It can be challenging to establish that an owner knew or should have known about a dangerous property condition in an Atlanta premises liability lawsuit. Often a property owner brings a motion for summary judgment, claiming there are no triable issues of fact. If you were injured in a trip and fall, it is very important to retain an experienced attorney who can help you obtain the damages to which you’re entitled. Recently, in a Georgia appellate case, the court considered whether summary judgment was appropriate to resolve a trip and fall case in which the plaintiff was injured when she tripped over a root in a dirt patch by the defendant’s parking lot.
The plaintiff worked five minutes from the defendant’s restaurant. Every few weeks, she walked to the restaurant for lunch. In order to get there, she and other pedestrians traveled across a dirt patch that allowed her to avoid the driveway of the parking lot.
On one of her walks to the restaurant, she tripped on a root that was sticking out of the dirt patch; she fell and injured two leg bones. The root was sticking about two inches from the ground and attached on one end. When she fell, the root was protruding around 2 inches from the ground. The end of the root had broken and was above the ground. A landscaping crew had not seen the root in that condition four days prior when it had been inspecting the dirt patch for hazards.
The plaintiff brought a premises liability suit against the owner. The owner brought a summary judgment motion. It argued the evidence showed that the plaintiff had traveled over the dirt patch many times before and that she couldn’t show the owner had superior knowledge of the root, which was a natural growth. The lower court denied the motion. The defendant appealed.
The appellate court explained that customers who are trying to obtain damages in a trip and fall lawsuit need to show: (1) the defendant knew or had reason to know of a danger and (2) the plaintiff didn’t know of the danger in spite of using ordinary care because of conditions or actions within the owner’s control.
On appeal, the defendant argued that a plaintiff who had previously encountered an unmoving defect was presumed to know about it. However, the appellate court reasoned, a plaintiff must have successfully dealt with the particular dangerous condition on a prior occasion, not just the area where it was located. In this case, the evidence showed the root had only become dangerous in the four days before the fall. Therefore, the jury could determine the reason the crew didn’t notice the root was because it wasn’t broken and protruding from the ground just four days before. There also wasn’t evidence that the plaintiff had traveled over that dirt patch in the four-day period prior to the fall.
The court found that there was a genuine factual issue about whether she’d previously encountered that particular danger before. Simply walking near the root wouldn’t stop her from recovering damages.
The appellate court also found that there was a genuine factual issue about the owner’s constructive knowledge. Constructive knowledge can be established by showing the defendant’s employee was in the immediate location of the fall and had a chance to fix the dangerous condition before the fall, or the dangerous condition was present for long enough it should have been found and removed had the owner used reasonable care to inspect the property. In this case, the evidence would allow a jury to determine the defendant had no reasonable procedure to inspect the dirt patch for dangers.
The appellate court further reasoned that the fact a dangerous condition occurred naturally didn’t take away the property owner’s obligation to use reasonable care to inspect the property.
The appellate court affirmed the judgment.
If you were injured because of a trip and fall on someone else’s property in or around Atlanta, you could have a claim for damages. It’s important to discuss your case with a seasoned premises liability attorney as soon as possible. Stephen M. Ozcomert has represented injured people in Atlanta and throughout Georgia for more than twenty years. Contact us at (404) 370-1000 or complete our website form.