Baggs v. Chatham County Hospital Authority

Pope, Judge,

dissenting.

This is a typical “rainy day” slip and fall case. In such a case, it is difficult for the plaintiff to show the premises owner had superior knowledge of the allegedly dangerous condition, which is a necessary prerequisite to recover from the owner. This is because “[i]t is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the door is likely to be wet . . . .” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (332 SE2d 304) (1985). Plaintiff argues she has met the burden of creating a genuine issue as to the hospital’s liability (1) by establishing she did not have equal knowledge of the likelihood of water at the entrance; (2) by alleging the negligent construction or maintenance of the entrance; and (3) by establishing defendant had or should have had constructive knowledge of the existence of the puddle in which she fell.

First, plaintiff argues she did not have equal knowledge of the likely existence of water on the floor of the hospital entrance, because, she claims, it stopped raining twenty to thirty minutes before she arrived at the hospital. She argues that the hospital should have had sufficient opportunity to discover and remedy any water left on the *838floor in this period of time. Even if the rain had ceased while plaintiff was en route to Savannah from Ludowici, this does not establish when it stopped raining in and around the hospital in Savannah. Moreover, plaintiff admits the ground and pavement outside the hospital were still wet. “Even if the rainfall had ceased completely it seems obvious that the defendant, and others in a like position, must be afforded a reasonable opportunity for mopping the water from the floor. Until such time as one who enters might reasonably expect to find the floor free of water he should expect to find water present.” Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 177 (138 SE2d 77) (1964). In Gibson, the expectation to find the floor free of water was negatived by plaintiff’s admission that the rain was still “drizzling.” Here, the expectation is negatived by plaintiff’s admission that outside conditions were still wet. The reliance of the majority opinion upon Weight Watchers of Greater Atlanta v. Welborn, 165 Ga. App. 290 (299 SE2d 760) (1983), and Telligman v. Monumental Properties, 161 Ga. App. 13 (288 SE2d 846) (1982) is misplaced, for in both those cases defendant admitted having knowledge of the existence of the hazardous condition. In those cases plaintiffs’ general knowledge of weather conditions did not bar their recovery from a defendant with knowledge of the specific hazard which caused the fall.

According to Gibson, a premises owner is not liable for the tracking in of water due to outside weather conditions “ ‘except, perhaps, in some circumstances, as where it is shown that the construction of the entranceway was inherently dangerous ....’” Id. In reliance upon Gibson, plaintiff alleged in her complaint that the lobby entrance was negligently constructed. She testified there were no wet tracks leading from the door to the puddle three to four feet inside the door where she fell. She argues this is evidence that the puddle was not caused by the tracking in of water but accumulated as a result of the faulty construction of the entrance. Plaintiff offers no evidence to explain how water would have accumulated three to four feet inside the door as a result of negligent construction. On the other hand, in support of its motion for summary judgment, defendant offered the affidavit of a licensed architect who testified he was involved in the design of the front entrance and lobby and that it was designed and constructed with that degree of care and skill ordinarily applicable to the design and construction of such buildings. He also testified that because the entrance slopes upward, it would be impossible for rain water to flow into the lobby. Where defendant produces evidence supporting the conclusion that the surface in question was not defective in any manner, and plaintiff fails to produce any evidence showing negligent design, construction, installation or maintenance, summary judgment is proper. Joyner v. Sandefur Mgt. Co., 168 Ga. App. *839854 (3c) (310 SE2d 578) (1983).

Decided June 22, 1988 Rehearing denied July 15, 1988 Richard D. Phillips, for appellant. Lee C. Mundell, Anne C. Marscher, for appellee.

Defendant presented the sworn affidavit of its director of engineering and maintenance attesting that the hospital had no notice of the existence of the puddle on which plaintiff fell. The fact that employees were positioned at various desks across the lobby from the spot where the plaintiff fell on a puddle which she described as smaller in diameter than a basketball does not establish defendant hospital had actual or constructive knowledge of the existence of the puddle. If the presence of water should have been obvious to employees stationed in another area of the entrance, it should also have been equally obvious to plaintiff who walked directly toward the puddle. See Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 SE2d 680) (1950).

In those cases cited by the majority in which this court held an issue was raised concerning the defendant’s knowledge of the hazard, some evidence other than the mere presence of defendant’s employees was presented. In Carder v. K-Mart, 185 Ga. App. 143 (363 SE2d 593) (1987), the assistant manager whose job it was to check the condition of the floor was standing five feet away from the puddle in which plaintiff fell and was heard to say just after the fall he “ ‘was afraid that this was going to happen.’ ” Id. at 144. In Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291) (1987), a mop and pail were standing nearby the spot where plaintiff fell and there was testimony the store employees had been mopping up rainwater all day. In Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523) (1988), the plaintiff’s testimony was consistent with the hypothesis that an employee of the grocery store was responsible for the presence of moisture allegedly on the floor where he fell. By contrast, no evidence exists in this case to contradict the sworn affidavit stating defendant had no actual knowledge of the puddle. If by their mere presence in the room defendant’s employees should have noticed the puddle, then by the same token plaintiff had equal opportunity to notice and avoid the puddle. I would affirm the grant of summary judgment to the defendant.

I am authorized to state that Judge Sognier joins in this dissent.