SUPREME COURT OF GEORGIA

Case No. S22G1043

September 14, 2023

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed:

LYNN B. GIVENS et al. v. CORAL HOSPITALITY-GA, LLC.

Upon consideration of the parties’ Consent Motion to Withdraw 

Appeal, the motion is hereby granted.

All the Justices concur.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

, Clerk
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PINSON, J., concurring.

In this case, the Court of Appeals relied on a long line of its 

precedent to reject a property owner’s liability for an injury on its 

property as a matter of law because the invitee acknowledged that 

had she looked down, she would have seen the raised patch of 

asphalt that she tripped over. Our Court granted review to address 

whether that line of precedent, including the decision below, has 

departed from certain of our holdings in Robinson v. Kroger Co., 268 

Ga. 735, 748 (2) (B) (493 SE2d 403) (1997) (holding that “an 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” (emphasis added)). Now that the parties have settled this 

case, it is no longer an appropriate vehicle for addressing this 

question. But, as I explain below, the question remains important, 

and I would be open to granting review again to address this 

question in an appropriate case.
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Under our premises-liability statutes, an owner or occupier of 

land owes invitees a duty to keep the premises safe. See OCGA § 51-

3-1. In actions seeking to recover for injuries caused by a proprietor’s 

breach of this duty, the litigation often focuses on two issues: (1) 

whether the proprietor knew or should have known about the 

hazard that caused the injury, and (2) whether the invitee knew 

about the hazard or could have avoided it through the exercise of 

ordinary care for her personal safety. See Am. Multi-Cinema, Inc. v. 

Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009). The first issue has 

to do with the element of breach. If a proprietor didn’t know about 

the hazard in question even having exercised the requisite degree of 

care to identify risks to invitees’ safety on the premises, it hasn’t 

breached its duty of care. See id. at 447 (3). The second issue includes 

two related defenses to liability rooted in contributory negligence. If 

the invitee either (a) knew about the hazard and intentionally 

disregarded it, or (b) could have discovered and avoided the hazard 

if she had exercised ordinary care for her own safety—respectively, 
4

“voluntary negligence” or “causal negligence”—she cannot recover. 

Id. at 445. See also Robinson, 268 Ga. at 748-749.1

The question presented by this case involved the latter defense 

of causal negligence. One way a proprietor can argue that the invitee 

could have discovered and avoided a hazard had she exercised 

ordinary care is to argue that she reasonably should have known 

about the hazard because it was “in plain view.” See Marlowe v. 

Cabe, 207 Ga. App. 764, 765 (429 SE2d 151) (1993) (“The plain view 

doctrine imposes a duty on an invitee ‘to look where he is walking 

and to see large objects in plain view which are at a location where 

they are customarily placed and expected to be.’”); Stenhouse v. Winn 

Dixie Stores, Inc., 147 Ga. App. 473, 474 (249 SE2d 276) (1978) 

(same). Proprietors often try to ground this kind of argument in 

evidence that nothing obstructed the invitee’s view of the hazard, or 

1 The invitee has the burden to prove the proprietor’s knowledge of the 

hazard as part of the plaintiff’s burden to prove each element of her claim, 

while the proprietor has the burden to prove voluntary or causal negligence, 

which are affirmative defenses to liability. See Am. Multi-Cinema, 285 Ga. at 

445.
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that she would have seen it had she looked at the ground, or floor, 

or wherever the hazard was found. See Marlowe, 207 Ga. App. at 

765; Stenhouse, 147 Ga. App. at 474. 

In Robinson v. Kroger Co., however, we clarified that this kind 

of evidence, at least by itself, does not give courts license to routinely 

decide the question whether an invitee failed to exercise ordinary 

care for her personal safety as a matter of law. 268 Ga. at 742-743 

(1). After all, the question whether any given hazard was sufficiently 

obvious is a question whether the invitee reasonably could have seen 

and avoided it in the exercise of ordinary care. And in tort law, 

questions about reasonableness under the circumstances are 

quintessentially questions for the factfinder. See, e.g., Ellington v. 

Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976) (“‘Even 

where there is no dispute as to the facts, it is, however, usually for 

the jury to say whether the conduct in question met the standard of 

the reasonable man.’”). As we explained more recently in American 

Multi-Cinema, 285 Ga. at 445 (2):
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issues such as how closely a particular retailer should 

monitor its premises and approaches, what retailers 

should know about the property’s condition at any given 

time, how vigilant patrons must be for their own safety in 

various settings, and where customers should be held 

responsible for looking or not looking are all questions 

that, in general, must be answered by juries as a matter 

of fact rather than by judges as a matter of law.

So, evidence that “the invitee’s view was not obstructed” or that “the 

hazard could have been seen had the invitee looked at the ground” 

may well be evidence from which a jury could find that the invitee 

reasonably should have seen and avoided the hazard. But Robinson 

says that taken alone, this kind of evidence does not ordinarily 

establish an invitee’s failure to exercise ordinary care as a matter of 

law. See Robinson, 268 Ga. at 742-743 (1). See also id. at 743 (1) 

(“Demanding as a matter of law that an invitee visually inspect each 

footfall requires an invitee to look continuously at the floor for 

defects, a task an invitee is not required to perform since the invitee 

is entitled to assume that the owner/occupier has exercised 

reasonable care to make the premises safe for the invitee and 

continues to exercise such care while the invitee remains on the 
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premises.”) (cleaned up). Instead, the question whether an invitee’s 

own negligence precludes her recovery “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.” Id. at 748. And unless the evidence on 

that question is “plain, palpable, and undisputed,” that question is 

for the jury. Id.2

In rejecting this “the hazard was visible and she didn’t look 

down” reasoning as the sole basis for denying liability as a matter of 

law, Robinson disapproved a number of Court of Appeals decisions 

that had applied that reasoning. See id. at 743 (1). Yet the reasoning 

of the decision below looks very much like those disapproved 

2 Robinson does not seem to take issue with decisions concluding that an 

invitee failed to exercise ordinary care as a matter of law where the hazards 

are “large objects in plain view,” like “a ‘clearly visible’ pile of dirt in the road.” 

268 Ga. at 742 (1) (quoting Stenhouse, 147 Ga. App. at 474 and Atlanta Gas 

Light Co. v. Brown, 94 Ga. App. 351, 356 (94 SE2d 612) (1956)). Those decisions 

appear to apply the settled rule “that ordinarily questions of diligence and 

negligence, including proximate cause, are for the jury,” but that it is “the duty 

of the court to determine those questions in clear, palpable, and indisputable 

cases.” Atlanta Gas Light Co., 94 Ga. App. at 354. Robinson’s point was that 

decisions concluding that a hazard was in plain view as a matter of law should 

be the rare exception, not the general rule.
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decisions. The invitee here tripped over a small patch of raised 

asphalt outside of her rental cabin and sued the property owner 

under our premises-liability statutes. The Court of Appeals held 

that she could not recover as a matter of law based only on her 

acknowledgment that “nothing impeded her view” and “the only 

reason she did not see the raised asphalt was that she did not look 

at it.” Coral Hosp.-GA, LLC v. Givens, 363 Ga. App. 664, 665 (871 

SE2d 325) (2022). At least on its face, this reasoning seems to 

conflict directly with Robinson. See 268 Ga. at 748 (2) (B); id. at 742 

(1) (criticizing “cases wherein the appellate court ruled that, as long 

as the invitee’s view was not obstructed, a hazard, no matter its size, 

was in ‘plain view’ and recovery was precluded if the hazard could 

have been seen had the invitee looked at the ground”).

And this decision is not a one-off: the Court of Appeals here 

faithfully applied a line of Court of Appeals decisions that reject 

liability as a matter of law for injuries caused by “static conditions” 

like “uneven walkway[s]” “[w]here nothing obstructs an invitee’s 

ability to see” them, because the owner “‘may safely assume that the 
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invitee will see [them] and will realize any associated risks.’” Coral 

Hosp.-GA, LLC, 363 Ga. App. at 665 (quoting D’Elia v. Phillips 

Edison & Co., Ltd., 354 Ga. App. 696, 698-699 (839 SE2d 721) 

(2020)). See, e.g., LeCroy v. Bragg, 319 Ga. App. 884, 886 (1) (739 

SE2d 1) (2013) (reversing denial of summary judgment to property 

owner where “potholes were open and obvious” and “nothing 

obstructed [the plaintiff’s] ability to see” the hole she stepped in); 

