Summary Judgment in Rainy Day Slip and Falls May be a Thing of The Past

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.

Landlord not Liable for Deck Collapse at Rental Home

In Aldredge v. Byrd, No. A17A0281, 2017 WL 1180469 (Ga. Ct. App. Mar. 30, 2017) the Georgia Court of Appeals held that a landlord was not liable for the collapse of a deck on his rental property.  The renters hosted a barbeque in the house they were renting from the landlord, Aldredge.  The injured renters and guests sued Aldredge for money damages.

Over twenty (20) years prior to the incident, Aldredge had hired a carpenter to remove the existing back deck and build a new one.  Aldredge did not supervise the building of the deck, but he was aware that the carpenter had attached the deck to the house using nails and nut bolts.

Around the time he rented the property to the plaintiffs, Aldredge replaced several deck boards, inspected the deck and did not notice any rot or defects. The renters and their guests were injured when the deck broke away from the house and fell to the ground, because the joist that attached the deck to the house was rotten and damaged.  Aldredge inspected the deck after it collapsed, and noticed that the joist appeared to have rotted.

Aldredge moved for summary judgment, stating that there was no evidence that the deck collapsed because of faulty construction, and no evidence that he knew that the premises was in need of repair.   The trial court denied the motion, holding that an issue of fact existed as to whether Aldredge had constructive knowledge (he should have known) that there was a need for repair and failed to do so.

Aldredge appealed the denial, and the Court of Appeals reversed the trial court’s ruling, dismissing the claims against Aldredge.  The Court held that, pursuant to O.C.G.A. § 44-7-14, Aldredge, as an out-of-possession landlord could only be liable for a third party’s damages that resulted either from faulty construction of the premises or from his failure to repair the premises. The record reflected that Aldredge had no role in the construction of the deck.  Additionally, during the time they were living there, plaintiffs did not inform Aldredge that any maintenance needed to be done on the deck.  The Court found that plaintiffs had failed to present any evidence that Aldredge had actual or constructive knowledge that the deck was in need of repair.

As the Court held, landlords are not insurers of their tenants’ safety, and liability only arises where the landlord is on notice of a defect and therefore the necessity for repair.  Aldredge follows a line of cases which protect out-of-possession landlords from liability except in limited circumstances.   Once landlords have fully parted with possession and the right of possession of premises they own, courts do not want to hold them to the higher standards required of landowners who live on the property.   Instead, the responsibility is on the on-site renter to keep the landlord informed about the need for repairs.

No Pre-Suit Notice Required to Sue Cities for Intentional Acts

In West v. City of Albany, 2017 WL 875033 (Ga. March 6, 2017), the Georgia Supreme Court addressed whether an injured party was required to provide notice of intent to sue a city when the alleged wrongdoing was intentional rather than negligent. In an historic decision, the Court unanimously held that the ante litem (pre-suit) notice required for bringing suit against a municipality applies only to allegations of negligence, not to intentional acts.

The case involved a lawsuit against the City of Albany by an individual who claimed to have been fired pursuant to the Georgia Whistleblower’s Act (O.C.G.A. § 45-1-4). The plaintiff, Ms. West, sued the city for money damages, alleging that she had been the victim of retaliation after she reported financial irregularities in the city’s utility department.

The City of Albany moved to dismiss the lawsuit because Ms. West failed to comply with the pre-suit requirements set forth in O.C.G.A. § 36-33-5 (b). In pertinent part, the statute requires that “[W]ithin six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating…the negligence which caused the injury.” The Court held that the six month pre-suit requirement does not apply to whistleblower cases, because a clear reading of the statute limits the notice prerequisite to negligence cases.

The holding in West is significant because historically, Georgia courts have applied this municipal six month pre-suit notice to claims alleging both negligent and intentional acts. In West, the Court held that the “statute’s plain language demonstrates it applies only to damages caused by negligence, not intentional acts.”

