                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                     March 22, 2016


In the Court of Appeals of Georgia
 A15A2211. STEPHENS v. KMART CORPORATION.

      BARNES, Presiding Judge.

      Nadine Stephens appeals from the trial court’s grant of summary judgment to

the Kmart Corporation on Stephens’ personal injury complaint for damages after she

was injured when she fell stepping off the curb of a Kmart store. Because an issue of

fact exists as to whether Stephens exercised ordinary care for her own safety, we

reverse.

             We review a grant of summary judgment de novo and view the
      evidence in a light most favorable to the nonmoving party. Summary
      judgment should be granted when no genuine issue of material fact
      exists and the moving party is entitled to judgment as a matter of law. If
      there is no evidence to support at least one essential element of the
      plaintiff’s case, the defendant is entitled to summary judgment.


(Footnotes omitted.) Nemeth v. RREEF America LLC., 283 Ga. App. 795, 796 (643

SE2d 283) (2007).
      So viewed, the record demonstrates that on March 12, 2011, Stephens and her

husband went to a Kmart store located in Tifton to make a payment on items that

were being held in layaway at the store. Stephens had visited the store on two or three

other occasions to make payments, but would make her payment and leave. On this

occasion, while her husband went inside the store, Stephens remained outside to

browse through several clothing racks located on the sidewalk in front of the store.

As she was looking at the clothes, Stephens navigated around a column located on the

sidewalk to get to another rack of clothes and her foot stepped off the curb, causing

her to fall on the asphalt. Stephens testified that the clothes were hanging down from

the racks onto the sidewalk, the racks were lined up bumper to bumper, and the racks

were “right up against the curb,”with no space between the racks and the curb.

Stephens fractured her C-6 vertebrae in the fall.

      A manager on duty the day of the fall took Stephens’ statement and

photographed the scene, and also reported the incident to Kmart. He further testified

that it was his routine practice to initial and date the photographs before sending them

and the report to Kmart’s insurance carrier. The manager identified an exhibit

introduced at his deposition as a photograph taken the day of Stephens’ accident.



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However, the photograph did not contain a date or his initials.1 According to the

manager, he did not see a problem with the way the racks were set up on the sidewalk,

but he also testified that Stephens had not complained about how the racks were set

up or mention that she had fallen because her view was obstructed by the racks being

placed too close to the curb. A Kmart corporate representative testified that per their

sidewalk sale policies and procedures, “we make sure there’s a 36-inch clearance

between rack to rack or whether its pallet to pallet outside. We make sure that

customers are able to maneuver from each side of the pallet or whatever we may have

displayed outside.”

      Following a hearing, the trial court granted Kmart’s motion for summary

judgment based on the “entire record, including briefs, applicable law, and oral

argument.” On appeal, Stephens essentially contends that the trial court erred in

granting summary judgment to Kmart because of remaining disputed material facts.

      1. Stephens first asserts that the trial court impermissibly traversed the province

of the jury and based its grant of summary judgment on “the fact-specific nature of

the claims.” But the quoted phrase is from a letter the trial court sent to the parties’


      1
         The paper the photograph is printed on contains the date “6/16/2011,” but
there is no indication in the record what the date represents.

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which the trial noted that, “[t]his is a very close call. Case law is all over the place

because of the fact-specific nature of these claims. I’m granting Defendant Kmart’s

motion.”

      Even assuming, without deciding, that the letter, which does not contain a

stamped file date, is part of the record below, we conduct a de novo review on appeal

from a grant of summary judgment, and thus Stephens cannot show that the trial

court’s statement reflects any action which harmed her. See McClain v. George, 267

Ga. App. 851, 854 (2) (600 SE2d 837) (2004) (failure to show harm vitiates any

possible error.)

      2. Stephens also contends that the trial court erred in granting Kmart summary

judgment because there were material issues of fact as to whether the curb was

obstructed by the racks and clothing on the sidewalk. We agree.

