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Posted by H. Lee Pruett

In Rutherford v. Revco, Case No. A09A1331 (Ga. Ct. App., Nov. 24, 2009), and Nosiri v. Helm, Case No. A09A1563 (Ga. Ct. App., Dec. 1, 2009), the Georgia Court of Appeals rendered questionable decisions denying the defendants summary judgment in cases where the plaintiffs appeared to have equal knowledge of the hazardous condition. These cases point out the increasing difficulty premises liability defendants face in convincing the court that they should prevail as a matter of law.

In Rutherford, the plaintiff fell on a ramp while exiting the defendant’s drugstore. The plaintiff’s expert testified that the ramp’s steepness and lack of a landing at the top created a dangerous condition and were the likely causes of the fall. The plaintiff, however, had entered the store through the same door, and the plaintiff testified that she did not know what had caused her to fall. The trial court granted the defendant’s motion for summary judgment, but the Court of Appeals reversed.

Reiterating the rule that a plaintiff must show the defendant had knowledge of the hazard and that the plaintiff lacked such knowledge despite the exercise of ordinary care, the Court first held that the defendant had constructive knowledge of the hazard because “[n]otice of the defect is presumed in cases of defective construction.” As to the second part of the test, that is, whether the plaintiff had equal knowledge of the hazard, the Court held “the fact that Rutherford had walked into the store once does not as a matter of law give her actual or constructive knowledge of the hazard she faced walking out of the store directly onto the steep ramp.” To prevail, the defendant must show that the plaintiff was aware of the “specific hazard,” not just knowledge of “the generally prevailing hazardous conditions.” The Court noted that the plaintiff’s view of the ramp was blocked by the door before she exited, there was no landing, and the ramp was not painted to distinguish it from the sidewalk below. The Court dispensed with the prior traversal rule by holding that “going up a ramp is obviously very different from coming down a ramp.”

Judge Andrews dissented. Because the plaintiff went up the ramp to get inside the store, he argued, “she is presumed to have had equal knowledge of any hazard.” More importantly, Judge Andrews pointed out what the majority failed to discuss: the plaintiff’s own testimony that she did not know why she fell. A plaintiff must be able to identify the cause of her fall. When the plaintiff can only speculate as to the cause, the defendant is entitled to summary judgment.

In Nosiri v. Helm, a 5-2 decision, the Court affirmed the denial of summary judgment for the defendant even though the undisputed facts appeared to show the plaintiff had equal knowledge of the hazard. The plaintiff was an independent contractor with a prosthesis on her left leg. Prior to her accident, she had complained to one of the defendants about wires, including the defendant’s radio and cell phone charger wires, which lay across the floor near her workstation. She would often move the cell phone cord out of the way, as she did the day before her accident. The plaintiff was injured when, after passing by the defendant and another man twice, she came by them a third time and the cell phone cord caught her prosthesis, causing it to come off and the plaintiff to fall.

Citing Robinson v. Kroger Co., 268 Ga. 735 (1997), the majority held that a jury must determine whether the plaintiff exercised reasonable care. As to the plaintiff’s knowledge of the hazard, the Court held that “while there is no question that Helm was aware of the existence of the cell phone cord the day before her fall and the other days that she moved it, there is no evidence that she was aware of its exact position at the time it tripped her.”

Judge Andrews, joined by Judge Johnson, again dissented. Judge Andrews pointed out that the plaintiff had worked at the location for three months and said something about the phone cord every day. On the day of the accident, she walked across the cord twice before it caught her leg. Judge Andrews too cited Robinson and the line of cases in which “the evidence was undisputed that the plaintiff had knowledge of the hazard equal to or greater than that of the owner/occupier, making it impossible for the plaintiff to prove that the owner/occupier had . . . superior knowledge.” Here, too, the plaintiff’s own voluntary negligence should have barred her claim. Judge Andrews stated that the majority’s holding “construes the ‘equal knowledge’ and ‘voluntary negligence’ defenses set forth in Robinson, supra, so narrowly as to virtually eliminate the owner/occupier’s right to summary judgment.”