Hotel faces setback in trip-and-fall suit

Law of the Land

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Aug. 11, 2010

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Law of the Land

Tara-Nicholle Nelson
Inman News

Morrell Perkins and his wife Doris checked into the Comfort Inn in Valdosta, Ga., in 2006. During their stay, Perkins descended the stairs on his way from his room to the parking lot, found the step off the curb to be slightly higher than normal, and fell off the curb into the bushes, breaking his ankle, according to court records.

At trial, Perkins testified that he had likely traversed the step at some point during his stay prior to his fall, given that it was on his way to and from his room and he had made at least one trip from his room to his car prior to the fall.

At trial, Perkins' expert opined that the curb was higher than acceptable under the local building codes, was improperly designed and unpainted (while other single-step curbs in the parking lot were painted), and in many other respects presented a hazard for a trip-and-fall injury. The expert went on to state that single step-type curbs are often trip hazards, generally warranting a warning sign.

Val D'Aosta Co., the owner and operator of the Comfort Inn, moved for summary judgment at trial on grounds that the company had no constructive notice of the hazard and that, at the very least, Perkins had equal notice of the curb height because he had passed over it at least once before. Accepting Val D'Aosta's arguments, the trial court issued a judgment in favor of Val D'Aosta with no explanation.

Perkins appealed, and the Court of Appeals of Georgia reversed the trial court's ruling.

First, the appellate court explained that, to succeed on a trip-and-fall claim under Georgia law, the "plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard (constructive knowledge meaning a failure to discover the hazard through the exercise of reasonable care); and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant's actions or to conditions under the defendant's control."

Additionally, the court explained, the reason the property owner could be held liable in trip-and-fall cases is his assumed superior ability to be aware of the hazard; if the visitor has actual knowledge of the hazard, then the owner's liability is eliminated.

The Court of Appeals went on to find that, based on the various hazards testified to by Perkins' expert, Val D'Aosta did have constructive knowledge of the trip hazard created by the curb. However, the court found that there was a material dispute that should be presented to a trial fact-finder on the question of whether Perkins had knowledge of the specific hazard that caused his fall.

Perkins' wife testified that one could navigate the step "only if you watched all the time." But a constant watchfulness was not necessarily required or reasonable, under Georgia law.

Additionally, Perkins had presented additional evidence that the step was difficult to even see under the dark lighting conditions that existed at the time of his fall.

Accordingly, the Court of Appeals found, there was a material issue of fact as to whether Perkins had actual knowledge of the hazard so as to release Val D'Aosta from liability. The trial court's judgment in favor of Val D'Aosta was reversed and the case was sent back to the lower court for further hearing.

Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Tara is also the Consumer Ambassador and Educator for real estate listings search site Trulia.com. Ask her a real estate question online or visit her website, www.rethinkrealestate.com.

                                                   
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