dissenting.
I respectfully dissent, as it is my view, that the majority incorrectly applies the “superior knowledge” doctrine in holding that the absence of proof regarding Ludwig’s knowledge of a hazardous condition or defect in the temporarily braced structure demands a finding that she is not responsible for her riding student’s injuries. On the contrary, it is my view that the circumstances of this case authorize a finding that Ludwig failed to exercise ordinary care in inspecting or otherwise making sure the hastily braced shelter over her riding arena was safe for her students. In fact, it is my view that the very lack of evidence cited by the majority regarding the defect which caused the roof structure to collapse (which is not surprising since the defect may well have been impossible to detect after the structure collapsed) authorized a charge on res ipsa loquitur, thereby allowing the jury to draw an inference that Ludwig’s negligence in failing to inspect or properly maintain her temporarily braced riding structure was the cause of the roof’s collapse. Finally, I cannot agree that a summer rainstorm is an occurrence which authorizes a charge on “act of God.”
1. The “superior knowledge” defense is available in cases where the danger is open and obvious and the invitee closes her eyes to the danger, assuming the dangers and risks incident to the known condition. See White v. Fred F. French Mgmt. Co., 177 Ga. App. 661 (340 SE2d 276). “A finding that the plaintiff is precluded from recovering . . . because of her own equal or superior knowledge of the hazard is, in essence, a finding that plaintiff’s own negligence preponderated in causing the injury. Cf. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).” Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348). In the case sub judice, there is no evidence that the defect or frailty which caused the temporarily braced riding structure to collapse (under the stress of a summer storm) was open and obvious. It therefore cannot be said that Deborah McCurley’s own negligence preponderated in causing her injury. On the other hand, Ludwig had a duty to exercise ordinary care in keeping her premises safe to invitees. OCGA § 51-3-1. To this extent, Ludwig knew that the riding shelter was still under construction and that it had been temporarily braced earlier in the day before McCurley arrived for her rid*802ing lesson. However, the evidence indicates that Ludwig did nothing to make sure that the structure was safe. She did not inspect the structure and she (apparently) only relied on her son’s word that it was safe to carry on business as usual. It is my view, that these circumstances would authorize a finding that Carole Ludwig was negligent in carrying on her business under a large and temporarily braced structure without at least some inspection for the structure’s integrity. Moreover, it is my view that (at the very least) the absence of evidence regarding the reasons for the failed structure would have authorized a charge on res ipsa loquitur so as to allow the jury to resolve the issue of Ludwig’s negligence.
“The doctrine of res ipsa loquitur ... is a doctrine of necessity to be applied, where otherwise appropriate, in cases where there is no evidence of consequence showing negligence on the part of the defendant. See Harrison v. Southeastern Fair Assn., 104 Ga. App. 596 (3), 605-608 (122 SE2d 330) (1961); Parker v. Dailey, 226 Ga. 643, 645 (177 SE2d 44) (1970).” Southern Bell Tel. &c. Co. v. LaRoche, 173 Ga. App. 298, 299 (1) (325 SE2d 908). “The first effect of res ipsa loquitur is to carry the case to the jury. If the requirements of the maxim are met, the trial judge may not direct a verdict for the defendant, nor grant summary judgment. The second effect is to allow the jury to draw an inference of the negligence alleged if they see fit to do so.” Green, Ga. Law of Evidence (3d ed.), § 39 at 84. The following elements are sufficient to support such an inference under res ipsa loquitur: “A showing (1) that an injury occurred, (2) that the offending instrument was owned or wholly controlled by the defendant, (3) that the occurrence was such as ordinarily would not happen without negligence, and (4) that neither the plaintiff nor anyone else had tampered with the instrumentality causing the injury. ...” Id. The circumstances of the case sub judice reveal these four elements are present so as to authorize a charge on res ipsa loquitur. See Smith v. Telecable of Columbus, 142 Ga. App. 535, 536 (236 SE2d 523).
2. It is my view, that the evidence did not authorize a charge on “act of God” and that McCurley should also be afforded a new trial against Ludwig’s son, John Pritchard.
“ ‘While every shower of rain that falls upon the earth is the act of God, in contradistinction to the act of man, yet an ordinary freshet is not the act of God in the legal sense which protects a [person] against responsibility for the non-performance of a [legal duty].’ ” Goble v. Louisville &c. R. Co., 187 Ga. 243, 249 (4), 250 (200 SE 259). Contrary to the majority’s view, I do not think swaying sycamore trees and a sudden summer storm are such strange and extraordinary events so as to allow Pritchard to raise the defense of “act of God.” Any person who has enjoyed hot summer days in Georgia knows that sudden strong winds, swaying pines and late afternoon showers are *803common.
Decided December 5, 1994 Reconsideration denied December 20, 1994 McDonald, Haggard & Carney, James E. McDonald, Jr., H. Patrick Haggard, for appellants. Robert J. Huff, Gorby & Reeves, Michael J. Gorby, Blake H. Frye, for appellees.I am authorized to state that Judge Blackburn joins in this dissent.