One of the purposes of the ante litem statute is to preserve public funds by limiting municipal exposure for monetary damages. Now that the Court has narrowly interpreted the statute, the Georgia legislature may move to amend O.C.G.A. § 36-33-5 (b) to comport with the manner in which it has long been interpreted: requiring notice for allegations of both negligent and intentional wrongdoing. Otherwise, going forward, plaintiffs need only provide the statutory ante litem notice to municipalities for allegations of negligence.

Negligent Entrustment Despite a Clean Pre-Employment Background Check ?

In Cullara v. Building & Earth Sciences, Inc., Case No. A16A1735 (Ga. Ct. App., Dec. 8, 2016), the Georgia Court of Appeals seems to raise as many questions as it answers concerning an employer’s duty to investigate an employee before entrusting the employee with a company vehicle. In this case, a prospective employee at Building & Earth Sciences (“BES”) stated in his application that his criminal history consisted of only a prior conviction for possession of cocaine. BES did a background check on the employee, including his employment history, credit history, Social Security information, criminal history, and motor vehicle record. His driving record was clean, and the federal criminal history showed no convictions. One Saturday, a few months after the employee was hired, his supervisor allowed him to borrow a company truck to move a personal item to the employee’s new home. Several beers later, the employee collided with Plaintiff. The employee pled guilty to DUI.

The ensuing lawsuit included a claim against BES for negligent entrustment. In his deposition, the employee gave inconsistent testimony concerning an interview he had with BES prior to being hired. He testified again and again that he could not remember whether he told GES in the interview anything about his criminal history other than the cocaine conviction and a DUI conviction in 2002. He did have several prior DUI convictions, however, and in other parts of his deposition, he testified that he told the GES interviewers about all of his criminal history, including the prior DUIs. The trial court granted BES’s Motion for Summary Judgment, based on a finding that the employee reported only the prior cocaine conviction and the one prior DUI, and that such evidence was insufficient to support a claim of negligent entrustment. The Court of Appeals reversed, ruling the trial court improperly failed to consider the contrary evidence in the light most favorable to the plaintiff, the non-movant. The Court also rejected BES’s argument that an employer could rely solely on an investigation into an employee’s criminal history and driving record.

Given the conflicting evidence concerning the employer’s knowledge of the employee’s habitual recklessness, the Court’s decision is not surprising. The opinion, however, raises other unanswered questions. First, although the plaintiff also argued the trial court “failed to consider whether BES voluntarily assumed a duty to investigate the former employee’s driving background,” the Court reversed summary judgment only on the basis that there was an issue of fact concerning the employer’s knowledge of the multiple prior DUI convictions. The Court discussed neither the duty to investigate nor the sufficiency of any such investigation. The Court did give hints that the employer’s investigation fell short, however, pointing out the motor vehicle report “searched only for violations in the preceding three years,” and by dropping a footnote that said, while the employer conducted a federal criminal search on the employee, “[t]here is no explanation why BES did not order a state criminal background report.” Second, the Court leaves unexplained its statement that “the issue is whether BES knew or should have known that [the employee] was a high risk driver.” (Emphasis added.) This statement flatly contradicts established law and the Court’s own prior statement in the same case that to prove negligent entrustment, the plaintiff must show that the vehicle owner entrusted the vehicle to another “with actual knowledge that the driver is incompetent or habitually reckless.” (Emphasis added.) Can it be assumed that the Court’s inclusion of constructive knowledge is an inadvertent misstatement of the law on negligent entrustment, or is the Court attempting to establish an employer’s duty to investigate potential employees’ driving records?

What should business owners do before allowing employees to drive company vehicles? If you do a background check, do a thorough job. Get both the federal and state criminal records, and get a seven-year motor vehicle record, not just a three-year. Document any pre-hire interviews. You will not only increase your chances of getting summary judgment in claims of negligent entrustment, you will potentially keep an unsafe driver off the roads.