Because we are known to handle a lot of slip and fall claims in the Atlanta area, we get frequent calls from people with fractured ankles, concussions and compression fractures.My clients are generally conservative Georgians who would not ordinarily think of filing a claim, much less calling a lawyer. Suddenly they find themselves looking at an unwelcome surgery. Most folks don’t want to make a claim if they are reaching, they just want to know what their rights are. This is especially true when the way the fall happened was preventable had the owner been paying attention and taking care of business.
So, the question arises; what are you rights when you seriously hurt yourself in a slip and fall? If it is just a mildly sprained ankle or something equally minor, use common sense and don’t make a big deal out of it. Stuff happens, move on. On the other hand, if you broke a bone and it was not your own fault, a thinking person will make a further inquiry into their rights.
Slip and fall laws in Georgia make more sense than most people think. The first thing the law says is that the reason you are on the property controls the duties the landowner owes you. If you are trespassing, you have very few rights. If you were invited onto the property for the benefit of the landowner, which is the case with shopping malls. grocery stores and restaurants, then the landlord owes you the duty of ordinary reasonable care to keep the premises safe from hazards.
The second important issue is; what did you slip or trip on? The law treats different causes in very distinct ways. For the purposes of this discussion, we will assume that the slip and fall was caused by some foreign substance, such as water, ice, or oil (as opposed to a condition inherent to the property, like a raised floor tile in a restaurant or a pothole in a parking lot, generally referred to as “static conditions”).
The Law flows from two places, code sections which are voted on by the Georgia legislature and from stare decisis, over 200 years of appellate judicial decisions that make up the collective wisdom of the bench in interpreting the law in certain factual circumstances.
Starting Point: Section 51-3-1 of the Georgia Code states that, “[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.”
If you’re confused by what that means, you’re not alone. Courts have struggled for many years with what “ordinary care” means. In the context of slip and fall, as with other areas of law, Georgia appellate courts have created tests that try to bring more clarity to what the statute means.
The test that courts have created for slip and fall with respect to foreign substances compares the knowledge of the injured party (called the “Plaintiff”) to the knowledge of the landowner or occupier (who we’ll refer to as “Landowner” hereafter). If Landowner had more knowledge of the substance that caused the slip and fall than Plaintiff did, the general idea is that Plaintiff should be able to recover his or her damages caused by the fall. However, it’s not as simple as it sounds. Courts had to further create tests for accurately and objectively comparing the knowledge of the two parties.
Why is this fair you may ask? Well, Georgia law does not say that people have to be perfect (except for common carriers of people like buses and escalators). What is asks us to do as business people is to look out for the customer. If we know the fridge on aisle 2 has a habit of leaking, get it fixed or put out warning cones. Let the customer know what they don’t know. That is the essence of the duty in Georgia
To prove that Landowner knew more than Plaintiff, Plaintiff must show that (1) Landowner had actual knowledge (no surprises here, just need evidence to show that Landowner had observed the foreign substance) OR constructive knowledge (should have known about it if using ordinary care.
Stores rarely will admit they actually knew about the problem, so most cases revolve around the question of constructive knowledge.
This can be a little more complicated, as constructive knowledge is inferred by the court if Landowner puts forth no evidence of a “reasonable” inspection procedure to comply with its statutory duty quoted above) and (2) that, despite the exercise of ordinary care, Plaintiff lacked knowledge of the hazard due to actions or conditions within the Landowner’s control.
What the hell does that mean, right? Here is the deal; when slip and fall cases are filed, the defense lawyers know that many of these claims can be thrown out on summary judgment in Georgia. The best defense they have is to argue that the store did its job an inspected the aisles very 15-20 minutes and therefore the spill you fell on must have happened in that window of time. If the store shows the judge the logs of these inspections, the judge has no choice but to throw the case out. Just because junior spilled milk ten minutes prior and you fell in it, does not mean the store is responsible for you being hurt. Georgia law only requires that the store do a good job keeping the ground safe, not a perfect job.
