Nicholson Et Al. v. Pike Nurseries, Inc., 229 Ga. App. 540, 494 S.E.2d 214 (1997)

Summary

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Judgment affirmed. Birdsong, P. J., and Eldridge, J., concur.

Summary

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Judgment affirmed. Birdsong, P. J., and Eldridge, J., concur.

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Lefco & Blumenthal, Stanley M. Lefco, for appellants.

Sylvia Nicholson and James A. Nicholson filed a rainy day slip and fall action against Pike Nurseries, Inc. ("Pike"). [1] Enumerating three errors, they appeal the summary judgment awarded to Pike.

Reviewed in a light most favorable to the Nicholsons, the evidence was as follows. McGonagil v. Treadwell, 51-3-1. However, a property owner is not an insurer of the safety of its invitees. Pound v. Augusta Nat., 158 Ga. App. 166 (279 SE2d 342) (1981). The mere showing of the occurrence of an injury does not create a presumption of negligence. Rather, the true ground of liability is the owner's or occupier's superior knowledge of the hazard and the danger therefrom. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994).

In this case, in order to recover, Nicholson would have to show that Pike had actual or constructive knowledge of the hazard and that she lacked knowledge of that hazard or was prevented by Pike from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Hudson v. Quisc, Inc., 205 Ga. App. 840 (424 SE2d 37) (1992). Nicholson made no claim that Pike distracted her or that anything obstructed her view. By her own admission, Nicholson saw the rainwater dripping onto the ramp. Because her knowledge of the wet floor was at least equal to that of Pike's, her recovery was foreclosed. Bruno's, Inc. v. Pendley, 215 Ga. App. 108, 109 (449 SE2d 637) (1994).

Further, when a person has successfully negotiated an allegedly dangerous condition on a prior occasion, that person is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting therefrom. Souder v. American Family Restaurants, 210 Ga. App. 291, 292 (1) (435 SE2d 764) (1993); Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Inasmuch as Nicholson had successfully traversed the allegedly hazardous ramp just minutes before and knew that rainwater was dripping onto the ramp, the trial court did not err in granting summary judgment to Pike. Souder, 210 Ga. App. at 292 (1).

2. In light of our determination in Division 1, we need not reach the Nicholsons' remaining enumerations of error.

Dermer & Black, Stephen F. Dermer, for appellee.

1997

Notes:

1. James A. Nicholson sued for loss of consortium.

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