Posted by Susan J. Levy
In Duff v. Bd. Of Regents of the Univ. Sys. Of Georgia, No. A17A0438 (May 24, 2017), Plaintiff, a student at Georgia Perimeter College (“GPC”), exited a classroom and slipped and fell on rainwater tracked in by hundreds of students entering the building. It was undisputed that it had not been raining when Plaintiff first entered the building or that she had seen any rain on the floor on her way to class.
Plaintiff testified that she slipped on “standing water,” but could not describe the depth, width, or quantity of water. Duff v. Bd. of Regents of the Univ. Sys. of Georgia, Civ. Action File No. 14A52680-7 (June 28, 2016)(hereafter, the “Trial Court Order”). She also testified that her clothing was wet when she got up. A professor who assisted her after the fall testified that Plaintiff fell on a very thin layer of water analogous to the amount of water left after you take “a wet paper towel and wiped it across a surface.” The professor also testified that at the time she fell, students were standing outside of the classroom waiting to get in wearing wet clothes and carrying dripping umbrellas.
The trial court granted GPC’s motion for summary judgment, relying on Georgia precedent that rainwater is not in and of itself a hazardous condition unless plaintiff can demonstrate that there is an “unreasonable accumulation of water.” Trial Court Order at p. 3. Relying on a 2013 Court of Appeals’ case, Season All Flower Shop, Inc. v. Rorie, 323 Ga. App. 529, the trial court also held that summary judgment was appropriate even though Plaintiff fell in an interior hallway as opposed to an entrance. Trial Court Order at p. 5. Specifically, quoting the Appeals Court in Season All Flower, the trial court held that “‘water is apt to be found in any area frequented by people coming in from the rain outside, and not just at the ‘threshold’ of an entrance door.’” Id. at 5.
In a decision that must not be taken lightly by property owners and their insureds, the Court of Appeals reversed. The Court held that Plaintiff’s self-serving testimony regarding “standing water” (despite her inability to describe the dimensions of that water) created a question of fact and precluded summary judgment. Relying on Dickerson v. Guest Svcs. Co., 282 Ga. 771 (2007), the Court of Appeals wrote that although it is “common knowledge that the ground outside gets wet on rainy days, it cannot properly be applied to a portion of an interior space where [people] have no reason to expect water to accumulate on the floor.”
Our insured property owners and managers must take note of the Court of Appeals’ decision in Duff, as it appears to create a duty to continuously monitor during rain, particularly in buildings with heavy foot traffic. As the trial court warned, “[a] departure from the rainy day case law here [could] result in premises owners having to ‘continuously mop during a shower’ each time it rains simply because it is possible that one [person] does not know it is raining outside. This result would essentially eviscerate the protections that are afforded to premises owners on rainy days.” Trial Court Order at p. 3, fn 1.
At the very least, the Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building, regardless of whether management places mats at the entrance. It all comes down to location. Business owners may feel pretty confident in his/her chances of getting out on a motion for summary judgment when plaintiff’s slip and fall occurs at the entrance of the premises on a rainy day. However, after Duff, plaintiffs will have an easier time creating a question of fact when they slip and fall on rain tracked into the interior of the building, which would preclude summary judgment.