In this slip-and-fall premises liability case, plaintiff Ronald Houston appeals the trial court’s grant of summary judgment in favor of defendant Wal-Mart Stores East, L.P., and two of its employees, defendants Dawn Atkins and Tim Holt. Because the uncontroverted evidence shows that Houston had equal knowledge of the hazard that caused his fall, the trial court did not err in granting summary judgment to the defendants.
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). We review the grant of summary judgment de novo and view the evidence in the light most favorable to the nonmovant. Bank of North Ga. v. Windermere Dev.,
So viewed, the record reflects that at approximately 5:14 a.m. on September 18, 2009, Houston was shopping at a Wal-Mart store in Morrow, Georgia. While pushing his shopping cart through the meat section of the grocery department, Houston walked across some flattened cardboard boxes that had been left on the floor by an employee who had been restocking shelves earlier that morning. Seconds after walking across the flattened boxes, Houston turned around without his cart and began walking back over the same boxes on his way to the other side of a freezer. As he did so, Houston slipped on the boxes and fell to the ground, injuring himself.
Houston subsequently brought this premises liability action against Wal-Mart and two of its two employees, Atkins and Holt, who had been working at the store on the morning of the incident. Following discovery, the defendants moved for summary judgment. The slip-and-fall incident had been captured by one of the store’s security cameras, and the defendants relied upon a DVD recording of the camera footage and screenshots taken from the footage to support their motion. The defendants also relied upon Houston’s deposition testimony in which he admitted that he had seen the flattened cardboard boxes lying on the floor, that he had walked across the boxes once without incident, and that he slipped and fell on the same boxes as he walked back over them.
After reviewing the record and hearing oral argument from the parties, the trial court granted summary judgment in favor of the defendants, concluding that the uncontroverted evidence showed that Houston had equal knowledge of the hazard — i.e., the flattened cardboard boxes lying on the store floor — that had caused his fall. The trial court further concluded that there was no evidence that either Atkins or Holt caused or contributed to Houston’s accident. This appeal followed.
1. We conclude that the trial court committed no error in granting summary judgment to the defendants on the ground that Houston had equal knowledge of the hazard that caused his fall.
a plaintiff must show that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner’s control. However, the plaintiff’s evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably, and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.
(Citation and punctuation omitted.) LeCroy v. Bragg,
While there was evidence that Wal-Mart had actual or constructive knowledge of the flattened cardboard boxes on the floor, the uncontroverted evidence shows “plainly, palpably, and without dispute” that Houston had equal knowledge of the presence of the boxes before he slipped and fell on them. As previously noted, during his deposition, Houston admitted that he had seen the boxes on the floor, walked across the boxes once without any problem, and then slipped and fell on the boxes when he chose to walk back over them to get to the other side of a freezer.
Furthermore, when a person has successfully negotiated a dangerous condition on a previous occasion, he “is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting from the hazard.” El Ranchero Mexican Restaurant, No. 10 v. Hiner,
Houston argues, however, that even if he was generally aware of the hazard posed by the flattened cardboard boxes, he was distracted at the time of his fall because he was looking at merchandise in a freezer. “But the distraction doctrine does not apply where the plaintiff had actual knowledge of the hazard before the alleged distraction occurred,” as the uncontradicted evidences shows was the situation in this case. Ponder,
For these combined reasons, the trial court did not err in concluding that Houston’s knowledge of the hazard that caused his fall was equal to that of the defendants’ knowledge. Houston thus could not succeed on his premises liability claim, and the defendants were entitled to summary judgment. While “routine issues of premises liability . . . are generally not susceptible of summary adjudication,” the grant of summary judgment nevertheless is appropriate in cases like the present one where “the evidence is plain and palpable that the defendants are not liable.” (Citations and punctuation omitted.) LeCroy,
2. In light of our decision in Division 1, we need not separately address whether the trial court erred in concluding that there was no evidence that either Atkins or Holt caused or contributed to Houston’s accident.
Judgment affirmed.
Notes
During his deposition, Houston initially claimed that he slipped and fell on a piece of white paper rather than on the flattened cardboard boxes. But, after reviewing the DVD recording and screenshots of the incident, Houston conceded later in his deposition that there was no white paper present and that he had slipped on the cardboard. In his subsequently filed brief opposing the defendants’ motion for summary judgment, Houston did not dispute that he slipped on the flattened cardboard boxes.
Houston maintains that he “was clearly confused during his deposition regarding the questions posed by [the defendants’] counsel pertaining to whether or not he saw the boxes on the ground . . . before he traversed them.” But there is nothing in Houston’s deposition transcript or otherwise in the record supporting his claim that he was somehow confused during his questioning. At the beginning of his deposition, defense counsel instructed Houston to let her know if he did not understand any of her questions, but Houston never indicated any lack of understanding regarding the questions posed to him that are at issue here. Furthermore, Houston did not file an errata sheet after his deposition stating that he was confused about any question or submit a supplemental affidavit in opposition to summary judgment in which he alleged that he had been confused. Thus, there is simply no evidence of confusion that can be gleaned from the record.
The present case is distinguishable from cases where there was evidence that the plaintiff lacked knowledge of a difficult-to-see article lying on the floor of the defendant’s store before slipping or tripping over it. See, e.g., Brown v. Wal-Mart Stores,