                            FIRST DIVISION
                            BARNES, P. J.,
          GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS

                    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 27, 2020




In the Court of Appeals of Georgia
   A20A0649. WILLIAMS               INVESTMENT             COMPANY            v.
      GIRARDOT.

      PHIPPS, Senior Appellate Judge.

      Appellee Yulonda Girardot filed suit against appellant Williams Investment

Company d/b/a Days Inn (“the hotel”) to recover damages that she allegedly sustained

when she slipped and fell on a wet sidewalk at appellant’s hotel. The hotel filed a

motion for summary judgment, which the trial court denied. We granted the hotel’s

application for interlocutory appeal to review the trial court’s decision. On appeal, the

hotel contends that the trial court erred in denying summary judgment in its favor

because the undisputed evidence established that Girardot (1) had equal, or superior,

knowledge of the alleged hazardous condition and (2) assumed the risk associated

with the alleged hazard. We agree with the hotel and reverse.
      Summary judgment is proper when no genuine issue of material fact
      exists 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.


(Citation omitted.) Pinckney v. Covington Athletic Club & Fitness Ctr., 288 Ga. App.

891, 891 (655 SE2d 650) (2007).

      So viewed, the record shows that on July 1, 2016, Girardot and her four

grandchildren were guests at the hotel that appellant owned and operated. Girardot’s

hotel room was located in close proximity to the hotel’s pool. After dinner, at

approximately 6:30 p.m., Girardot and her grandchildren went to the pool. When

walking to the pool area, Girardot did not notice anything hazardous or slippery about

the subject sidewalk between the hotel room and the pool.

      Girardot remained at the pool for approximately an hour. At some point,

Girardot left the pool area to escort her youngest grandson to the bathroom. Girardot

and her grandson traversed the same route back toward the hotel room that they had

taken to the pool. It was near dusk and lights illuminated the sidewalk leading from

the pool area to the hotel room.


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       According to Girardot, there had been approximately six other guests at the

pool, and other pool guests may have walked down the same sidewalk before her.

Girardot’s grandson had not dried off at the pool and had water dripping from him as

he walked ahead of Girardot. Girardot described that, as she walked from the pool

area, the lights illuminated the sidewalk and she saw that the sidewalk leading to the

hotel room was painted, “shin[y],” and wet. Girardot also observed that a portion of

the enamel on the sidewalk’s surface was peeling off. Girardot further described that

as the light was shining on the wet sidewalk, she could see that “it looked slick.”

Recognizing that the wet sidewalk area required the exercise of caution, Girardot

warned her grandson to “slow down[.]”

       While traversing the wet sidewalk, Girardot slipped and fell.1 She suffered

multiple injuries to the left side of her body as a result of the fall. She reported the fall

incident to the hotel’s front desk shortly thereafter and the hotel manager completed

an incident report on the following day.




       1
       At her deposition, Girardot identified the sidewalk where she fell in a
photograph. She further clarified that there were bushes and a grassy area next to the
sidewalk where she fell.


                                             3
      Girardot filed suit against the hotel, seeking to recover for damages that she

allegedly sustained as a result of the fall incident. After deposing Girardot, the hotel

filed a motion for summary judgment. In response to the motion, Girardot presented

an expert affidavit from a retired OSHA trainer who opined that the hotel failed to

maintain the sidewalk in a reasonably safe condition; the sidewalk surface had

deteriorated paint, which significantly increased the likelihood of a pedestrian

slipping when moisture was present; and that Girardot’s fall was likely caused by the

uneven surface material on the sidewalk. The trial court denied the hotel’s motion and

the instant appeal ensued.

             The owner or occupier of [a] premises is under a duty to keep its
      premises reasonably safe and to warn of hidden dangers or defects not
      observable to invitees who are exercising ordinary care for their own
      safety. However, a property owner is not an insurer of the safety of its
      invitees. The mere showing of the occurrence of an injury does not
      create a presumption of negligence.


(Citations and punctuation omitted; emphasis supplied.) Cleghorn v. Winn Dixie

Stores, 228 Ga. App. 766, 766 (492 SE2d 745) (1997).

      [T]o recover damages for injuries sustained in a slip-and-fall action, an
      invitee must prove (1) that the defendant had actual or constructive
      knowledge of the hazard; and (2) that the plaintiff lacked knowledge of

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      the hazard despite the exercise of ordinary care due to actions or
      conditions within the control of the owner/occupier.


(Punctuation and footnote omitted.) Weickert v. Home Depot U. S. A., 347 Ga. App.

889, 891 (821 SE2d 110) (2018).

