                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           BRANCH and BETHEL, 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


                                                                   October 17, 2017




In the Court of Appeals of Georgia
 A17A1142. STEWART v. BROWN.

      MCFADDEN, Presiding Judge.

      This appeal challenges the grant of summary judgment to the defendant in a

slip-and-fall case. Because there exist genuine issues of material fact about the

defendant’s knowledge of the hazard and the plaintiff’s lack of such knowledge, we

reverse the grant of summary judgment.

      1. Facts and procedural posture.

      “Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law.” Duff v. Bd. of Regents of

Univ. System of Ga., 341 Ga. App. 458 (800 SE2d 640) (2017) (citation omitted). A

defendant moving for summary judgment may prevail “by showing the court that the

documents, affidavits, depositions and other evidence in the record reveal that there
is no evidence sufficient to create a jury issue on at least one essential element of

plaintiff’s case.” Season All Flower Shop v. Rorie, 323 Ga. App. 529-530 (746 SE2d

634) (2013) (citation omitted). “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.” Smith v. Tenet HealthSystem Spalding, 327 Ga. App. 878 (761 SE2d

409) (2014) (citation omitted).

       So viewed, the evidence shows that on July 11, 2015, Emma Stewart attended

her mother’s funeral at the Piney Grove Missionary Baptist Church in Adel, Georgia.

After the service, Stewart began to leave through the front door of the fellowship hall

where she had previously entered. But church deacon Alvin Martin told Stewart not

to use that door and instead directed her to go out a back door that exited through the

church. Stewart followed Martin’s directions and went through the back door, where

she encountered two stairs leading down to a concrete floor. Stewart had never used

the stairs before and as she stepped down she lost her balance, missed the second

stair, and fell to the floor. Stewart suffered injuries in the fall, including a broken leg.

At her deposition, Stewart testified that when she stepped on the first stair she noticed

that the stairs were “so steep” and “so narrow” that she could not see the second stair.

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She also deposed that the stairs were uneven and that as she began to fall she looked

for a handrail to steady herself, but there was nothing to hold on to beside the stairs.

      Martin acknowledged at his deposition that prior to Stewart’s fall he was aware

that there was an area of the stairs that was uneven, which had caused him concern

that someone might fall on the stairs. He testified that the lack of handrails, however,

had not given him any concern. Martin further deposed that a few minutes before

Stewart’s fall, he learned that another woman had also fallen earlier that day.

      Emanuel Brown is the pastor of, and does business as, Piney Grove Missionary

Baptist Church. At his deposition, Brown testified that before Stewart’s fall there had

been discussions in the church about installing a handrail to improve the safety of the

stairs. Brown also deposed that he and Martin had discussed the possibility that the

narrowness of the steps could have caused Stewart’s fall because they were not wide

enough for a foot to step on them. Brown conceded that the way in which the church

maintained the steps could have been better.

      Stewart filed a complaint against Brown, doing business as the church, seeking

damages for her injuries caused by the fall. Brown answered and moved for summary

judgment, claiming that he had no knowledge of any hazard and that Stewart had



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failed to exercise ordinary care for her own safety. The trial court granted the motion.

Stewart appeals from that grant of summary judgment.

      2. Premises liability.

      The duty of an owner or occupier of land to an invitee is set forth in OCGA §

51-3-1, which provides: “Where an owner or occupier of land, by express or implied

invitation, induces or leads others to come upon his premises for any lawful purpose,

he 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 Robinson v. Kroger

Co., 268 Ga. 735 (493 SE2d 403) (1997), our Supreme Court further explained:

      While not an insurer of the invitee’s safety, the owner/occupier is
      required to exercise ordinary care to protect the invitee from
      unreasonable risks of harm of which the owner/occupier has superior
      knowledge. The owner/occupier owes persons invited to enter the
      premises a duty of ordinary care to have the premises in a reasonably
      safe condition and not to expose the invitees to unreasonable risk or to
      lead them into a dangerous trap. The owner/occupier is not required to
      warrant the safety of all persons from all things, but to exercise the
      diligence toward making the premises safe that a good business person
      is accustomed to use in such matters. This includes inspecting the
      premises to discover possible dangerous conditions of which the
      owner/occupier does not have actual knowledge, and taking reasonable
      precautions to protect invitees from dangers foreseeable from the
      arrangement or use of the premises.