Examples: Let’s see how these principles play out in a few real cases. Note that in the following cases, the parties are at the Georgia Appeals Court level, and the cases are at the Summary Judgment stage of litigation, where the Landowner is trying to get a judge to go ahead and decide the case because Landowner contends that the law so clearly favors his position that there is no jury question.
(1) In the case of Kennestone Hospital, A deliveryman and his wife brought a personal injury suit against a hospital after the deliveryman slipped and fell while making a delivery. When the deliveryman stepped onto a loading dock, he stepped on one or more loose telephone books. Plaintiff had to first show that the hospital had either actual or constructive knowledge of the presence of the phone books on the loading dock. Since there was no evidence that any employee or agent of the hospital had actually seen the phone books, Plaintiff sought to show constructive knowledge of the hazard on the part of the hospital. Since no evidence of any inspection procedure on the day of Plaintiff’s fall was put forth, the court held that a jury would have to resolve the question of whether the hospital had breached its duty of reasonable care.
That just means that the case won’t be thrown out on summary judgment. We don’t know what the jury actually decided.
Also, the hospital had not shown that the Plaintiff’s knowledge of the hazard was equal or superior to that of the hospital. Plaintiff testified that he had never seen loose telephone books there. Whether the deliveryman had been negligent in not watching where he placed his foot was for the jury to resolve. Plaintiff here survived Summary Judgment and went on to get his day in Court.
(2) In Prescott, Plaintiff slipped and fell on a wet substance in a mall owned by Colonial. Landowner put forth no evidence of an inspection procedure, so constructive knowledge was inferred on the part of Landowner. There was no evidence that Plaintiff was aware of the presence of the wet substance, so Plaintiff here also survived Summary Judgment.
(3) In Davis, Plaintiff slipped on a puddle of clear liquid that was the size of a small dinner plate as she walked down the center aisle of the store. She survived Summary Judgment based on the fact that, although Landowner put forth evidence of an inspection procedure, there was still a jury question as to the reasonableness of the inspection procedure (in addition to the fact that the affidavit in support of the inspection procedure was flawed because the Landowner’s employee did not state that he had personal knowledge that the inspection procedure had been carried out on the day of Plaintiff’s fall). Also, Landowner’s argument that Plaintiff had not exercised reasonable care failed because the Georgia Supreme Court has rejected any requirement that an invitee look continuously at the floor for defects, holding that the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.
Important Points to Remember:
(1) Defendants (typically Landowners) in slip and fall cases usually seek Summary Judgment, and most recorded slip and fall cases are at the Summary Judgment stage, so we tend to look at slip and fall cases from the perspective of what would likely happen at Summary Judgment.
(2) The case needs to be capable of surviving Summary Judgment to have a likely prospect of settlement, and it would clearly have to survive SJ to ever get to a jury.
(3) Notwithstanding the last two points, cases do go all the way to trial, and often this is where larger damage recoveries occur. That said, it should be clear to the jury that were they walking in your shoes they would think the store could have prevented the fall by taking care of business.
Unfortunately, there is no easy answer for whether or not you can succeed on a slip and fall claim without seeking legal counsel. A Plaintiff must show both knowledge (either actual or constructive) on the part of the Landowner AND that he or she did not learn of the hazard, despite exercising reasonable care. Easy cases for Landowner are those where a “reasonable” inspection procedure (perhaps mirroring an inspection procedure already found reasonable by a court hearing a case involving a similarly situated landowner) was in place and actually followed on the day Plaintiff was injured, coupled with evidence (such as Plaintiff’s own testimony) that Plaintiff knew of the specific hazard that caused injury. Good cases for Plaintiff are situations in which Landowner had no inspection procedure or did not follow it on the day of the fall and where Plaintiff had no knowledge of the hazard.
Please feel free to call us to discuss your particular facts if you have questions
Christopher Simon Attorney at Law
3535 Piedmont Road
Building 14, Suite 410
Atlanta GA 30305