      A plaintiff cannot recover on a premises liability claim unless the
      defendant had superior knowledge of the hazard; consequently, the
      defendant is entitled to summary judgment if there is no evidence that
      it had superior knowledge or if the undisputed evidence demonstrates
      that the plaintiff’s knowledge of the hazard was equal to or greater than
      that of the defendant.


(Punctuation and footnote omitted.) Diaz v. Wild Adventures, Inc., 289 Ga. App. 889,

891 (658 SE2d 362) (2008).

      In the instant case, the hotel argues that it was entitled to summary judgment

because the undisputed evidence, including Girardot’s own deposition testimony,

established that she had at least equal knowledge of the hazardous condition before

she proceeded to walk on the sidewalk. We agree.

      Significantly, at her deposition, Girardot testified that she had previously

traversed the same sidewalk after she had checked into the hotel and was initially

going to the hotel room. At that time, she noticed that the sidewalk’s surface had


                                         5
chipped paint, but she had no difficulty walking on the sidewalk. She further testified

that when she later walked from the pool area, there were lights illuminating the

sidewalk area and she saw that the painted sidewalk was “shin[y]” and appeared to

be wet. Specifically, she demonstrated the path that she took around the corner from

the pool and confirmed that “[she] had seen that it was wet when [she] came around

[from the pool area] because . . . the lighting [was] shining on it, [and] you could see

it looked slick.” She confirmed that because of the lighting, the wet sidewalk was

more noticeable and she could see the sidewalk area well. Girardot’s appreciation of

the hazard is highlighted by the fact that she warned her grandson to exercise caution

as he walked ahead of her. This combined testimony established that the alleged

sidewalk hazard was openly visible due to lights illuminating the sidewalk and that

Girardot had observed and appreciated the sidewalk hazard before she walked upon

it.2 “She nevertheless chose to negotiate the hazard and thus assumed the risk as to

      2
         While the evidence shows that Girardot was aware of the hazardous wet
condition on the sidewalk prior to the fall, there is no evidence that the hotel had
superior knowledge of the hazard. There is no evidence as to how long the sidewalk
had been wet. Likewise, there is no evidence that any hotel employees had been in the
immediate vicinity who could have discovered that the sidewalk was wet prior to the
incident. And Girardot does not point to any evidence that the hotel had notice of
prior falls on the sidewalk. Under these circumstances, Girardot has failed to show
that the hotel had actual or constructive knowledge of the wet hazardous condition.
See Fulton-Dekalb Cty. Hosp. Auth. v. Estes, 187 Ga. App. 120, 121-122 (369 SE2d

                                           6
the known condition by voluntarily acting in the face of such knowledge.”

(Punctuation and footnote omitted.) Emory Univ. v. Smith, 260 Ga. App. 900,

902-903 (581 SE2d 405) (2003).3



      Because Girardot’s deposition testimony plainly and indisputably shows that

she had at least equal knowledge of the wet, slick hazard before she voluntarily

proceeded to traverse the sidewalk, the hotel was entitled to summary judgment in its

favor. See Briddle v. Cornerstone Lodge of America, 288 Ga. App. 353, 355 (654

SE2d 188) (2007) (affirming grant of summary judgment to defendant in slip and fall

action when evidence showed that plaintiff was aware of the wet floor hazard and

voluntarily chose to walk across the wet surface); Emory Univ., 260 Ga. App. at

902-903 (trial court erred in denying defendant’s motion for summary judgment when


262) (1988) (defendant was entitled to summary judgment when there was no
evidence how long the floor had been allowed to remain in a wet condition or that an
employee of defendant was in the immediate vicinity to have an opportunity to
discover the hazardous condition).
      3
       Girardot does not assert or point to any evidence that she was constrained by
circumstances to walk on the sidewalk where the hazard existed. And no such finding
was made by the trial court. “Where a plaintiff is not required to traverse a route upon
which a known hazard exists, but chooses to do so, she can be deemed to have
voluntarily assumed the risk of injury.” (Citations and emphasis omitted.) Lea v. Am.
Home Equities, 210 Ga. App. 214, 215 (2) (435 SE2d 734) (1993).

                                           7
the evidence showed that plaintiff saw the sloped, painted, and wet ramp hazard

before she stepped on it, but she chose to negotiate the hazard); Cleghorn, 228 Ga.

App. at 766-767 (property owner was entitled to summary judgment when plaintiff

conceded that nothing obstructed his view of the floor hazard and made no claim that

he had been distracted, but apparently decided that he could safely traverse the area

by walking “very carefully”).

      Judgment reversed. Barnes, P. J., and Gobeil, J., concur.




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