                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, 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


                                                                   February 26, 2020




In the Court of Appeals of Georgia
 A19A2281. D’ELIA v. PHILLIPS EDISON & COMPANY, LTD.
     et al.

      MARKLE, Judge.

      Marilyn D’Elia was injured at the Villages at Eagles Landing shopping center

when she tripped and fell in the parking lot. She filed suit against Phillips Edison &

Company, LTD, and Eagles Landing Station, LLC, both individually and d/b/a

Villages at Eagles Landing shopping center (collectively “Eagles Landing”), seeking

damages for the injuries she sustained.1 The trial court granted summary judgment in

Eagles Landing’s favor. On appeal, D’Elia argues that the trial court erred by granting

Eagles Landing’s motion for summary judgment, and in finding that the defect that




      1
        The current suit is a renewal of an action D’Elia initially filed and then
voluntarily dismissed.
caused D’Elia to trip and fall was open and obvious. Because the alleged defect was

a static condition that was open and obvious, we affirm.

             Summary judgment is appropriate when there is no genuine issue
      of material fact and the movant is entitled to judgment as a matter of
      law. In reviewing the grant or denial of a motion for summary judgment,
      we apply a de novo standard of review, and we view the evidence, and
      all reasonable conclusions and inferences drawn from it, in the light
      most favorable to the nonmovant.


(Citation omitted.) Edwards v. Moore, 351 Ga. App. 147 (830 SE2d 494) (2019).

      So viewed, the evidence shows that, on an afternoon in June 2014, D’Elia was

heading to the tanning salon in Eagles Landing shopping center, which she

frequented weekly. As she walked to the salon, she stopped to throw trash in a nearby

trash can, caught her toe on the curb where the parking lot meets the walkway, and

fell, injuring her right elbow and requiring surgery.

      D’Elia indicated that the place where she fell appeared to be flat, where a

wheelchair or shopping cart can roll, and that the area where her toe caught was

elevated no more than about one inch or less. D’Elia did not typically walk in this

direction when she visited the shopping center, and she only went in that direction on

the day of the accident to throw her trash away. When the accident occurred, D’Elia


                                          2
was looking at the trash can, and she could not tell if the area was raised at the time

of her fall. A few days after her accident, D’Elia returned to the scene and took a

video of the area where she noticed the “lip” of the concrete.

      D’Elia sued Eagles Landing, alleging that the defendants had actual or

constructive knowledge of the defective condition at the junction of the parking lot

and the walkway. Eagles Landing moved for summary judgment, arguing that D’Elia

had presented no evidence showing that they had actual or constructive knowledge

of a hazardous condition on the premises, and that D’Elia failed to use reasonable

care for her own safety when traversing an open and obvious condition.

      D’Elia subsequently amended her complaint to assert that the defendants had

actual or constructive knowledge of the static condition that caused her fall. In

response to the summary judgment motion, D’Elia submitted an expert affidavit

opining that the change in elevation in the walking surface between the parking lot

and the walkway exceeded a quarter of an inch, was abrupt in nature, and violated

certain safety standards. Following a hearing, the trial court granted summary

judgment in favor of Eagles Landing, and this appeal followed.2

      2
        The record does not contain the transcript of the summary judgment hearing.
However, because the purpose of a hearing on a motion for summary judgment is to
hear legal argument rather than to receive evidence, the transcript is usually not

                                          3
      In related arguments, D’Elia argues that the trial court erred in granting Eagles

Landing’s motion for summary judgment because the defect in the walkway that

caused her to fall was not an open and obvious static condition, and issues of fact

remain as to whether the transition between the parking lot and the sidewalk

constituted a hazardous condition of which Eagles Landing had superior knowledge.

We conclude that the trial court properly found that the alleged defect was open and

obvious.

            Under OCGA § 51-3-1, a person who owns or occupies land and
      by express or implied invitation, induces or leads others to come upon
      his premises for any lawful purpose, . . . is liable in damages to such
      persons for injuries caused by his failure to exercise ordinary care in
      keeping the premises and approaches safe. In order to recover on a
      premises liability claim, a plaintiff must show (1) that the defendant had
      actual or constructive knowledge of the hazard; and (2) that the plaintiff
      lacked knowledge of the hazard despite the exercise of ordinary care due
      to actions or conditions within the control of the owner/occupier.
      Accordingly, the fundamental basis for an owner or occupier’s liability
      is that party’s superior knowledge of the hazard encountered by the
      plaintiff. In other words, a plaintiff is not entitled to recovery if the
      undisputed evidence demonstrates that the plaintiff’s knowledge of the
      hazard was equal to or greater than that of the defendant.


necessary on appeal from the grant of summary judgment. See League v. Citibank
(South Dakota), 291 Ga. App. 866, 867-868 (1) (663 SE2d 266) (2008).

                                          4
(Citations and punctuation omitted.) Cherokee Main Street v. Ragan, 345 Ga. App.

405, 407 (813 SE2d 397) (2018).

