THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 17, 2017
In the Court of Appeals of Georgia
A17A0824. ST. JOSEPH’S HOSPITAL OF ATLANTA, INC. v.
GARDNER SEWELL HALL et al.
RICKMAN, Judge.
Gardner Sewell Hall brought a negligence action against St. Joseph’s Hospital
of Atlanta, Inc. to recover for personal injuries he sustained when he fell in the
hospital’s visitor parking deck; his wife asserted a claim for loss of consortium. St.
Joseph’s appeals from the trial court’s order denying its motion for summary
judgment.1 For reasons that follow, we reverse.
“A de novo standard of review applies to an appeal from a grant or denial of
summary judgment, and we view the evidence, and all reasonable conclusions and
inferences drawn from it, in the light most favorable to the nonmovant.” (Citation and
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This Court granted St. Joseph’s application for discretionary appeal.
punctuation omitted.) El Ranchero Mexican Restaurant v. Hiner, 316 Ga. App. 115,
116, n.1 (728 SE2d 761) (2012).
Viewed in the light most favorable to Hall, the evidence shows that during the
week of February 10, 2014, Atlanta was hit with an ice storm. Hall’s wife had a
colonoscopy scheduled for February 14, 2014, and Hall called her doctor the night
before or early that morning to confirm that the doctor would be there. The morning
of February 14, Hall drove his wife to St. Joseph’s and let her out in front of the
hospital’s main lobby. Hall then drove to the east visitor parking deck, where he had
been many times before, entering the deck at approximately 8:45 a.m. Hall drove into
the deck on a lower, covered level, and proceeded to the upper, uncovered level,
where he parked between two cars. He was not aware of any ice on the pavement of
the parking deck as he drove into the deck, but deposed, “[t]hat’s not to say there was
none there.” When Hall opened his car door, he did not look for ice or snow before
exiting his car, and took approximately three steps before falling on invisible or black
ice. He did not see the ice before he fell. Hall sustained injuries to his elbow and
shoulder from the fall.
After his fall, Hall was taken to St. Joseph’s emergency room. One of the
emergency medical technicians who responded to the scene deposed that she had
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trouble with her footing between the ambulance and Hall’s car. Footage from a
surveillance camera in the parking deck, taken shortly after Hall’s fall, shows Hall
sitting on the ground near his car. The footage also shows that visible ice and snow
remained under and around some of the parked cars and around dividers in and
outside the parking area, but not in the area where Hall was sitting.
As a general rule, St. Joseph’s security officers patrol the visitor parking deck
every two hours, with their primary role being to provide security. During inclement
weather conditions, the security officers will also look for snow and ice and
communicate information about any ice patches they discover to the engineering
department. When they discover an ice patch, the officers are trained to wait until
engineering arrives to determine what needs to be done. The week of February 10,
2014 was considered a winter weather event at St. Joseph’s, and during such an event,
employees are not allowed to go home; they sleep at work. On the morning of
February 14, 2014, the visitor parking deck was completely closed from 5:00 a.m.
until approximately 7:00 a.m. due to snow and ice conditions. That morning, prior to
Hall’s fall, a security officer patrolled the visitor deck at 2:45 a.m., 5:05 a.m., and
7:13 a.m.
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During the week of February 10, 2014, employees in St. Joseph’s engineering
department patrolled St. Joseph’s entire campus every other hour, around the clock.
On February 14, several employees in the engineering department worked together
to clear the visitor’s parking deck of snow and ice. Some employees drove a pick up
truck with a spreader to spread sand and salt on the driving lanes of the deck, and
other employees spread it by hand in areas that they could not get to with the truck
and in parking spaces where cars had pulled out. The morning of February 14, the
lead mechanic in the engineering department spread sand and salt with the truck
spreader at 3:00 a.m., 5:00 a.m., and 6:00 a.m. At 7:00 a.m., he walked the deck on
patrol, using a push spreader to treat the travelable areas, and did not encounter any
slick patches or black ice in those areas. Four other engineers were with him at the
time, some on foot and others in the truck. Prior to Hall’s fall, St. Joseph’s was not
aware of any other falls on ice outside the hospital during the week of February 10.
