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WRIGHT v. JDN STRUCTURED FINANCE, INC.

Court of Appeals of Georgia1999-06-28No. A99A1538
239 Ga. App. 685522 S.E.2d 4

Summary

Holding. The court affirmed the trial court's grant of summary judgment to JDN, concluding that Wright failed to establish the owner's negligence because the curb or planter constituted an obvious static defect that a person exercising ordinary care should have avoided.

Carolyn Wright fell while walking in a shopping area owned by JDN Structured Finance after tripping on a yellow-painted curb or a brick planter. Wright claimed her view was blocked by overgrown shrubs, but her own deposition testimony contradicted her later affidavit by establishing that she tripped on the curb, not the planter. The trial court granted summary judgment to JDN, finding no genuine dispute of material fact.

The appellate court affirmed, holding that Wright failed to establish negligence on JDN's part. Under applicable law, a property owner's liability for a static defect depends on whether the invitee lacked knowledge of the hazard. Since Wright either knew or reasonably should have known about the curb as an ordinary hazard of walking in public spaces, she bore equal responsibility for observing and avoiding it. The curb and planter were both open and obvious conditions requiring no special warning.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a property owner owes a duty to warn of or protect against obvious static defects on premises open to the public
  • Application of the comparative knowledge standard in premises liability when an invitee knows or should know of a hazard
  • Treatment of self-contradictory testimony at summary judgment when no reasonable explanation is offered

Procedural posture

Wright appealed the trial court's grant of summary judgment in favor of JDN in a premises liability action arising from a trip-and-fall incident.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Blackburn, Presiding Judge.

Carolyn R. Wright appeals the trial court’s order granting summary judgment to the defendant, JDN Structured Finance, Inc. (JDN), in the underlying, static defect trip and fall case. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

(Punctuation omitted.) Parker v. Welborn, 236 Ga. App. 344 (511 SE2d 917) (1999).

Wright contends that as she was walking toward a store in the defendant’s shopping area, she lost her footing when she tripped on the high curb to the sidewalk and then she stepped onto the comer of a low brick planter which caused her to fall to the ground and suffer injuries. She contends that her view of the planter was obstructed by overgrown shrubs. Her deposition testimony makes it clear, however, that her action in tripping over the curb is what set the incident in motion. The curb on which Wright tripped was painted yellow. Wright’s affidavit that she tripped over a planter and not the curb is not sufficient to create a genuine issue of material fact because this statement conflicts, without explanation, with her deposition in which she testified on at least six separate instances that she tripped on the curb or “curve.”

1. On motion for summary judgment a party’s self-conflicting testimony is to be construed against her unless a reasonable explanation for the contradiction is offered. Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383) (1987); Prophecy Corp. v. Charles Rossi-gnol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). As Wright offered no explanation for the contradiction between her affidavit and deposition testimony, the trial court was required to “eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.” (Punctuation omitted.) Gentile, supra at 583.

In the present case, application of this rule does not change our primary analysis because whether Wright tripped over a planter or the curb, both obstacles are static conditions.

2. JDN contends that Wright failed to exercise reasonable care for her own safety to avoid the static conditions on its property.

In order for [Wright] to recover, two elements must exist: (1) fault on the part of the owner, [JDN], and (2) ignorance of the danger on the part of the invitee, [Wright]. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then[,] by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. Under the conditions here set out, a person acting in the exercise of ordinary care for [her] own safety should have been aware that such a hazard to walking up onto a curbed sidewalk would be likely to exist, and should have accordingly exercised ordinary care to avoid it. Her means of knowledge being equal with that of [JDN], it follows that she has failed to show a right of recovery based upon the acts of negligence alleged.

(Punctuation omitted.) Warnke v. Pace Membership Warehouse, 215 Ga. App. 33, 34 (449 SE2d 629) (1994).

Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel.

Decided June 28, 1999

Reconsideration denied August 20, 1999

Blackmon & Dudley, Nathaniel H. Blackmon III, for appellant.

Carolyn Wright, pro se.

Webb, Carlock, Copeland, Semler & Stair, Edward A. Miller, Jerome B. McNally, for appellee.

(Punctuation omitted.) Tanner v. Larango, 232 Ga. App. 599, 600 (2) (502 SE2d 516) (1998).

The ultimate issue is whether [JDN] was negligent in maintaining a hazardous condition on the property [,] and in everyday life, persons are required to negotiate floors, steps and doorways. Even if the curbed sidewalk was hazardous as [Wright] asserts, the condition was open and obvious, and thus, in the exercise of ordinary care, she could have avoided it. There is no duty to warn of the obvious.

(Citations and punctuation omitted.) Warnke, supra at 34.

Contrary to Wright’s argument, the trial court did not err in granting JDN’s motion for summary judgment based on Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Summary judgment was proper because Wright’s act of tripping on the yellow-painted curb or a planter constituted voluntary negligence on her part. See id. at 737. See also Tanner, supra at 600-601.

Judgment affirmed.

Barnes and Ellington, JJ, concur.