentionally descended into the jacuzzi using the unmarked steps. Considering the totality of the circumstances, the condition of the unmarked steps being known to Denham prior to her fall, the YMCA cannot be held liable for Denham’s injury. See generally id. Accordingly, the trial court properly granted summary judgment to the YMCA.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur specially.