For Georgia Trip and Fall Cases, You Often Lose if You Have Been to the Property Before
Atlanta Trip and fall and slip and fall cases can result from spills or recent damage or something that has been there a long time, known as a static defense in the Law of Georgia. With a static defect, a key question will be whether the Plaintiff had been there before and seen the defect. If they have, the case is likely to be thrown out because they have the same knowledge of the danger that the landlord does and cannot claim to be ignorance.
A recent Georgia premises liability case arose when the plaintiff fell through the balusters of a railing around the front landing of a second-floor apartment. The plaintiff was visiting the apartment as the guest of the second-floor apartment’s tenant. He sued the tenant’s landlord, claiming that the balusters had been negligently constructed and maintained and didn’t comply with the correct building and safety codes. He argued that there was too big a gap in the balusters, and this gap was unreasonably dangerous. The trial court denied the defendant’s motion for summary judgment.
They appealed. The appellate court explained that the fall happened in Statesboro. The apartment buildings were owned and operated by the defendant, who also constructed the complex back in 1975. The railing around the landing of the second floor was supported by balusters that had gaps between them wide enough for an adult to fall through them.
On the night of the accident, the plaintiff was walking home from a relative’s house when it began raining. He decided to stop by his cousin’s while waiting for the rain to stop. The cousin’s apartment was on the second floor of the defendant’s apartments, and the plaintiff had been there three times prior to his accident. While leaving, the plaintiff slipped by the railing and fell feet-first through the gap, and he hit the pavement below. He admitted that nothing had changed regarding the balusters between the three prior visits and the accident. Furthermore, nothing stopped anybody who was coming to or going from the apartment from seeing the rail and determining whether the huge gaps between the balusters were hazardous.
The defendant’s motion for summary judgment argued that the gaps were an open and obvious condition of which the plaintiff admitted he knew. Nonetheless, the judge denied the motion on the grounds that there was still a factual issue about whether the rail was open and obvious and whose knowledge of the danger was superior. On appeal, the defendant claimed the trial court made a mistake in denying the motion because the gaps constituted a static and open and obvious condition. The appellate court agreed, explaining there was a two-part test for deciding whether an invitee could recover damages after a Georgia slip and fall. The plaintiff needed to establish actual or constructive knowledge on the part of the defendant.
The plaintiff also needed to show he didn’t know about the hazard, even though he used ordinary care, because of the actions or conditions of the owner or occupier. In premises liability lawsuits, it’s not enough to simply show you fell. The basis for liability of a property owner is that he has superior knowledge of conditions that could expose someone invited onto the property to an unreasonable risk of harm. It’s only when the owner has knowledge of a hazard and the invitee doesn’t that liability is imposed. The appellate court also explained that static defects are handled differently, based on the authority provided in Hallberg v. Flat Creek Animal Clinic.
If somebody has successfully handled a supposedly dangerous and static condition before, he is presumed to know about it, and he can’t recover damages for an injury resulting later. In this case, the gaps were clearly visible and open and obvious. The plaintiff had been there before and knew the gaps were large. Although he showed the gaps violated building and safety codes, he didn’t show compliance was mandatory, so he should have failed on his negligence per se claim as well. The appellate court reversed.
Atlanta premises liability attorney Christopher Simon has considerable experience representing families who have lost their loved ones due to negligence and other wrongful conduct, and he is prepared to assist you with a possible claim. If you believe you have a possibly meritorious claim and would like to discuss the options you may have for legal recovery, feel free to contact us to arrange a free case consultation.