D'Elia v. Phillips Edison & Company, Ltd.

354 Ga.App. 696

839 S.E.2d 721

D'ELIA

v.PHILLIPS EDISON & COMPANY, LTD. et al.

A19A2281

Court of Appeals of Georgia.

February 26, 2020

Reconsideration Denied March 23, 2020

Charles Ronald Bridgers, Michael A. Caldwell, Earnest H. Delong Jr., Atlanta, for Appellant.

Stevan A. Miller, Gwendolyn Dralle Havlik, Atlanta, for Appellee.

Markle, Judge.

Marilyn D'Elia was injured at the Villages at Eagles Landing shopping center when she tripped and fell in the parking lot. She filed suit against Phillips Edison & Company, LTD, and Eagles Landing Station, LLC, both individually and d/b/a Villages at Eagles Landing shopping center (collectively "Eagles Landing"), seeking damages for the injuries she sustained.¹ The trial court granted summary judgment in Eagles Landing's favor. On appeal, D'Elia argues that the trial court erred by granting Eagles Landing's motion for summary judgment, and in finding that the defect that caused D'Elia to trip and fall was open and obvious. Because the alleged defect was a static condition that was open and obvious, we affirm.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Edwards v. Moore , 351 Ga. App. 147, 830 S.E.2d 494 (2019).

So viewed, the evidence shows that, on an afternoon in June 2014, D'Elia was heading to the tanning salon in Eagles Landing shopping center, which she frequented weekly. As she walked to the salon, she stopped to throw trash in a nearby trash can, caught her toe on the curb where the parking lot meets the walkway, and fell, injuring her right elbow and requiring surgery.

D'Elia indicated that the place where she fell appeared to be flat, where a wheelchair or shopping cart can roll, and that the area where her toe caught was elevated no more than about one inch or less. D'Elia did not typically walk in this direction when she visited the shopping center, and she only went in that direction on the day of the accident to throw her trash away. When the accident occurred, D'Elia was looking at the trash can, and she could not tell if the area was raised at the time of her fall. A few days after her accident, D'Elia returned to the scene and took a video of the area where she noticed the "lip" of the concrete.

D'Elia sued Eagles Landing, alleging that the defendants had actual or constructive knowledge of the defective condition at the junction of the parking lot and the walkway. Eagles Landing moved for summary judgment, arguing that D'Elia had presented no evidence showing that they had actual or constructive knowledge of a hazardous condition on the premises, and that D'Elia failed to use reasonable care for her own safety when traversing an open and obvious condition.

D'Elia subsequently amended her complaint to assert that the defendants had actual or constructive knowledge of the static condition that caused her fall. In response to the summary judgment motion, D'Elia submitted an expert affidavit opining that the change in elevation in the walking surface between the parking lot and the walkway exceeded a quarter of an inch, was abrupt in nature, and violated certain safety standards. Following a hearing, the trial court granted summary judgment in favor of Eagles Landing, and this appeal followed.²

In related arguments, D'Elia argues that the trial court erred in granting Eagles Landing's motion for summary judgment because the defect in the walkway that caused her to fall was not an open and obvious static condition, and issues of fact remain as to whether the transition between the parking lot and the sidewalk constituted a hazardous condition of which Eagles Landing had superior knowledge. We conclude that the trial court properly found that the alleged defect was open and obvious.

Under OCGA § 51-3-1, a person who owns or occupies land and by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, ... is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. In order to recover on a premises liability claim, a plaintiff must show (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. Accordingly, the fundamental basis for an owner or occupier's liability is that party's superior knowledge of the hazard encountered by the plaintiff. In other words, a plaintiff is not entitled to recovery if the undisputed evidence demonstrates that the plaintiff's knowledge of the hazard was equal to or greater than that of the defendant.

(Citations and punctuation omitted.) Cherokee Main Street v. Ragan , 345 Ga. App. 405, 407, 813 S.E.2d 397 (2018).

"A static condition is one that does not change and is dangerous only if someone fails to see it and walks into it." (Citation and punctuation omitted.) Jones Lang LaSalle Operations v. Johnson , 350 Ga. App. 439, 440, 829 S.E.2d 629 (2019). An uneven walkway is a static condition. See Nemeth v. RREEF America , 283 Ga. App. 795, 797 (1), 643 S.E.2d 283 (2007). When the claim involves a static condition,"[i]f nothing obstructs the invitee's ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks." (Citation omitted.) Rentz v. Prince of Albany , 340 Ga. App. 388, 390 (1), 797 S.E.2d 254 (2017).

Moreover,

[o]ccupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel. The ultimate issue is whether [Eagles Landing] was negligent in maintaining a hazardous condition on the property, and in everyday life, persons are required to negotiate floors, steps, and doorways. Even if the [transition in the walkway] was hazardous as [D'Elia] assert[s], the condition was open and obvious, and thus, in the exercise of ordinary care, [she] could have avoided it. There is no duty to warn of the obvious.

(Citation and punctuation omitted.) McLemore v. Genuine Parts Co. , 313 Ga. App. 641, 644, 722 S.E.2d 366 (2012) ; see also James v. Sirmans , 299 Ga. App. 262, 263, 683 S.E.2d 354 (2009) ("an invitee is not entitled to an...