FIFTH DIVISION

MCFADDEN, P. J.,

MCMILLIAN and GOSS, 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

June 13, 2019

In the Court of Appeals of Georgia

A19A0084. JONES LANG LASALLE OPERATIONS, LLC et al.

v. JOHNSON. 

GS-003

GOSS, Judge.

We granted this interlocutory appeal to consider whether the trial court erred

when it denied summary judgment to the defendant owners of a restaurant sued by

Dan Johnson, who fell on an attempt to descend the laststep between the restaurant’s

entrance landing and stairs and its parking lot. The defendants argue that they are

entitled to summary judgment because Georgia law bars recovery by a plaintiff who

has previously traversed a static hazard under substantially the same conditions as

those prevailing when he fell. We find no error and affirm the trial court’s denial of

summary judgment. 
Summary judgment is proper if the pleadings and evidence “show that there is

no genuine issue as to any material fact and that the moving party is entitled to a

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 non-movant.” (Citation and punctuation omitted.) Norwich v. The

Shrimp Factory, Inc., 332 Ga. App. 159, 160 (770 SE2d 357) (2015).

Thus viewed in favor of Johnson as the non-movant, the record shows that a

series of stairs and single-step landings connects Dantanna’srestaurant, located in the

Shops Around Lenox shopping center in Atlanta, to the parking lot below it. Each of

the three sets of stairs contains a handrail in the center, but the handrails do not

extend onto the landings. The stairs, landings, and parking lot are generally the same

color, and there are no warning signs or paint on the stairs or landings. From the time

the defendant owners purchased the property in December 2013 to the plaintiff’s fall

in April 2015, defendants did not receive any reports of falls occurring on the stairs

or landings. Johnson later testified, however, that a parking lot attendant who saw his

fall and offered assistance told him at that time that “[w]e have people trip on that

step all the time.” 

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On April 2, 2015, Johnson and the colleague went to have lunch at the

restaurant, arriving around 11:30 a.m. Johnson had never been to the restaurant

before. It was daylight, overcast, and mild when they arrived, and Johnson ascended

the landings and stairwaysinto the restaurant without any difficulty. He did not drink

alcohol during lunch, and when he left around 1:00 p.m., the weather conditions were

the same as when he arrived. When leaving, Johnson used the same set of steps he

had an hour earlier but fell as he attempted to walk into the parking lot, apparently

failing to realize there was a final, single step there off the bottom landing. 

Johnson testified that he did not notice anything “odd” or “hazardous” about

the stairs as he ascended them. He testified that he was talking to his colleague but

paying attention while descending and that when he reached the last landing, he did

not see the single step to the parking lot because it was unmarked, looked the same

as the landing, and had no railing or warning signs. Johnson also testified that

although he was looking straight ahead, he likely glanced down to confirm his

perception that he had finished descending, and that the blind step caused him to

“step into air” without knowing that there was a change in elevation. The colleague

averred that Johnson was paying attention while descending the stairs and that the

landing step where he fell did not have any railings or markings and was not readily

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apparent on descent. Johnson also produced an expert in premisesliability and safety

and loss prevention, Jeffrey Gross, who averred that the bottom step from the landing

to the parking lot was inherently dangerous and created an unreasonable fall hazard

to persons descending the stairs, as it had no handrails and was not marked with

contrasting paint or warning signs. He averred that unmarked single-step risers

present more problems to persons descending steps than when ascending, as the face

of the step can only be seen during ascent and not descent. 

The defendantsfiled a motion for summary judgment, arguing that the plaintiff

was barred fromrecovery because knowledge of the alleged hazardous condition was

imputed to him based on his prior successful traversal of it about an hour before his

fall under the same conditions. Johnson responded that he had presented evidence the

defendants had superior knowledge of the unreasonable safety hazard posed by the

unmarked landing where he fell. The trial court denied defendants’ motion,

concluding that it could not find as a matter of law that they fulfilled their duty to

avoid creating an unreasonable risk of foreseeable harm. Specifically, the court held

that questions of fact remained as to whether the hazard posed by the last single step

was “readily discernable,” whether Johnson had equal or greater knowledge of the

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hazard, and whether he exercised ordinary care for his own safety. This interlocutory

appeal followed. 

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

someone failsto see it and walks into it.” Bullard v. Marriott Intl., 293 Ga. App. 679,

681 (2) (667 SE2d 909) (2008). In a slip-and-fall case involving allegations that a

static condition, such as the landing on which Johnson fell, is dangerous,

the basis of the proprietor’sliability 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. . . .

[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. 

(Citations and punctuation omitted.) Perkins v. Val D’Aosta Co., 305 Ga. App. 126,

128 (699 SE2d 380) (2010). But “the rule imputing knowledge of a danger to a

person who hassuccessfully negotiated an alleged dangerous condition before applies

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

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exercising reasonable care for his own safety.” (Citations and punctuation omitted.)

Id. at 128-129. 

Here, Johnson and his colleague both testified that the step down from the final

landing to the parking lot surface was not readily discernible, and it is undisputed that

there were no markings, warning signs, or handrailsthere. Asin Perkins, then, which

also involved a step down from a curb into a parking lot, these defendants were

“charged with notice of the [step’s] height in relation to the parking lot, the lighting

conditions, the view of the curb for someone descending the stairs, and the absence

of any paint or warning signs” in the area, such that their superior knowledge of the

hazard posed by the final step is a jury question. 305 Ga. App. at 129 (reversing a

grant of summary judgment to defendant owner); see also Strauss v. City of Lilburn,

329 Ga. App. 361, 364 (1) (765 SE2d 49) (2014) (reversing a grant of summary

judgment to defendant owner when there was “no evidence” that the plaintiff “had

actually walked either up or down” the single step at any time prior to her fall). Our

decision in Norwich, supra, is distinguishable on a number of grounds, including the

mere “moments” between that plaintiff’ssuccessful ascent of a step and her fall down

the same, the unchanged interior lighting conditions, and the presence of a warning

sign. See 332 Ga. App. at 162. And we are not bound by our decision in Joe

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Enterprise, LLC v. Kane, 341 Ga. App. 12 (798 SE2d 97) (2017), which is physical

precedent only, because that plaintiff could not say how she fell and because the

alleged hazard was “open and obvious.” Id. at 14-15 (1), 17 (2). 

Here, genuine questions of factremain asto whether the step on which Johnson

fell was readily discernable and thus as to his equal knowledge of any hazard posed

by that condition and hisreasonable care asto his own safety. We therefore affirmthe

trial court’s denial of defendants’ motion for summary judgment.

Judgment affirmed. McFadden, P. J., and McMillian, J., concur.

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