In this static defect case, Mae Francis Delk, plaintiff below, appeals the grant of defendant’s motion for summary judgment on her negligence claim against QuikTrip Corporation for personal injuries suffered when she twisted her foot on a raised gas storage tank cover while traversing a store parking lot. Delk contends there is a genuine issue of fact as to whether she exercised reasonable care for her own safety because rain and heavy traffic constituted a distraction. For the following reasons set forth below, we affirm.
In reviewing the grant of summary judgment, we construe the evidence in favor of the nonmovant and conduct a de novo review
Following payment for her gasoline, Delk exited the store traveling essentially the same path back to her car through the parked cars and across the traffic lanes. The rain was a little heavier than when she entered the store, but it was not heavy. As she crossed the wet parking lot, she stepped on one of the raised gas caps which was not flush with the pavement, twisting her left foot and injuring it. Although the gas cap on which she stepped was raised, it was not crooked or loose and had nothing protruding from it or covering it. Although she twisted her foot, Delk did not fall and continued walking to her car. Upon arriving home, Delk found the injury to be painful and went to an emergency room for treatment. She later filed suit against QuikTrip for the injuries to her foot.
Delk had knowledge of the gas caps prior to her injury, testifying that the gas caps were obvious even though some were raised and some were flush and some caps were lighter in color than others. During her visits to the station three to four times a week over a number of years, the location of the gas caps had not changed, but the number of pump islands had been increased, a fact which made it more likely that customers would walk across the gas caps before entering the station.
Owners or occupiers of land are liable to their business customers for injuries caused by the owners’ failure to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1. However, they are not insurers of their safety. Instead, “[t]he basis of liability of an owner to an invitee who is injured is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Citations, punctuation and emphasis omitted.) Globe Oil Co., USA v. DeLong. 2 Moreover, when the alleged dangerous condition is a static defect, a person is presumed to have knowledge of it when that person has successfully negotiated the alleged dangerous condition on a previous occasion and, therefore, cannot recover for a subsequent injury. Christensen v. Overseas Partners Capital. 3
Delk does not dispute that the gas caps were a static defect or that she had knowledge about the existence of the area of raised and flush gas caps, but argues that the rain and the heavy vehicular traffic in the station were distractions which create an issue of material
fact as to whether she exercised ordinary care for her own safety. Although under certain circumstances we have recognized that vehicular traffic may be a significant distraction for a pedestrian-invitee, in
Yasinsac v. Colonial Oil Properties,
4
Delk cites Shackelford v. DeKalb Farmer’s Market 5 and Hamilton v. Kentucky Fried Chicken &c. 6 c ontending that the distraction theory may apply even though the invitee had prior actual knowledge of the existence of the defective condition. Both cases are distinguishable. In Shackelford, supra, there was no evidence that the plaintiff had traversed the alleged hazard prior to her injury, and in Hamilton, supra, although the invitee had walked over the alleged hazard, it was under different circumstances, i.e., in daylight rather than nighttime. In the present case Delk safely traversed a similar path through the traffic and across the alleged hazard under the same conditions of rain and traffic immediately prior to her injury. Moreover, there was no evidence that Delk had to unexpectedly dodge any car, but only had to wait for cars normally passing through the traffic lanes and in and out of the parking spaces. Although issues of fact as to the exercise of ordinary care are generally not susceptible of summary adjudication, summary judgment is proper when the evidence is plain, palpable, and undisputed, as in this case. Delk had actual knowledge of the allegedly hazardous condition which was equal to QuikTrip’s knowledge. Thus, QuikTrip did not have superior knowledge of the condition, and Delk cannot establish this element of her claim. Therefore, the trial court did not err in granting summary judgment. Robinson v. Kroger Co. 7
Judgment affirmed.
Notes
Lau’s Corp. v. Haskins,
Globe Oil Co., USA v. DeLong,
Christensen v. Overseas Partners Capital,
Yasinsac v. Colonial Oil Properties,
Shackelford v. DeKalb Farmer’s Market,
Hamilton v. Kentucky Fried Chicken &c.,
Robinson v. Kroger Co.,