The question before the Court, then, is whether Plaintiffs have presented enough evidence to discharge their burden regarding Macy's constructive knowledge of the hazard. "Constructive knowledge of a defect or hazard may be inferred when there is evidence that the defendant lacked a reasonable inspection procedure."Shepard v. Winn Dixie Stores, 527 S.E.2d 36, 38 (Ga. Ct. App. 1999); see also Ferguson v. Premier Homes, Inc., 695 S.E.2d 56, 59 (Ga. Ct. App. 2010) ("[W]here a latent or obscured defect exists. . . it will be inferred that the owner has constructive knowledge if a reasonable inspection—one required in the exercise of ordinary care-would have revealed the defect."). At the summary judgment stage, a defendant "must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident."
This duty requires an owner to "exercise [ ] ordinary care to protect the invitee from unreasonable risks of harm of which the premises owner has superior knowledge" and from "dangers foreseeable from the arrangement or use of the premises." Campbell v. Savannah Motors, Inc., 716 S.E.2d 534, 535 (Ga. Ct. App. 2011) (quoting Ferguson v. Premier Homes, Inc., 695 S.E.2d 56, 59 (Ga. Ct. App. 2010)). On the other hand, an owner is entitled to summary judgment if he "had no actual or constructive knowledge of the hazard or defect superior to that of the invitee," and he has "no duty to discover a defect which is not manifested until the incident causing injury."
In other words, an owner/occupier is generally on constructive notice of what a reasonable inspection conducted in the exercise of ordinary care would reveal. See Ferguson v. Premier Homes, Inc., 303 Ga. App. 614, 617, 695 S.E.2d 56 (2010) ; Hagadorn v. Prudential Ins. Co., 267 Ga. App. 143, 146, 598 S.E.2d 865 (2004). However, "one is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it."
Because Cook was working for SMG’s subcontractor, he "was an invitee to whom [SMG] owed a duty under OCGA § 51-3-1 to use ordinary care to keep the premises safe." Ferguson v. Premier Homes, 303 Ga. App. 614, 615 n. 1, 695 S.E.2d 56 (2010). Under that Code section, "[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1.
The duty imposed under OCGA § 51–3–1 does not make a premises owner an insurer of an invitee's safety—rather, it “requires the exercise of ordinary care to protect the invitee from unreasonable risks of harm of which the premises owner has superior knowledge.” Ferguson v. Premier Homes, Inc., 303 Ga.App. 614, 616, 695 S.E.2d 56 (2010); Robinson, 268 Ga. at 740, 493 S.E.2d 403. The owner/occupier is not required [under OCGA § 51–3–1] to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters.
See alsoKauffman v. Eastern Food & Gas, Inc., 246 Ga. App. 103, 105 (2) (539 SE2d 599) (2000) (owner has duty of ordinary care to protect invitee from unreasonable risk of harm where owner has superior knowledge and has duty to inspect premises for possible dangerous conditions of which owner does not have actual knowledge). But see Ferguson v. Premier Homes, Inc., 303 Ga. App. 614, 615 (695 SE2d 56) (2010) (where worker was injured when pull-down attic staircase detached from ceiling and fell, because there was no evidence of negligent construction or installation and because staircase complied with building codes, owner and builder of premises had no duty to inspect). Here, Patel testified that hotel owners should inspect guest rooms for hazards or defects that could cause injury. She stated that the hotel had a regular maintenance schedule, but that during her time as general manager, the grab bars were never tested to see if they could sustain a 300-pound load as provided by franchisor Wingate's operations manual.
But as our Supreme Court and this Court have cautioned time and again, this standard of ordinary care does not mean that an owner or occupier of land is an insurer of the safety of his invitee. See, e.g., Days Inns of America v. Matt, 265 Ga. 235, 235 ( 454 SE2d 507) (1995); Lau's Corp. v. Haskins, 261 Ga. 491, 492 (1) ( 405 SE2d 474) (1991); Ferguson v. Premier Homes, 303 Ga. App. 614, 616 ( 695 SE2d 56) (2010); Glynn-Brunswick Mem. Hosp. Auth. v. Benton, 303 Ga. App. 305, 307 ( 693 SE2d 566) (2010); Vega v. La Movida, Inc., 294 Ga. App. 311, 312 (1) (a) ( 670 SE2d 116) (2008). In light of our assumption that Buffalo's sponsored the party, we also assume for the sake of argument that Buffalo's is an "occupier" — as that term is used in OCGA § 51-3-1 — of the location at which the party occurred.
An owner or occupier, however, “is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it.” Johnson St. Props., LLC v. Clure, 805 S.E.2d 60, 65 (Ga. 2017) (quoting Ferguson v. Premier Homes, Inc., 695 S.E.2d 56, 59 (Ga.Ct.App. 2010) (internal quotation marks omitted)).
"[N]o constructive knowledge of an unknown defect is inferred if the defect could only have been discovered by an inspection requiring the exercise of extraordinary care." Ferguson v. Premier Homes, Inc., 303 Ga. App. 614, 617 (2010). Nevertheless, notice of the defect is presumed in cases of defective construction, including code violations.
See also Kauffman v. Eastern Food & Gas, Inc., 246 Ga.App. 103, 105(2), 539 S.E.2d 599 (2000) (owner has duty of ordinary care to protect invitee from unreasonable risk of harm where owner has superior knowledge and has duty to inspect premises for possible dangerous conditions of which owner does not have actual knowledge). But see Ferguson v. Premier Homes, Inc., 303 Ga.App. 614, 615, 695 S.E.2d 56 (2010) (where worker was injured when pull-down attic staircase detached from ceiling and fell, because there was no evidence of negligent construction or installation and because staircase complied with building codes, owner and builder of premises had no duty to inspect).Here, Patel testified that hotel owners should inspect guest rooms for hazards or defects that could cause injury. She stated that the hotel had a regular maintenance schedule, but that during her time as general manager, the grab bars were never tested to see if they could sustain a 300-pound load as provided by franchisor Wingate's operations manual.