Summary
affirming summary judgment because "[e]ven after Robinson, supra, in a premises liability action, a defendant can prevail on summary judgment for pointing to the absence of evidence as to an essential element of plaintiff's prima facie case"
Summary of this case from Smith v. Wal-Mart Stores, Inc.Opinion
A96A1919.
DECIDED JULY 31, 1998.
Slip and fall. Douglas Superior Court. Before Judge James.
Robert S. Windholz, for appellants.
Fain, Major Wiley, Thomas E. Brennan, John K. Miles, Jr., for appellee.
Jeannine C. Steele and Robert H. Steele sued Rosehaven Chapel, Inc. ("Rosehaven") for personal injuries and loss of consortium respectively due to Jeannine Steele's fall on the front entrance step of Rosehaven's funeral home. The Steeles appeal the trial court's grant of summary judgment in favor of Rosehaven.
Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491 ( 405 S.E.2d 474) (1991). Viewed in that light, the evidence was as follows. Jeannine Steele entered Rosehaven's funeral home through the front entrance walking up the steps which had a handrail. After spending less than one hour inside, Steele exited through the same door but proceeded to her left instead of going straight down the main stairs which she had previously traversed. Steele failed to see the single step down, allegedly incurring injuries as a result. At the time of her fall, the front steps leading straight up to the doorway had yellow identifying striping. However, the sole step leading out to the left side had no such striping and was not equipped with a handrail.
Steele relied on the testimony of Deborah Hyde, Ph.D., who used the 1988 Standard Building Code and the Life Safety Code which had been adopted by Douglas County to decide whether this step complied with building codes and minimum safety standards. Hyde opined that the placement of the single step with the lack of defined nosing (leading edge of a step), absence of a handrail, and the lack of a defining contrast in the composition of the brick pattern, created an inherently dangerous condition.
Although Rosehaven had not posted a warning sign cautioning about the step, it is undisputed that no one had previously fallen there. Steele admitted that she was not looking down because she incorrectly assumed that the ground was level and also admitted that she was not looking where she was walking because her attention was focused on her vehicle parked nearby. According to Steele, nothing obstructed her vision or prevented her from looking down had she chosen to do so. After determining that Steele failed to exercise ordinary care for her own safety and that she failed to offer any evidence that Rosehaven had superior knowledge of the alleged hazard, the trial court granted summary judgment. Held:
We have carefully reconsidered this case in light of Robinson v. Kroger Co., 268 Ga. 735 ( 493 S.E.2d 403) (1997). Although Steele contends that the existence of material issues of disputed fact preclude summary judgment, we disagree. Pretermitting any consideration of whether Steele failed to exercise reasonable care for her own safety, we find that Rosehaven was entitled to summary judgment because Steele failed to show it had superior knowledge of the alleged hazard.
The Supreme Court vacated Steele v. Rosehaven Chapel,, 223 Ga. App. 523 ( 478 S.E.2d 596) (1996) in light of its Robinson decision.
In order to recover for her injuries allegedly sustained due to an allegedly hazardous condition, Steele had to show fault on the part of Rosehaven and her own ignorance of the danger. Steinberger v. Barwick Pharmacy, Inc., 213 Ga. App. 122, 123 (1) ( 444 S.E.2d 341) (1994). This she failed to do. Proof of nothing more than the occurrence of a fall is not sufficient to establish negligence or to give rise to liability. Wilson v. Duncan, 211 Ga. App. 814, 815 ( 440 S.E.2d 550) (1994). It is axiomatic that "[i]n everyday life, persons are required to negotiate the floors, steps and doorways of buildings." Steinberger, 213 Ga. App. at 124 (1).
The brick step at issue was not crumbling or in disrepair or icy or wet. Nor was it poorly lit or obscured by an object from view. This single brick step just outside Rosehaven's main double glass doors was a permanent static condition not a transient foreign substance. Although Steele contends that Rosehaven's failure to provide a handrail or striping on the step, violated local codes, and established negligence per se, the building code at issue merely suggested but did not require striping or a handrail. Steinberger, 213 Ga. at 125 (2).
Steele offered no evidence that either striping or a handrail were mandated by law in this situation. The safety code section at issue provides, "A contrasting stripe on each stepping surface may be provided at the nosing or leading edge. . . . " Life Safety Code A-5.1.6.2. (Emphasis supplied.)
It has long been the position of this Court that `[t]he mere existence or maintenance of a difference in floor levels or of steps in a business building does not constitute negligence.' [Cits.]" Wilson, 211 Ga. App. 814. Here, it is undisputed that no one else had ever previously fallen on that step despite the continuous use of that entrance for several years.
Even after Robinson, supra, in a premises liability action, a defendant can prevail on summary judgment by pointing to the absence of evidence as to an essential element of a plaintiff's prima facie case. Robinson, 268 Ga. at 748-749 (2) (b); see Alterman Foods v. Ligon, 246 Ga. 620, 623 ( 272 S.E.2d 327) (1980). Here, Steele failed to show that Rosehaven had superior knowledge of the alleged hazard, even assuming solely for the sake of argument only that the step was somehow defective. Haskins v. Piggly Wiggly Southern, Inc., 230 Ga. App. 350, 352 ( 496 S.E.2d 471) (1998). For this reason, Rosehaven was entitled to summary judgment as a matter of law. Winn-Dixie Stores v. Carroll, 212 Ga. App. 234 ( 441 S.E.2d 432) (1994) (failure to satisfy either prong of the Alterman test warrants summary judgment) (case questioned on other grounds in Robinson, 268 Ga. at 738); see Souder v. Atlanta Family Restaurants, Inc., 210 Ga. App. 291, 292 (2) ( 435 S.E.2d 764) (1993).
Judgment affirmed. Beasley and Blackburn, JJ., concur.