                              FIRST DIVISION
                               DOYLE, C. J.,
                          ANDREWS, P. J., and RAY, J.

                    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


                                                                       July 14, 2016




In the Court of Appeals of Georgia
 A16A1737. CHARTER COMMUNICATIONS (DE), INC. et al. v.
     BERWICK.

      ANDREWS, Presiding Judge.

      This appeal is from the denial of the appellants’ motion for summary judgment

in an action seeking damages for injuries sustained by the appellee, Cindy Berwick,

when she tripped over a television cable that lay across her driveway. We reverse.

      Charter Communications ran a television cable across Berwick’s driveway in

order to provide cable service to her neighbors. The cable was orange and easily

visible during the day, and there was a little slack in it that allowed the cable to move

about two feet . At the time of the incident, the cable had been left in place for over

19 months.
      On the evening of July 17, 2012, Berwick carried a three-by-three foot piece

of picture frame glass out to a recycle bin at the street. It was almost midnight, but

with her porch lights on and the street lights, she didn’t think she needed a flashlight.

She successfully stepped over the cable with her right foot, but her left foot caught

on the cable. The motion stressed the glass pane, which broke in two and severely cut

Berwick’s right ankle. Eventually, it was discovered the falling glass had severed a

tendon, which required surgical repair.

      Berwick acknowledged she was long aware of the presence of the television

cable. She drove across the cable four times each day on average, and walked across

it at least once per week.

      1. The instant case is similar to Fitzgerald v. Storer Cable Communications,

213 Ga. App. 872 (446 SE2d 755) (1994), which also involved an injury sustained

from tripping over a television cable lying across a driveway. In Fitzgerald at 873,

this Court noted:

      This is not a typical slip and fall case where liability is premised on
      ownership or control of the premises. We must apply traditional
      negligence principles to the facts. Three elements must be proved to
      establish liability based on negligence: that the defendant had a legal
      duty to protect the plaintiff from a foreseeable risk of the alleged harm,
      that the defendant’s act or omission breached this duty, and that there

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      exists a causal connection between the defendant’s conduct and the
      alleged injury sufficient to show that the conduct proximately caused the
      injury.


(Citation and punctuation omitted.)

      As in Fitzgerald, there is no question but that the first two elements are present

in the instant case. But “the law is clear that when a person has successfully

negotiated an alleged dangerous condition on a previous occasion, that person is

presumed to have knowledge of it and cannot recover for a subsequent injury

resulting therefrom.” (Citation and punctuation omitted.) Sudduth v. Young, 260 Ga.

App. 56, 60 (1) (579 SE2d 7) (2003). Because of Berwick’s long-term actual

knowledge of the presence of the cable and her frequent, successful negotiation of

that condition, the proximate cause of her injury in this case was her own lack of due

care. Fitzgerald v. Storer Cable Communications, supra at 874. Compare Murphy v.

Wometco Cable TV of Fayette County, 223 Ga. App. 640 (478 SE2d 398) (1996). For

that reason, the trial court should have granted summary judgment for the appellants.

      2. Berwick’s complaint also alleged negligence per se, based on a county

ordinance requiring the cable provider to install lines in such a manner so as to cause

the minimum interference with the rights and convenience of property owners, and


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not to cause unreasonable interference with the proper use of streets and public ways.

However, even if the appellants violated that county ordinance, “[n]egligence per se

does not equal liability per se, and [Berwick’s] equal knowledge of the hazard would

still entitle [the appellants] to summary judgment.” Norman v. Jones Lang LaSalle

Americas, 277 Ga. App. 621, 629 (2) (627 SE2d 382) (2006).

      Judgment reversed. Doyle, C. J., and Ray, J., concur.




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