Hall and his wife sued St. Joseph’s for negligence and loss of consortium.
Following discovery, St. Joseph’s moved for summary judgment, contending that it
had not breached any duty owed to Hall to discover and remove naturally
accumulating ice in winter weather, that it lacked knowledge of the ice upon which
Hall fell, and that Hall had failed to exercise ordinary care for his own safety. The
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trial court denied St. Joseph’s motion, ruling that jury questions remained as to
whether St. Joseph’s had superior knowledge of the specific danger of black ice in the
upper level of the parking deck and whether St. Joseph’s actions in attempting to
clear the ice made the icy conditions less obvious.
1. St. Joseph’s contends that the trial court erred in holding that questions of
fact remained as to whether it had superior knowledge of the patch of black ice on
which Hall fell and whether its’ remedial efforts to clear the parking deck of snow
and ice contributed to the icy conditions.
“Where an owner or occupier of land, by express or implied invitation, induces
or leads others to come upon his premises for any lawful purpose, he is liable in
damages to such persons for injuries caused by his failure to exercise ordinary care
in keeping the premises and approaches safe.” OCGA § 51-3-1. This duty of ordinary
care requires the owner or occupier to protect the invitee from unreasonable risks of
harm of which the owner or occupier has superior knowledge. Robinson v. Kroger
Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997). To recover for his injuries, Hall
must prove that: (1) St. Joseph’s had actual or constructive knowledge of the hazard;
and (2) he, despite exercising ordinary care for his own personal safety, lacked
knowledge of the hazard due to St. Joseph’s actions or to conditions under St.
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Joseph’s control. See American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444 (2)
(679 SE2d 25) (2009).
(a) Superior knowledge. Although St. Joseph’s and Hall knew that an ice storm
had recently occurred, “knowledge of the generally prevailing hazardous conditions
is not sufficient to establish actual or constructive knowledge by the hospital or [Hall]
of the specific invisible ice hazard on the upper deck which caused the slip and fall.”
Columbus Doctors Hosp., Inc. v. Thompson, 224 Ga. App. 682, 683 (482 SE2d 705)
(1997). There is also no evidence that St. Joseph’s “had actual knowledge of the
invisible ice hazard on the upper deck, despite evidence that the hospital conducted
regular inspections of the premises.” Id. St. Joseph’s general knowledge that melted
ice or snow in the parking deck can re-freeze if temperatures drop and that black ice
is slippery does not equate to knowledge of the specific ice hazard that caused Hall
to fall. Although visible snow and ice remained in areas in and around the parking
deck, the evidence does not show that either Hall or St. Joseph’s had actual
knowledge of the specific invisible ice hazard that caused Hall’s fall.
We now consider whether the evidence shows that St. Joseph’s had
constructive knowledge of the ice hazard. “To establish constructive knowledge,
[Hall] must show that (1) a [St. Joseph’s] employee was in the immediate area of the
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hazard and could have easily seen the substance or (2) the foreign substance remained
long enough that ordinary diligence by [St. Joseph’s] employees should have
discovered it.” (Citations and punctuation omitted; emphasis in original.) Pirkle v.
Quiktrip Corp., 325 Ga. App. 597, 601 (2) (b) (754 SE2d 387) (2014). As to the first
factor, the evidence does not show that a St. Joseph’s employee was in the immediate
area when Hall fell.
As to the second factor,
[c]onstructive knowledge may be inferred when there is evidence that
the owner lacked a reasonable inspection procedure. In order to prevail
at summary judgment based on lack of constructive knowledge, the
owner must demonstrate not only that it had a reasonable inspection
program in place, but that such program was actually carried out at the
time of the incident. In addition, to withstand a motion for summary
judgment, the plaintiff need not show how long the hazard had been
present unless the owner has demonstrated its reasonable inspection
procedures.
