Bryant v. DIVYA, INC.

628 S.E.2d 163 (2006)

278 Ga. App. 101

BRYANT v. DIVYA, INC.

No. A06A0807.

Court of Appeals of Georgia.

March 7, 2006.

Callaway, Braun, Riddle & Hughes, R. Kran Riddle, Savannah, for appellant.

R. Stephen Sims, Springfield, for appellee.

BLACKBURN, Presiding Judge.

In this slip and fall action, plaintiff, Judith Bryant, appeals the trial court's order granting summary judgment to defendant, DIVYA, *164 Inc. Because we discern no breach of duty, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp.[1]

Viewed in this light, the record shows Bryant and her companion checked into a motel room at a Sleep Inn owned by DIVYA just outside of Savannah. Before retiring for the evening, Bryant decided to take a shower. The shower at the Sleep Inn consisted of a stall, rather than a bathtub and shower head, with a safety bar on the back wall and several anti-skid strips on the floor. Bryant entered the stall before turning on the water, and although she did not notice the anti-skid strips at the time, she testified that the shower floor was dry and not slippery. In fact, she further testified that even turning on the water did not cause the shower floor to become slippery. After turning on the water, she began using the soap, which she stated caused the shower floor to become slippery. Consequently, Bryant slipped and fell, seriously injuring her right arm.

Bryant sued DIVYA, contending that her injury was caused by DIVYA's negligence in failing to install enough anti-skid strips to the shower floor, failing to properly position the existing anti-skid strips, and failing to properly position the shower's safety bar. She specifically argued that the anti-skid strips were not placed close enough together to prevent her from slipping and that the safety bar was useless because it was placed at the back of the shower where she could not reach it to prevent her fall. DIVYA moved for summary judgment, arguing that because no other patrons had ever been injured from slipping and falling in any of the motel's showers, it had no actual or constructive knowledge of any hazard associated with the showers. The trial court agreed and granted DIVYA summary judgment. This appeal followed.

In her sole enumeration of error, Bryant contends that the trial court erred in granting summary judgment to DIVYA on the ground that it could not be held liable where it had no knowledge of any hazardous condition associated with the motel's showers. We disagree. An owner or occupier of land has a statutory duty to keep its approaches and premises in a reasonably safe condition for invitees.[2] "But an owner or occupier of land is not an insurer of the safety of its invitees." Lee v. Food Lion.[3] See Pound v. Augusta Nat.[4] Rather,

[i]n premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor. The true basis of a proprietor's liability for personal injury to an invitee is the proprietor's superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. Recovery is allowed only when the proprietor had knowledge and the invitee did not.

(Emphasis supplied.) Emory Univ. v. Smith.[5] See also Christensen v. Overseas Partners Capital;[6]Pierce v. Wendy's Intl.[7]

In this case, Bryant failed to demonstrate that the shower floor in DIVYA's motel presented any hazard whatsoever and thus summary judgment was properly granted. See Sudduth v. Young;[8]Emory Univ., supra at 902, 581 S.E.2d 405. Bryant did not allege *165 that any transient foreign substance on the shower floor caused her fall, other than the soap she herself used. She testified that the shower floor was not slippery when dry or even after she turned on the water. In addition, Bryant did not offer any expert testimony contending that the shower floor was hazardous, nor did she provide evidence that the shower violated safety codes. In fact, Bryant presented no competent evidence that the shower floor or bar was hazardous other than her fall and her and her companion's testimony that they believed the anti-skid strips and safety bar were inadequate. Mere speculation, however, is not enough to defeat summary judgment. See Emory Univ., supra at 902, 581 S.E.2d 405; Mansell v. Starr Enterprises/Texaco.[9]

Moreover, even assuming arguendo that the shower floor in DIVYA's motel presented a hazardous condition, Bryant failed to show that DIVYA possessed superior knowledge of this potential harm. See Emory Univ., supra at 901, 581 S.E.2d 405. Here, as previously mentioned, Bryant did not offer any evidence indicating that the shower violated any safety codes and therefore could not establish DIVYA's negligence per se. See Hubbard v. Dept. of Transp.;[10]Steele v. Rosehaven Chapel, Inc.[11] Furthermore, DIVYA offered undisputed evidence that prior to Bryant's accident, it had never received any reports or complaints of guests slipping in the motel's showers. Thus, Bryant failed to show that DIVYA had superior knowledge of the alleged hazard. See Sudduth, supra; Emory Univ., supra at 901-902, 581 S.E.2d 405; Steele, supra at 854-855, 505 S.E.2d 245. Accordingly, the trial court did not err in finding that DIVYA was entitled to summary judgment as a matter of law.

Judgment affirmed.

MIKELL and ADAMS, JJ., concur.

NOTES

[1] Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459(1), 486 S.E.2d 684 (1997).

[2] OCGA § 51-3-1.

[3] Lee v. Food Lion, 243 Ga.App. 819, 820, 534 S.E.2d 507 (2000).

[4] Pound v. Augusta Nat., 158 Ga.App. 166, 167, 279 S.E.2d 342 (1981).

[5] Emory Univ. v. Smith, 260 Ga.App. 900, 901, 581 S.E.2d 405 (2003).

[6] Christensen v. Overseas Partners Capital, 249 Ga.App. 827, 828, 549 S.E.2d 784 (2001).

[7] Pierce v. Wendy's Intl., 233 Ga.App. 227, 230(2), 504 S.E.2d 14 (1998).

[8] Sudduth v. Young, 260 Ga.App. 56, 58(1), 579 S.E.2d 7 (2003).

[9] Mansell v. Starr Enterprises/Texaco, 256 Ga. App. 257, 259, 568 S.E.2d 145 (2002).

[10] Hubbard v. Dept. of Transp., 256 Ga.App. 342, 349-350(3), 568 S.E.2d 559 (2002).

[11] Steele v. Rosehaven Chapel, Inc., 233 Ga.App. 853, 854, 505 S.E.2d 245 (1998).