McLemore v. Genuine Parts Co., 313 Ga. App. 641, 645 (722 SE2d 

366) (2012) (affirming grant of summary judgment to property 

owner where parking lot curb was not obstructed from plaintiff’s 

view). This line of precedent finds its roots in pre-Robinson Court of 

Appeals decisions, including one that Robinson singled out for using 

this reasoning improperly to reject liability as a matter of law. See 

268 Ga. at 743 (citing Emory Univ., Inc. v. Duncan, 182 Ga. App. 

326, 329 (2) (355 SE2d 446) (1987) (“Plaintiffs’ assertion that there 

was nothing about the alleged defect which would have drawn Ms. 

Duncan’s attention to it cannot avail, for it does not appear that she 

ever looked down. It was incumbent upon her, as a matter of law, to 
10

use her eyesight for the purpose of discovering any discernible 

obstruction or defect in her path.”) (cleaned up)). See also Crenshaw 

v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992) (citing Emory 

Univ., 182 Ga. App. 326; Jeter v. Edwards, 180 Ga. App. 283 (349 

SE2d 28) (1986)) (noting that “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”); Freyer v. 

Silver, 227 Ga. App. 253, 256 (488 SE2d 728) (1997) (same), cert. 

granted, judgment vacated, and case remanded in light of Robinson

(Jan. 5, 1998).3

The proprietor here points out that this case involves a socalled “static condition” rather than the “transient foreign 

substance” that caused the injury in Robinson. But several of the 

decisions Robinson disapproved also involved static conditions. See 

Robinson, 268 Ga. at 742-743 (criticizing Papera v. TOC Retail, 218 

3 See Freyer v. Silver, 234 Ga. App. 243, 245 (507 SE2d 7) (1998) 

(explaining history of case).
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Ga. App. 777 (463 SE2d 61) (1995) (involving a hole in parking lot 

pavement); Steele v. Rosehaven Chapel, 223 Ga. App. 523 (478 SE2d 

596) (1996) (involving a step with no marking or handrail at exit of 

funeral home); Wiley v. Family Dollar Store, 208 Ga. App. 461 (430 

SE2d 839) (1993) (involving a 1-inch gap between asphalt ramp and 

sidewalk); Emory Univ., 182 Ga. App. at 326 (involving a 1-inch rise 

in concrete)). And neither Robinson nor any other decision of ours 

appears to limit Robinson’s holdings to cases involving “transient 

substances.” In fact, in other decisions, the Court of Appeals has 

applied Robinson in cases involving static conditions and rejected 

the reasoning of the line of precedent that the Court of Appeals 

applied here. See, e.g., Rozy Invs., Inc. v. Bristow, 276 Ga. App. 278, 

282-283 (4) (623 SE2d 171) (2005); Aggeles v. Theater of the Stars, 

Inc., 235 Ga. App. 57, 58-59 (507 SE2d 856) (1998); Freyer v. Silver, 

234 Ga. App. 243, 246-247 (3) (507 SE2d 7) (1998). This is not to say 

that the difference between transient and static hazards could not 

be meaningful depending on the circumstances of a given case—for 

example, evidence that an invitee had “successfully traversed” a 
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static condition on prior occasions could be strong (if not dispositive) 

evidence that the invitee knew about the hazard and intentionally 

disregarded it, or could have avoided it had she exercised ordinary 

care. See Nemeth v. RREEF Am., L.L.C., 283 Ga. App. 795, 798 (1) 

(643 SE2d 283) (2007). But the notion that Robinson’s clear holding 

simply does not apply in cases involving static conditions does not 

seem to hold water.

*

In sum, the decision below adds to a line of Court of Appeals 

decisions that appears to conflict with our own precedent and other 

decisions of the Court of Appeals, and this conflict concerns a legal 

issue that recurs with great frequency. Addressing this kind of 

inconsistency in our law and clearing it up is just the kind of thing 

our certiorari review is meant for. This case is no longer an 

appropriate vehicle for that review now that the parties have settled 

it. But the inconsistency in our law remains, so I am open to granting 

review again to address these issues in an appropriate case. 
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I am authorized to state that Presiding Justice Peterson joins 

in this concurrence.