Property owners and their insureds take note: a Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building.

In Duff v. Bd. Of Regents of the Univ. Sys. Of Georgia, (hereafter, the “Trial Court Order”), the Plaintiff, a student at Georgia Perimeter College (“GPC”), exited a classroom and slipped and fell on rainwater tracked in by hundreds of students entering the building. It was undisputed that it had not been raining when Plaintiff first entered the building or that she had seen any rain on the floor on her way to class.

the Plaintiff testified that she slipped on “standing water,” but could not describe the depth, width, or quantity of water. She also testified that her clothing was wet when she got up.  A professor who assisted her after the fall testified that Plaintiff fell on a very thin layer of water analogous to the amount of water left after you take “a wet paper towel and wiped it across a surface.” The professor also testified that at the time she fell, students were standing outside of the classroom waiting to get in wearing wet clothes and carrying dripping umbrellas.

The trial court granted GPC’s motion for summary judgment, relying on Georgia precedent that rainwater is not in and of itself a hazardous condition unless plaintiff can demonstrate that there is an “unreasonable accumulation of water.”  Relying on a 2013 Court of Appeals’ case (Season All Flower Shop, Inc. v. Rorie, 323 Ga. App. 529), the trial court also held that summary judgment was appropriate even though the Plaintiff fell in an interior hallway as opposed to an entrance. Specifically, quoting the Appeals Court in Season All Flower, the trial court held that “‘water is apt to be found in any area frequented by people coming in from the rain outside, and not just at the ‘threshold’ of an entrance door.’” 

In a decision that must not be taken lightly by property owners and their insureds, the Court of Appeals reversed. The Court held that Plaintiff’s self-serving testimony regarding “standing water” (despite her inability to describe the dimensions of that water) created a question of fact and precluded summary judgment. Relying on Dickerson v. Guest Svcs. Co., 282 Ga. 771 (2007), the Court of Appeals wrote that although it is “common knowledge that the ground outside gets wet on rainy days, it cannot properly be applied to a portion of an interior space where [people] have no reason to expect water to accumulate on the floor.”

Our insured property owners and managers must take note of the Court of Appeals’ decision in Duff, as it appears to create a duty to continuously monitor during rain, particularly in buildings with heavy foot traffic. As the trial court warned, “[a] departure from the rainy day case law here [could] result in premises owners having to ‘continuously mop during a shower’ each time it rains simply because it is possible that one [person] does not know it is raining outside. This result would essentially eviscerate the protections that are afforded to premises owners on rainy days.” 

At the very least, the Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building, regardless of whether management places mats at the entrance. It all comes down to location. Business owners may feel pretty confident in his/her chances of getting out on a motion for summary judgment when a plaintiff’s slip and fall occurs at the entrance of the premises on a rainy day.  However, after Duff, plaintiffs will have an easier time creating a question of fact when they slip and fall on rain tracked into the interior of the building, which would preclude summary judgment.

The Court of Appeals recently reversed a trial court’s ruling granting summary judgment on the grounds that a question of material fact existed where defendant-church may have “set the stage” for the accident. In Henderson v. St. Paul Baptist Church, 328 Ga. App 123 (2014), Plaintiff, a visitor of St. Paul Baptist Church fell into a hole while walking from her car to the Church and suffered a fractured leg. Despite Plaintiff’s knowledge that cars were typically parked across the street (though there was no designated parking lot), she and her husband parked beside the Church property: The Church’s pastor motioned for them to park there, behind his own vehicle. In walking towards the church building, Plaintiff chose to take a shortcut and enter through the side entrance. The ground between her car and the entrance was completely covered with pine straw, covering the hole in which she fell.

The trial court granted summary judgment in favor of the Church based on the voluntary departure rule, i.e., the guest deviated from the designated route to the front of the Church and therefore, did not exercise ordinary care for her own safety. However, the appellate court reversed, holding: 1) The pastor who invited them to park behind his own car knew of the hole covered by pine straw but nevertheless, invited them to park there, and 2) The entire area between Plaintiff’s car and the side entrance to the Church was covered by pine straw, leaving her with no other choice but to walk on it. More specifically, the appellate court pointed out that the Plaintiff had satisfied her burden of proving that the Church had actual knowledge of the hole, and thus, the burden shifted to the Church to show that the injury was caused by the Plaintiff’s own negligence. The Church presented evidence that Plaintiff took a shortcut rather than the prescribed route to the front of the building, shifting the burden back to Plaintiff to raise a question as to whether her negligence resulted from the Defendant’s actions.

The Court of Appeals concluded that the pastor’s invitation to Plaintiff and her husband to park closest to the side entrance of the building with knowledge of the hole, as well as the fact that the entire area was covered in pine straw, raised a sufficient question of fact to defeat summary judgment. Analogizing to a case in which a hotel guest suffered injury after walking down uneven steps from a side entrance with a sign that was not illuminated properly, the Court concluded that there may be some evidence that the Church “set the stage” for this accident.

The take-away: property owners should be aware that even when there is evidence of plaintiff’s own negligence, such as deviation from a prescribed path, defendants may still need to prove that they did not set the stage, i.e., in some way entice the guest to the hazard.

In the recent case Pirkle v. QuikTrip Corp., 2014 Ga. App. Lexis 34, the Court of Appeals upheld summary judgment in favor of the Defendant QuikTrip on the grounds that Plaintiff’s evidence of the Defendant’s actual or constructive knowledge of liquid on the floor was speculative at best.

In this case, Plaintiff, Carlos Pirkle, claimed that he slipped and fell on water located next to the checkout counter of the store. Plaintiff’s evidence as to QuikTrip’s actual knowledge of the liquid consisted of witness testimony stating (1) that a store employee placed a bucket and mop to the right side of the checkout counter shortly before Pirkle’s fall, and (2) that another customer had dropped a package of bottled water near the area where Pirkle fell shortly before the incident. However, there were no reports of any spills or liquid on the floor prior to Pirkle’s fall and Plaintiff even testified that he did not recall seeing any water in the area of his fall when he entered the store. The video from QuikTrip’s security camera showed Pirkle walk into the store and several other customers walk in the same area where Pirkle’s fall occurred.

The Court held that Plaintiff’s evidence was speculative, at best, as to what caused Pirkle’s fall and, therefore, did not establish actual knowledge. To rebut Plaintiff’s claims as to constructive notice, QuikTrip produced inspection logs which showed that an employee performed an inspection of the floors every 30 minutes, one having been performed in the specific area of Pirkle’s fall just 8 minutes prior to the incident. The Court held that where the property owner can prove that an inspection occurred “within a brief period” before an invitee’s fall, the inspection procedure will be deemed adequate and reasonable.

The defense of this case was helped in large part by the maintenance of routine inspection records and video surveillance. We should continue to advise our property owner clients of the importance of maintaining such records and how doing so can defeat a plaintiff’s claim that the owner had knowledge of a dangerous condition.