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Id. at 740 (1) (citations omitted). In Robinson, the Supreme Court also provided that

“in order to recover 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 the hazard despite the exercise of ordinary

care due to actions or conditions within the control of the owner/occupier.” Id. at 748-

749 (2) (b).

      (a) Hazardous condition.

      In this case, the evidence that the stairs were steep, narrow, uneven, and lacked

a handrail created genuine issues of material fact as to whether the stairs constituted

a hazardous or dangerous condition. “The danger allegedly posed by the steps

resulted from a combination of the steps’ lack of uniformity, their [too steep and

narrow] combined height and width, and the [lack of a] handrail compounding the

first two irregularities.” Murray v. West Bldg. Materials of Ga., 243 Ga. App. 834,

835-836 (534 SE2d 204) (2000).

      (b) Defendant’s knowledge of the hazard.

      Brown contends that there is no evidence that he knew that the stairs were

hazardous. However, as recounted above, Brown himself deposed that prior to

Stewart’s fall there had been discussions in the church about installing a handrail to

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improve the safety of the stairs. And Brown further admitted that the manner in which

the church maintained the steps could have been better. This evidence “is sufficient

for a factfinder to infer that the steps were a hazardous condition of which [the

defendant] had actual or constructive knowledge. Therefore, for purposes of summary

judgment, plaintiff has satisfied the first prong of the Robinson test.” Murray, supra

at 835 (citations omitted).

      (c) Plaintiff’s lack of knowledge and exercise of ordinary care.

      Brown claims that summary judgment was appropriate because the stairs were

a static condition of which Stewart had equal knowledge. We disagree.

             [W]here, as here, the case involves allegations of a static,
      dangerous condition, the rule is well established that the basis of the
      proprietor’s liability is his superior knowledge and if his invitee knows
      of the condition or hazard there is no duty on the part of the proprietor
      to warn him and there is no liability for resulting injury because the
      invitee has as much knowledge as the proprietor does. Accordingly, a
      claim involving a static defect differs from other slip and fall cases in
      that when a person has successfully negotiated an alleged dangerous
      condition on a previous occasion, that person is presumed to have equal
      knowledge of it and cannot recover for a subsequent injury resulting
      therefrom.

Perkins v. Val D’Aosta Co., 305 Ga. App. 126, 128 (699 SE2d 380) (2010) (citations

and punctuation omitted).



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      Here, Stewart testified that she had never used the stairs in question prior to her

fall. Thus, there is no presumption that she had equal knowledge of the hazard

presented by the stairs. Moreover, such a presumption of equal knowledge “applies

only to cases involving a static condition that is readily discernible to a person

exercising reasonable care for his own safety.” Id. at 129 (citation and punctuation

omitted; emphasis supplied). In this case, Stewart deposed that she could not even see

the second step due to the steepness and narrowness of the stairs. Thus, “we find that

the evidence of record creates a material issue of fact as to whether the specific

hazard allegedly precipitating [Stewart’s] fall was readily observable to [her] in the

exercise of ordinary care and whether [she] can therefore be presumed to have [had]

knowledge of it.” Id. at 130 (citations and punctuation omitted).

      As our Supreme Court has reiterated, “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

. . . summary judgment is granted only when the evidence is plain, palpable, and

undisputed.” Duff, supra at 460 (citation and punctuation omitted). In the instant case,

because the evidence on these issues is not plain, palpable, and undisputed, the grant

of summary judgment was erroneous and must be reversed.

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Judgment reversed. Branch and Bethel, JJ., concur.




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