      “A static condition is one that does not change and is dangerous only if

someone fails to see it and walks into it.” (Citation and punctuation omitted.) Jones

Lang LaSalle Operations v. Johnson, 350 Ga. App. 439, 440 (829 SE2d 629) (2019).

An uneven walkway is a static condition. See Nemeth v. REEF America, 283 Ga.

App. 795, 797 (1) (643 SE2d 283) (2007). When the claim involves a static

condition,”[i]f nothing obstructs the invitee’s ability to see the static condition, the

proprietor may safely assume that the invitee will see it and will realize any

associated risks.” (Citation omitted.) Rentz v. Prince of Albany, 340 Ga. App. 388,

390 (1) (797 SE2d 254) (2017).

      Moreover,

      [o]ccupiers of premises whereon the public is invited to come are not
      required to keep their parking lots and other such areas free from
      irregularities and trifling defects. One coming upon such premises is not
      entitled to an absolutely smooth or level way of travel. The ultimate
      issue is whether [Eagles Landing] was negligent in maintaining a
      hazardous condition on the property, and in everyday life, persons are
      required to negotiate floors, steps, and doorways. Even if the [transition
      in the walkway] was hazardous as [D’Elia] assert[s], the condition was


                                           5
      open and obvious, and thus, in the exercise of ordinary care, [she] could
      have avoided it. There is no duty to warn of the obvious.


(Citation and punctuation omitted.) McLemore v. Genuine Parts Co., 313 Ga. App.

641, 644 (722 SE2d 366) (2012); see also James v. Sirmans, 299 Ga. App. 262, 263

(683 SE2d 354) (2009) (“an invitee is not entitled to an absolutely smooth or level

way of travel. It is common knowledge that small cracks, holes and uneven spots

often develop in pavement; and it has been held that where there is nothing to

obstruct or interfere with one’s ability to see such a static defect, the owner or

occupier of the premises is justified in assuming that a visitor will see it and realize

the risk involved.”) (citation omitted).

      As such, even if Eagles Landing had knowledge of the alleged hazardous

condition of the walkway, D’Elia cannot recover if it is shown that the hazard was

open and obvious. McLemore, 313 Ga. App. at 644. And, the relevant inquiry is

whether D’Elia’s view of the alleged hazard was obstructed at the time she

approached it and was about to traverse the area. Id. at 644-645.

      Here, D’Elia’s argument that the change in elevation of the walking surface

created a camouflaged hazard is unavailing. Although D’Elia stated that she was

looking toward the trash can when she approached the walkway and that she did not

                                           6
notice the transition, her deposition testimony shows that she observed the transition

between the parking lot and the walkway, and that it appeared to her to be flat.3 There

is no evidence showing that there was anything obstructing her view of the area on

which she hit her toe and fell. See City of Brunswick v. Smith, 350 Ga. App. 501, 504

(829 SE2d 781) (2019) (no liability on part of municipality where there was

undisputed evidence that nothing obstructed the plaintiff’s view of the pothole). To

the contrary, the condition of the area in which D’Elia fell was an open and obvious

static condition. “Where an obstruction is perfectly obvious and apparent, so that one

looking ahead would necessarily see it, the fact that the plaintiff merely failed to look

will not relieve her from the responsibility for her misadventure.” (Citation and

punctuation omitted.) McLemore, 313 Ga. App. at 644-645. Therefore, any alleged

hazard the walkway presented was avoidable by D’Elia in the exercise of reasonable

care. Ragan, 345 Ga. App. at 407.

      3
        To the extent that D’Elia suggests that the prior traversal doctrine bears some
application to her case because she had never walked in the area of her fall before, we
are unpersuaded. Prior traversal of the area in which D’Elia fell is not required to find
that the area was an open and obvious static condition. See City of Brunswick v.
Smith, 350 Ga. App. 501, 504 (829 SE2d 781) (2019) (although the trial court noted
that the plaintiff had never used the alleyway before, and thus found that the pothole
was a static condition that the plaintiff had no prior knowledge of, this conclusion did
not account for the undisputed evidence that there was nothing obstructing the
plaintiff’s view of the pothole).

                                           7
      Because we conclude that the alleged hazard was open and obvious, we need

not address D’Elia’s other arguments.4 Accordingly, the trial court properly granted

summary judgment in Eagles Landing’s favor, and we affirm.

      Judgment affirmed. Doyle, P. J., and Coomer, J., concur.




      4
         We note that D’Elia’s expert’s opinion regarding violations of certain
building codes does not create a factual issue since the condition was open and
obvious. See Delk v. Quiktrip Corp., 258 Ga. App. 140, 141 (572 SE2d 676) (2002)
(rain and heavy vehicular traffic at gas station did not create an issue of fact where
the plaintiff had actual knowledge of the obvious raised gas cap cover prior to
tripping over it); see also Nemeth, 283 Ga. App. at 798 (1), n.12 (Court’s conclusion
that uneven patio surface was a static condition of which Nemeth was presumed to
have knowledge was unaffected by Nemeth’s allegation that the patio’s condition
violated building and safety codes). We further note that the record contains no ruling
from the trial court on Eagles Landing’s motion to strike D’Elia’s expert’s affidavit.

                                          8
