344 Ga. App. 417
Ga. Ct. App.2018Background
- Marjary Dianne Leavins (guest) slipped and fell in a hotel bathtub at the Quality Inn in Fitzgerald, GA on July 28, 2013; she suffered injury while showering.
- Leavins and her daughter had requested a ground-floor or accessible room due to Leavins’s rheumatoid arthritis but accepted a room up two flights when none were available.
- At deposition Leavins testified the tub was dry and appeared clean before she turned on water and began soaping; she then slipped and fell; she had no opinion why the tub was slippery and offered no expert proof that the tub itself was defective.
- Leavins’s daughter testified she observed water in the tub after the fall and that the tub felt "very slick," but she did not identify any foreign substance or code violation that caused the slipperiness.
- Hotel produced evidence that the tub had built-in hand bar and raised bumpy area, no prior guest complaints of slip-and-fall in tubs, and hotel cleaning/inspection procedures; also showed the applicable DPH anti-slip rule did not take effect until Jan. 1, 2014.
- Trial court granted summary judgment to hotel defendants; Court of Appeals affirmed, holding plaintiff failed to show an unreasonable risk or proprietor’s superior knowledge and the cited regulation was not yet effective.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence per se under DPH tub anti-slip rule | Leavins: hotel violated rule requiring anti-slip strips/mats, so negligence per se | Hotel: cited rule was not in effect on July 28, 2013 | Held: Rule became effective Jan. 1, 2014; negligence per se claim fails |
| Premises liability (owner/occupier duty to invitees) — existence of hazardous condition | Leavins: tub was slippery/slick and defendants breached duty to keep premises safe | Hotel: fall was caused by common water+soap transient condition from plaintiff’s use; no evidence tub was unreasonably hazardous | Held: Mere fall plus testimony insufficient; no competent evidence of unreasonable risk; summary judgment proper |
| Proprietor’s superior or constructive knowledge | Leavins: defendants should be charged with constructive knowledge; inspection dispute creates triable issue | Hotel: no prior complaints; policies in place; even if inspection disputed, no evidence of unreasonable risk to be discovered | Held: Even assuming inspection dispute, without proof of unreasonable risk or causal defect, knowledge is immaterial; summary judgment stands |
| Requirement of expert or other proof to defeat summary judgment | Leavins: lay testimony that tub was slick suffices to create factual dispute | Hotel: plaintiff needed more than speculation — expert or evidence of defect/code violation | Held: Court agreed with hotel — lay belief/speculation insufficient; expert or other competent evidence required to show unreasonable hazard |
Key Cases Cited
- Bryant v. DIVYA, 278 Ga. App. 101 (court affirmed summary judgment where guest slipped after turning on water and soaping; no evidence of hazardous condition beyond fall)
- Dickerson v. Guest Servs. Co., 282 Ga. 771 (proprietor may be liable only if it had superior knowledge of an unreasonable risk)
- Lau’s Corp. v. Haskins, 261 Ga. 491 (if plaintiff lacks evidence on an essential element, other disputes are immaterial)
- Paggett v. The Kroger Co., 311 Ga. App. 690 (speculation about substance on surface insufficient to create genuine issue)
- Griswold v. Collins, 318 Ga. App. 556 (recovery under negligence per se requires plaintiff be within protected class and violation in effect)
- Pennington v. WJL, Inc., 263 Ga. App. 758 (no recovery where plaintiff cannot prove exposure to unreasonable risk on premises)
- Chastain v. CF Ga. North DeKalb, 256 Ga. App. 802 (no inference of discovery where defect could not have been found in reasonable inspection)
- Lee v. Food Lion, 243 Ga. App. 819 (mere occurrence of injury does not create presumption of negligence)
- Oliver v. Columbia Sussex Corp., 391 Fed. Appx. 840 (applying Georgia law to affirm summary judgment where guest’s speculation about tub surfacing or cleaning solution was unsupported)