Sunlink Health Systems, Inc. v. Pettigrew

SMITH, Presiding Judge.

We granted an application for interlocutory appeal to review the trial court’s denial of the defendant’s motion for summary judgment in this slip-and-fall action. Vera Pettigrew brought this action against Sunlink Health Systems, Inc., d/b/a Memorial Hospital of Adel (“the hospital”), asserting that she was injured when she slipped and fell while entering the hospital. She alleged negligent design, construction, and maintenance, failure to inspect, and failure to warn regarding the condition of the entrance area. After discovery, the hospital moved for summary judgment. The trial court denied the motion in a one-sentence order and granted a certificate of immediate review. *340Because the evidence demonstrates that Pettigrew was not exposed by the hospital to any unreasonable risk of harm, we reverse.

Construed to support the nonmovant, the evidence shows that Pettigrew was an employee of the hospital for 12 years, working as a custodian between 1983 and 1995. On March 5,2003, she came to the hospital to visit her sister, who was a patient, on a morning when it was “pouring down rain.” Pettigrew parked her car and approached the hospital building through the main entrance, the same parking area and entrance that she used while working at the hospital. At the main entrance, a slanted curb or short ramp leads up from a circular driveway to the area in front of the doors. While the photograph of the entrance shows what appears to be an awning or roof shading the doorway, it is also apparent that the area is open to the elements.

As Pettigrew approached the entrance and after she negotiated the curb, she noticed an older man having difficulty opening the door. She stepped around him to open the door for him, and as she did so her “foot slipped out from under” her. Because she was concerned about the man, she “didn’t pay attention to the area if it was wet____I didn’t even look down.” She testified that she believed it was the “wet concrete” that caused her to fall. Pettigrew never testified that any sloping surface or the configuration of the entrance caused her to fall. Instead, she testified that the concrete was very slippery, and she believed this was caused by the rain and the air from inside the doors coming in contact with the concrete.1

The evidence demonstrates that Pettigrew was actually opening the entrance door when she fell. She testified that she had already negotiated the curb and had stepped around the man who was struggling with the door in order to open it for him. Moreover, she marked a photograph of the entrance with an “x” to show a location near the door, on the flat concrete surface, as the place her feet were located when she slipped. She also acknowledged that she was familiar with the entrance area, that the concrete outside the door was often wet because of the rain, and that when it rains “sometimes when we go in . . . it [is] slippery inside too.”

After a break and under further questioning from her attorney, Pettigrew testified that she was standing on a slanted curb when she fell. After she testified that her foot was on the slanted curb, however, *341she again testified that she was standing on flat concrete next to the door at the time her foot slipped, where the concrete was “sort of flat” or “flat.”

Applying the rule stated in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (1) (343 SE2d 680) (1986), we are required to construe Pettigrew’s contradictory testimony most strongly against her. “It is well established that on summary judgment a party’s self-contradictory testimony, if unexplained, must be construed against the party-witness, even when the party-witness is the respondent rather than the movant. [Cit.]” Walker v. Brannan, 243 Ga. App. 235, 237 (533 SE2d 129) (2000). Construing Pettigrew’s testimony in this fashion, we conclude that she was standing on a flat surface when her foot slipped on wet concrete. The curb or ramp therefore was not a causative factor in her fall, and any testimony with regard to the configuration of the ramp or the entrance area is irrelevant.2

The evidence therefore demonstrates that Pettigrew’s fall was caused by the accumulation of rainwater on the flat concrete entrance walkway, and she is charged with equal knowledge of this fact on a day of heavy rain.

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.
Under Georgia law, a slippery condition caused solely by rainwater is not a hazard because it presents no unreasonable risk of harm. As we recently noted, it is common knowledge that water accumulates on the ground on rainy days, and the risk of harm imposed by this accumulation is not unreasonable but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate.

(Citations, punctuation and footnotes omitted.) Emory Univ. v. Smith, 260 Ga. App. 900, 901-902 (581 SE2d 405) (2003). “[P]laintiffs in rainy day slip and fall cases are charged with equal knowledge that water *342is apt to be found in any area frequented by people coming in from the rain outside.” (Citation and punctuation omitted.) Id. at 902, n. 5.

Here, Pettigrew approached the doors of the hospital while she knew that it was “pouring down rain.” She also knew that water would accumulate around the entrance on rainy days. She therefore was charged with equal knowledge that water was likely to be present on the concrete at the entrance doors as people moved in and out of the hospital. Pettigrew therefore presented no evidence that the hospital exposed her to any unreasonable risk of harm.

The dissent contends that Pettigrew’s explanation of what she was doing when she fell creates a fact issue for jury determination. This appears to be a variant of the distraction argument raised by Pettigrew in her brief. But the distraction doctrine is simply inapplicable here, because for it to apply the distraction must be created by the owner or occupier of the land. Robinson v. Kroger Co., 268 Ga. 735, 746 (2) (b) (493 SE2d 403) (1997). The “older man” that Pettigrew stepped around to open the door was never identified, and no evidence was presented that he was a patient or infirm. Nor was evidence presented that Pettigrew’s voluntary decision to step around him to open the door was created by the hospital or within its knowledge.

The dissent also contends that we can conclude from the evidence that “after she negotiated the curb, Pettigrew stepped backward . .. and was no longer standing on a flat surface when she fell.” This conclusion cannot be inferred from the evidence before us, because Pettigrew testified that both of her feet were on the flat surface of the entrance when she slipped. Drawing an inference contrary to the plaintiffs own testimony would eviscerate the Prophecy rule and turn it on its head. This we cannot do.

In sum, Pettigrew testified that the rain, not any sloping surface, caused her fall. She is charged with equal knowledge of rainy day conditions, particularly at an entrance that she negotiated daily for 12 years and that she was aware became slippery when wet. Because Pettigrew presented no evidence that the hospital exposed her to any unreasonable risk of harm, we reverse the trial court’s denial of summary judgment.

Judgment reversed.

Andrews, P. J., Johnson, P. J., Ellington and Adams, JJ., concur. Barnes, C. J., and Miller, J., dissent.

The dissent asserts that Pettigrew testified that she slipped in condensation, but this was not her testimony. Nor does Pettigrew argue this on appeal; she acknowledges repeatedly in her brief that the rain was the cause of her fall. Pettigrew speculated during her deposition that some dampness may have been present because air came out of the door and “hit that concrete,” because it was “slippery inside too,” but her initial response was “from the rain.” Nor did Pettigrew present any testimony that interior air would produce condensation on the pavement on a dry day, independent of a heavy rain, or that the hospital had knowledge of such a phenomenon.

We note Pettigrew’s testimony that the configuration of the concrete at the entrance had been changed two or three weeks after her fall and before the photograph was taken, so that the curb or ramp was closer to the doors at the time of her fall. But this testimony is immaterial in light of her testimony, as construed under Prophecy, that she was standing on a flat concrete surface when she slipped.