In the standard slip-and-fall case, a central dispute often concerns the condition of the floor at the time of the fall. Generally, defendants will put forth evidence to establish that the floor was in a safe condition. In response, a plaintiff will testify to seeing a substance or some defect on the ground to establish an unsafe condition.
When this competing evidence exists, courts will typically find there is a genuine issue of material fact as to the condition of the floor and leave the issue for resolution by the jury. However, there are instances when a plaintiff does not happen to see something on the ground or doesn’t have the opportunity to do so because of disorientation. Is this gap in testimony fatal to a claim’s viability?
In a recent opinion, the Georgia Court of Appeals reminded us of the answer: no.
The plaintiff, an 88-year-old woman, was accompanying her husband as he was being transferred from an ambulance to the nursing home facility. As emergency medical technicians were wheeling her husband’s stretcher down a hallway, the plaintiff was trying to keep up. Three employees of the facility were present at the time, and two testified that they saw the plaintiff using a cane, moving quickly, leaning forward, and rushing. One testified that the plaintiff was offered a wheelchair but did not respond to the offer and continued walking. When the plaintiff reached the part of the hallway that is situated outside the facility’s shower room, she fell. The plaintiff testified that she was knocked unconscious by the fall and did not recall anything until she was being attended to later. The plaintiff further testified that she did not know the cause of her fall except for the fact she remembered “stepping on something slick.” The plaintiff’s son testified that he was in the parking lot when he heard that his mother had fallen and that when he got inside and knelt next to her, he felt his knee get wet and saw a clear substance next to her, which an employee was cleaning up.
The employees at the facility all testified that the area where the fall occurred was dry and clean at the time of the accident, but several of them acknowledged that it was not uncommon for this area of the hallway to be wet on occasion, given that it's located outside the shower room. The employees testified that no shower had been yet been given on the day of the fall, but some of this testimony drew attention to the fact that showers are not uniform or regularly scheduled. The plaintiff sustained injuries as a result of the fall and brought suit against the nursing home. At the conclusion of discovery, the nursing home made several motions, including one for summary judgment, which the trial court granted. In its order granting the motion, the trial court noted that the plaintiff had not put forth sufficient evidence to demonstrate either the existence of a hazardous condition or the nursing home’s constructive knowledge of any potential hazard. The plaintiff appealed.
Notwithstanding the hole in the plaintiff’s recollection of her fall, the Georgia Court of Appeals found that the trial court's dismissal was improper and reversed. Georgia law provides that when the “owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises . . . , he is liable in damages to such persons for injuries caused by . . . failure to exercise ordinary care in keeping the premises and approaches safe.” O.C.G.A. § 51-3-1
. In the slip-and-fall context, the test has been refined to two essential elements a plaintiff must prove: “(1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant's actions or to conditions under the defendant’s control.” Am. Multi-Cinema, Inc. v. Brown
, 285 Ga. 442, 444 (2009).
First, the Court of Appeals held that the trial court's ruling on the absence of sufficient evidence to establish a dangerous condition was in error. Indeed, the Court of Appeals previously held that “inability to personally testify as to what caused [one] to fall is not fatal to [one’s] case” when “there is other evidence permitting an inference as to the cause of [the] fall.” Smith v. Tenet Health System Spalding
, 327 Ga. App. 878, 880 (2014). For instance, in Smith
, the Court held that testimony from others concerning the presence of a mop in the vicinity of a fall, paired with testimony from the plaintiff’s daughter about there being something on the floor and testimony from the plaintiff about a nurse asking for paper towels to get something wet on the floor, was sufficient to create a genuine issue of material fact as to whether a foreign substance was on the ground. Id.
In this case, the testimony from the plaintiff and her son, along with other testimony and evidence related to the location where the fall occurred, was similarly sufficient to establish an inference that the ground may have been wet.
Second, the Court of Appeals ruled that it was improper for the trial court to grant summary judgment on the basis that the defendant lacked constructive knowledge. In their answer to the plaintiff’s complaint, the nursing home did not deny constructive knowledge. In addition, the nursing home did not argue that it lacked constructive knowledge in its motion seeking summary judgment. Although a trial court may grant a motion for summary judgment sua sponte, the “trial court must ensure that the party against whom summary judgment is [granted] is given full and fair notice and opportunity to respond.” Hodge v. SADA Enters., 217 Ga. App. 688, 690 (1995).
In the current case, the issue was never raised in the defendant’s motion, and therefore, the plaintiff “was neither required to respond to the motion on that issue, nor required to produce evidence in support of [her] complaint on that issue.” Id. Since the plaintiff did not have a duty to respond, did not know the trial court intended to rule on that issue, and never had an opportunity to respond to arguments concerning a lack of constructive knowledge, the trial court erred in granting the motion on that basis.
Besides giving this elderly woman a chance to have her day in court, this ruling is an important reminder that not all cases fit neatly into standard evidentiary paradigms. If your case does not, it is important to compile all of the available evidence that may be sufficient to get it across the motion practice threshold. Indeed, if you recently have been harmed as a result of possible negligence, you should consider finding competent counsel who is experienced in dealing with all of the evidentiary quagmires that can arise.
The Atlanta premises liability
attorneys at Christopher Simon Attorney at Law have many years of experience with a wide variety of negligence actions, and they are ready to help you assess and bring a potential claim. If you’ve recently been injured on another party’s property and believe it may be a result of negligence, feel free to contact us and arrange a complimentary case evaluation.