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Posted by H. Lee Pruett

Morrell and Doris Perkins checked into the Comfort Inn in Valdosta on March 21, 2006. Three days later, after checking out, Mr. Perkins walked down the stairs from their second floor room, turned to walk along the hotel porch, stepped off a seven or eight inch step or curb between the porch and the parking lot, and fell, breaking his ankle. Plaintiffs filed suit against the owner of the hotel. Mr. Perkins admitted he had “likely” gone up and down the same curb prior to his fall, and Ms. Perkins testified they had “probably” negotiated the curb once each morning and once each night. The defendant owner filed a motion for summary judgment, arguing the curb was no hazard, the hotel had no knowledge of a hazard, and if it was a hazard, Mr. Perkins had equal knowledge of it. The trial court granted Defendant’s motion. In Perkins v. The Val D’Aosta Co., Case No. A10A0413 (Ga. Ct. App., July 9, 2010), the Court of Appeals reversed, further narrowing the defense of equal knowledge from prior traversal of a hazard.

The Court quickly dispensed with Defendant’s argument that the curb presented no hazard. Plaintiffs presented the affidavit of a professional engineer who determined the curb’s height exceeded the applicable building code, the lighting was poor, and there was an absence of any warning or paint (other steps at the hotel were painted). This evidence was sufficient to create an issue of fact as to whether the curb was a hazard. The Court also predictably found that Defendant was charged with constructive knowledge of the hazard because an owner or occupier has a duty to conduct reasonable inspections and remedy dangerous conditions.

While acknowledging the rule that a plaintiff must show the owner had superior knowledge of the hazard, however, the Court strained to negate Mr. Perkins’s own knowledge of the curb prior to his accident. In a static defect case, when the plaintiff “has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover” for a resulting injury. Perkins (citation and punctuation omitted). In this case, however, the Court repeated language that almost completely guts the prior traversal rule: “it is the plaintiff’s knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids.” Perkins (citation and punctuation omitted). Here, Plaintiff stepped over the curb at least twice each day for two or three days without incident prior to his fall. How could the hazard be more specific? What “knowledge” could Plaintiff have lacked? Good questions for the jury, if not the Court.