In a recent Georgia Court of Appeals decision, Perkins v. The Val D’Aosta Co., Case No. A10A0413 (Ga. Ct. App., July 9, 2010), the Court held that where the injured person had walked across the allegedly hazardous curb several times prior to falling, typically a fatal “prior traverse”, they were still able to take their case to the jury. This decision continues the recent Court of Appeals trend chipping away at the ability of trial judges to take away the plaintiff’s constitutional right to jury trial.
Remember that as we have discussed before on our slip and fall page, the basis for holding a property owner responsible is the information imbalance. If the property owner knows the property better than you do and there is a hazard present that hurts you, then you have a case. However, if you know the area, have walked over it previously or know the conditions for any reason before you fall, you have equal knowledge. Equal Knowledge is deadly to a Georgia slip and fall case; as it should be. Think about it; do we want people suing businesses when the injured person knew about the hazard before they tripped over it? People have to take responsibility for their own lack of care, plain and simple.
The prior traverse rule had grown up around that idea. The problem is, the insurance companies had stretched the rule over the years to prevent injured victims from ever seeing a jury where the victim had been in the area where they ultimately fell. With this most recent decision the Court continues to whittle away at the defense.
Here was the Court’s logic:
The Court said the question is whether the victim had specific knowledge about the danger despite having stepped off the curb 2 or 3 times before. Barton, 271 Ga. App. at 861.
The victim argued that the step down from the curb was hard to see because of low light and a lack of warning. The Court pointed to other appellate decisions holding that a pedestrian is not required to continually look for defects. Stephens v. Kroger Co., 236 Ga. App. 871, 873 (513 SE2d 22) (1999).”
Although I may not completely agree with their logic here, you must remember that all the Court is saying is, this issue should be decided by the jury, not the judge. If the defense cannot convince a jury that when the plaintiff walks over something 2-3 times successfully before falling, that the plaintiff should not recover, then I will be amazed.