(Citations and punctuation omitted.) Petrosky v. Embry Crossing Condo. Assn., 284
Ga. App. 354, 356-57 (1) (a) (643 SE2d 855) (2007). In Petrosky, this Court held that
the condominium association had constructive knowledge of the hazardous icy
conditions encountered by Petrosky in the parking lot because the association lacked
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any inspection procedure and did not inspect the premises on the date of Petrosky’s
fall. Id. at 357.
Here, however, the evidence shows that, during the week of the winter storm,
St. Joseph’s had round the clock patrols by the engineering department and security
officers to look for snow and ice, and that those patrols continued on the day Hall fell.
The engineering department also worked to clear the hospital premises, including the
parking decks, of snow and ice. The lead engineer testified that he and four other
engineers spread salt and sand in the travelable areas of the parking deck, by truck
and by hand, at 7:00 on the morning of February 14 and that he did not encounter any
slick patches or black ice in those areas. A security officer also patrolled the deck
from approximately 7:13 to 7:25 that morning. St. Joseph’s has shown that it had a
reasonable inspection procedure in place for the visitor parking deck under the
prevailing weather conditions and that the procedure was actually carried out on the
day Hall fell. Thus, constructive knowledge of the hazard cannot be inferred based
on the lack of a reasonable inspection procedure. See generally Watts & Colwell
Builders, Inc. v. Martin, 313 Ga. App. 1, 7 (4) (720 SE2d 329) (2011) (“[t]he law
does not require [an owner or occupier of land] to conduct an inspection that
disclose[s] every latent defect on the property. If this were the rule, then proprietors
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would be absolutely liable for all defective conditions on their property. The law does
not impose such absolute liability.”) (citations and punctuation omitted).
Hall has not come forward with evidence that St. Joseph’s had actual or
constructive knowledge of the ice hazard that caused Hall’s fall. See American
Multi-Cinema, Inc. v. Brown, 285 Ga. at 445 (3). Thus, “this case does not present a
situation in which [St. Joseph’s] knew of the potential hazard and [Hall] did not.”
Speaks v. Rouse Co. of Ga., 172 Ga. App. 9, 11 (321 SE2d 774) (1984).
(b) St. Joseph’s remedial efforts. As St. Joseph’s points out, in slip and fall
cases involving ice in winter weather, we have held that where the accumulation of
ice “on a premises is naturally occurring and not attributable to any affirmative action
on the proprietor’s part, the proprietor has no affirmative duty to discover and remove
it in the absence of evidence that it had become an obvious hazard by means other
than natural accumulation.” (Citation and punctuation omitted.) Kouche v. Farr, 317
Ga. App. 277, 278-79 (730 SE2d 45) (2012). The trial court determined that this rule
did not apply because St. Joseph’s remedial efforts caused ice on the parking deck to
unfreeze and refreeze each evening and thus the ice was not simply a result of natural
accumulation. But St. Joseph’s remedial efforts did not create ice that had not
accumulated naturally; the accumulation was ice before it was treated and if the
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surface did not completely dry before temperatures dropped again, it naturally became
ice again. This is not a situation where St. Joseph’s created ice that was not already
there. Cf. Martin v. Dunwoody-Shallowford Partners, L.P., 217 Ga. App. 559, 561
(2) (c) (458 SE2d 388) (1995) (hazard created by sprinkler use in freezing weather;
parking lot owner had constructive knowledge of serious hazard that would continue
to be created so long as its sprinklers continued to operate in freezing temperatures).
