It can be challenging for a plaintiff to pursue damages in an Atlanta premises liability lawsuit because the property owner or manager has more information about dangerous property conditions than does the plaintiff. However, the situation is analyzed differently if a plaintiff has previously encountered a potentially dangerous condition on the property. In a recent premises liability lawsuit, the plaintiffs appealed from a summary judgment order in a premises liability case. The case arose when the plaintiff and her daughter were shopping at the mall. The plaintiff went into the mall through an automatic revolving glass door. She left the mall through the same door to ask her husband a question. When she tried to come back through the same glass door, the door started to revolve before she could exit into the mall. Her head was slammed back into the portion of the glass door that stayed still. As a result of the collision, she suffered injuries to her neck, teeth, upper back and mouth.
Later, the mall’s long-term maintenance employee said that the door was inspected every morning and the inspection reports didn’t indicate defects or malfunctions. The mall’s surveillance footage showed the plaintiff running into the glass pane. Moreover, the mall’s incident report showed she’d walked into the side section of the door and not the actual door. The revolving door also had a testing system that was automated. It, too, did not detect a defect or malfunction in the door at the time of the accident. The mall’s operations director testified at deposition he couldn’t remember any prior accident involving that door.
The plaintiff and her husband sued the mall’s owner claiming premises liability, vicarious liability and negligence, among other causes of action. They found an expert to testify that the door was defective because no sign had been placed on the door to let visitors know there were moving glass parts. The manufacturer had recommended a warning to this effect be placed there. The expert’s opinion was that the failure to put up a warning sign led to the plaintiff’s distraction and rendered the door hazardous.
The defendant asked for summary judgment. It argued the plaintiffs’ claims were barred under the prior traversal doctrine. It also argued that there was no evidence the mall had actual or constructive notice of a dangerous property condition and there wasn’t any proof that the door was defective or had malfunctioned. The defendant also moved to leave out the testimony of the plaintiff’s expert witness, arguing it didn’t meet the legal requirements of OCGA section 24-7-702(b) or case law.
The lower court didn’t issue a ruling on the defendant’s motion to exclude the expert. After the hearing, the lower court granted summary judgment for the defendant on the grounds that the plaintiff’s lawsuit was barred by the prior traversal doctrine.
The appellate court disagreed with the plaintiffs’ positions. It explained that under section OCGA § 51-3-1, someone who owns or occupies land and expressly or implicitly invites others to come onto the property for a lawful purpose can be held accountable in damages to those injured by the owner’s failure to keep the property safe. The plaintiff would have to prove: (1) actual or constructive knowledge of the hazard; and (2) the plaintiff didn’t know about the danger in spite of using ordinary care because of conditions or actions within the owner’s control.
However, a plaintiff can’t recover damages if the evidence shows the plaintiff’s knowledge of the dangerous condition was the same or more than the defendant’s. Rather, a static condition like a revolving door is only dangerous where someone fails to see it and walks into it. When a situation involves a static condition like a revolving door and the invitee knows of the condition, there’s no duty on the proprietor’s part to provide a warning and there’s no liability for the injury that’s caused, since the invitee and proprietor have the same amount of knowledge.
Under Georgia’s prior traversal rule, if someone has successfully encountered a dangerous condition on a prior occasion, it’s presumed that she has the same knowledge of the danger that the owner has. In this case, the plaintiff had previously entered and exited through the revolving glass door twice before her accident. She understood how revolving glass doors worked. Accordingly, the lower court had appropriately determined her claim was prohibited under the prior traversal doctrine.
However, the lower court hadn’t adequately performed its duty to determine whether the plaintiff’s expert’s testimony was admissible. Under OCGA § 24-7-702(b) where specialized knowledge would help the court understand the evidence or determine a fact and other conditions are met, a qualified expert witness can testify in the form of an expert opinion. However, the appellate court concluded that since the prior traversal doctrine barred the plaintiff’s claims, it didn’t matter what the expert opined with regard to causality. It affirmed the lower court’s decision.
If you were injured because of a dangerous property condition at a mall or other establishment, you should call an Atlanta premises liability attorney right away to talk about whether you have grounds to recover damages through a lawsuit. Attorney Stephen M. Ozcomert has more than twenty years of experience representing accident victims in Atlanta. He handles lawsuits all through Georgia. Contact him at (404) 370-1000 or via our website.