             The “routine” issues of premises liability, i.e., the negligence of
      the defendant and the plaintiff, and the plaintiff’s lack of ordinary care
      for personal safety are generally not susceptible of summary
      adjudication, and that summary judgment is granted only when the
      evidence is plain, palpable, and undisputed. . . . [A]n invitee’s failure to
      exercise ordinary care is not established as a matter of law by the
      invitee’s admission that he did not look at the site on which he placed
      his foot or that he could have seen the hazard had he visually examined
      the floor before taking the step which led to his downfall. Rather, the

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      issue is whether, taking into account all the circumstances existing at the
      time and place of the fall, the invitee exercised the prudence the
      ordinarily careful person would use in a like situation.. . . [A]n invitee
      presents some evidence of the exercise of reasonable care for personal
      safety when the invitee explains that something in the control of the
      owner/occupier and of such a nature that the owner/occupier knew or
      should have known of its distractive quality caused him not to look at
      the site of the hazard.


(Emphasis supplied.) Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403)

(1997). “A static condition is one that does not change and is dangerous only if

someone fails to see it and walks into it.” Thomas v. Executive Committee of the

Baptist Convention &c., 262 Ga. App. 315, 319 (c) (585 SE2d 217) (2003). A person

is presumed to have knowledge of such a defect “when that person has successfully

negotiated the alleged dangerous condition on a previous occasion.” (Punctuation and

footnote omitted.) Nemeth, 283 Ga. App. at 797 (1). Here, “the issue is whether the

factual evidence is plain, palpable, and undisputed that nothing obstructed

[Stephens’] ability to see the [drop off to the curb] and thus the defect was or should

have been visible to her.” Thomas, 262 Ga. App. at 319 (c). Notably, “[i]t is . . .

[Stephen’s] knowledge of the specific hazard which precipitates the slip and fall

which is determinative, not merely her knowledge of the generally prevailing

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hazardous conditions or of the hazardous conditions which plaintiff observes and

avoids.” (Punctuation and footnote omitted.) Jackson v. Waffle House, 245 Ga. App.

371, 374 (2) (537 SE2d 188) (2000).

      Stephens maintains that, even with the general knowledge that there was a drop

off from the sidewalk to the curb, it was impossible to determine where the drop off

was because of the position of the racks and because the clothes were hanging down

to the sidewalk. In Robinson, the Supreme Court rejected the contention that an

invitee must continuously survey the floor for defects. Robinson v. Kroger Co., supra

at 742 (1). Thus, “an invitee need not look continuously at the ground for defects

because the invitee is entitled to assume that the owner/occupier has exercised

reasonable care to make the premises safe.” (Punctuation and footnote omitted.)

Christensen v. Overseas Partners Capital, 249 Ga. App. 827, 830 (2) (549 SE2d 784)

(2001).

      Stephens described the clothing racks as flush against the edge of the curb with

no space between the clothing racks and the curb, and also stated she could not see

where the sidewalk ended. Moreover, although Kmart’s corporate representative

testified about the polices and procedures regarding the placement of displays during

a sidewalk sale, there is no evidence that the clothing racks’ placement on the day of

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Stephens’ fall complied with its policy. Likewise, the store manager stated that he

took a photograph of the scene and submitted an incident report to the insurance

carrier, but the photograph introduced as an exhibit to his deposition is not signed or

dated as he testified was customary.

      Accordingly,

      there is a question of fact as to whether the configuration of the
      merchandise display by [Kmart] was such that the injury sustained was
      proximately caused by its negligence and whether [Stephens] exercised
      reasonable care for her own safety. Therefore, the trial court erred in
      granting summary judgment to [Kmart].


Myers v. Harris, 257 Ga. App. 286, 288 (1) (570 SE2d 600) (2002) (reversing

summary judgment where plaintiff testified that furniture in showroom camouflaged

the fact floor dropped off onto the ramp below, even where plaintiff had previously

negotiated the ramp up to the raised floor).

      Judgment reversed. McMillian, J., concurs. Ray, J., concurs fully in Division

2 and in the judgment as to Division 1.




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