Nonetheless, “[i]ce forming due to inevitable natural forces unaffected by
human agency does not preclude examination into the question of whether or not the
defendant was negligent in failing to take remedial action.” (Citation and punctuation
omitted.) Dumas v. Tripps of North Carolina, Inc., 229 Ga. App. 814, 816 (495 SE2d
129) (1997). In Dumas, there was no evidence that the owner of the parking lot had
reasonably inspected the lot for defects and that the ice formation was a new defect
of which the owner had no notice or sufficient time to correct. Id. at 816-817. As a
result, the court could not say as a matter of law that the owner had complied with its
duty to business invitees to keep the premises safe. See id; see also Kauffman v.
Eastern Food & Gas, Inc., 246 Ga. App. 103, 105 (3) (539 SE2d 599) (2000) (court
erred in granting summary judgment to property owner who presented no evidence
of a regular safety inspection procedure and no evidence that any inspections were
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done on the date in question). As set forth above, however, St. Joseph’s did have a
reasonable inspection procedure in place and that procedure was followed prior to
Hall’s fall on February 14, 2014.
The trial court determined that this case is similar to Telligman v. Monumental
Properties, 161 Ga. App. 13, 15 (2) (288 SE2d 846) (1982), which involved a slip
and fall on an icy sidewalk in front of an entrance to a business. The business owner’s
maintenance crew took actions to clear the icy conditions on the sidewalk areas, but
admittedly made no efforts to remove the ice in front of the entrance where Telligman
fell. Id. Under these circumstances, this Court held that the business owner was “at
fault” with regard to “any hazardous icy condition existing at this entrance and had
at least constructive knowledge thereof.” (Punctuation omitted; emphasis supplied)
Id. That is not the situation presented here as St. Joseph’s inspected and treated the
parking deck and did not concede that it made no effort to remove ice from the area
where Hall fell.
Finally, relying on Osowski v. Smith, 262 Ga. App. 538, 540 (1) (586 SE2d 71)
(2003), the trial court accepted Hall’s argument that because St. Joseph’s had
voluntarily assumed a duty to patrol the deck and remove ice pursuant to its internal
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policies and procedures, a jury must determine whether those acts were performed
with ordinary or reasonable care. In Osowski, a cable television installer was attacked
by a homeowner’s dog after receiving assurances from the homeowner that he would
restrain his dogs. Id. at 538-539. The installer filed suit against the homeowners for
negligence and this Court reversed the grant of summary judgment to the
homeowners, ruling that a jury question existed “as to whether [the homeowner]
explicitly or implicitly agreed to undertake ensuring that the dogs would not pose a
risk of harm to Osowski.” Id. at 541 (1). Even assuming that the voluntary
undertaking theory, which provides that a person may be held liable for the negligent
performance of a voluntary undertaking, is applicable here, “[o]ne of the essential
elements of this claim is reasonable reliance by the injured person upon the voluntary
undertaking.” Abundant Animal Care, LLC v. Gray, 316 Ga. App. 193, 196 (2) (728
SE2d 822) (2012). Without evidence that Hall was aware of St. Joseph’s voluntarily
imposed policies and procedures prior to his fall, he could not have relied upon them,
and St. Joseph’s cannot be held liable based on a theory of voluntary undertaking. See
id. at 196-97.
And to the extent that Hall “would have us infer [St. Joseph]’s negligence
merely from evidence of [Hall]’s fall in an area [St. Joseph’s] treated . . ., proof of
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nothing more than the occurrence of the fall is insufficient to show that a person
bound to exercise reasonable care as to premises . . . has not done so.” (Citation and
punctuation omitted.) Davidson v. Meticulously Clean Sweepers, LLC, 329 Ga. App.
640, 645 (2) (765 SE2d 783) (2014). Nor does the mere existence of black ice at the
spot where Hall fell prove that St. Joseph’s was negligent in its exercise of its
de-icing duties. See id.
2. St. Joseph’s contends that the trial court erred by holding that Hall exercised
ordinary care for his own safety as a matter of law. Given our holding in Division 1
that Hall has not shown that St. Joseph’s had actual or constructive knowledge of the
specific hazard that caused his fall, we need not address this issue.
Judgment reversed. Ellington, P. J., and Andrews, J., concur.
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