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IN A CASE OF NO GOOD DEED GOES UNPUNISHED, COURT OF APPEALS AFFIRMS SUMMARY JUDGMENT IN A PREMISES CASE

Posted by Susan J. Levy

In January, 2010, ice and snow blanketed metro Atlanta, rendering the Defendants, Mr. and Mrs. Farr, unable to get their cars out of their driveway. Kouche v. Farr et al., 2012 Ga. App. LEXIS 610 (July 2, 2012). Recognizing her friends’ plight, Plaintiff Kouche drove to their home in order to drive Mrs. Farr back to her house to join some friends in a retreat. Upon her arrival, Plaintiff parked at the top of the Farrs’ driveway, and traversed it cautiously four times as she ferried some of Mrs. Farr’s belongings back and forth to the car.

After the retreat, the two women stopped at the grocery store before returning to the Farrs. As she unloaded groceries, Plaintiff noticed Mrs. Farr sliding down the driveway, barely maintaining her balance before becoming stuck in the snow. Once again, Plaintiff came to her rescue, maneuvering down the driveway to help her friend. However, as luck would have it, just as Plaintiff reached for Mrs. Farr, she slipped and both women fell to the ice. Plaintiff sustained a fractured wrist in the process. Unfortunately for Ms. Kouche, the Georgia Court of Appeals found that her equal knowledge of the icy conditions barred any recovery. Id. at 5-6.

A landowner or occupier owes a duty to an invitee to “exercise ordinary care in keeping the premises and approaches safe.” O.C.G.A. ยง 51-3-1. To recover for a breach of that duty, an invitee must show the defendant had actual or constructive knowledge of the specific hazardous condition, and that the invitee lacked knowledge of the hazard despite exercising ordinary care. Garrett v. Hanes, 273 Ga. App. 894 (2005); Hindmon v. Virgil’s Food Mart, Inc., 252 Ga. App. 732 (2001). “The true basis for an owner’s liability is his superior knowledge of the existence of a condition that could subject his invitees to an unreasonable risk of injury.” Id., 273 Ga. App. at 895. An owner or occupier does not insure the invitee’s safety, “the law requires only such diligence toward making the premises safe as the ordinarily prudent person in such matters is accustomed to use.” Hamblin v. City of Albany, 272 Ga. App. 246, 248 (2005).

The Court noted that in slip and fall cases involving the accumulation of ice or snow which are “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.” Kouche at * 4 (citations omitted). The Court of Appeals affirmed the issuance of summary judgment to the Defendants, leaving Plaintiff with a broken wrist and no compensation.