Limitations of Georgia’s Prior Traversal Rule
Central to Georgia premises liability law is the requirement a landowner or occupier (usually businesses) have superior knowledge of a hazardous condition in order to be liable for accidents and injuries resulting from them. Perkins v. Val D’Austa Co., 305 Ga. App. 126, 128 (2010). When an invitee has actual knowledge of the dangerous condition from previously traversing the hazard before a slip, trip or fall, their knowledge is equal to that of the landowner or occupier and thus eliminates a proprietor’s duty to warn. Id. However, the prior traversal rule relied upon by proprietors has some limitations and requires a close examination of the facts, particularly with respect to the plaintiff’s actual path just before the slip, trip or fall.
Georgia courts have held the prior traversal rule only applies to cases involving a static condition that is readily discernible to a person exercising reasonable care for his own safety. Moreover, it is the plaintiff’s knowledge of the specific hazard precipitating a trip and fall that is determinative — not merely knowing of the generally prevailing hazardous conditions or of hazardous conditions which a plaintiff observes and avoids. Brixmor New Chastain Corners SC v. James, 884 S.E.2d 393 (2023), quoting Cocklin v. JC Penny Corp., 296 Ga. App. 179, 182 (2009). In Brixmor, the court of appeals reversed summary judgment, noting the evidence was not sufficient to find the plaintiff had actual knowledge of the specific hazard (parking bumpers) on which she tripped, as her testimony was she previously walked within close proximity of the parking bumpers but she was not certain she took the same route when she returned to the car. Id. at 397. The court reasoned “[a] reasonable juror would be entitled to find that [James] did not precisely retrace her exact path, step by step, from earlier in the evening when she returned to her vehicle.” Id. As such, there were sufficient issues to bring before a jury.
The court similarly applied this reasoning in Landrum v. Enmark Stations, Inc., 310 Ga. App. 161 (2011). In Landrum, the court reversed summary judgment to a frequent, longstanding customer of a gas station who tripped on broken pavement. The customer had visited the property many times and walked on the pavement before, but the court of appeals reasoned there was no evidence that the customer had previously walked directly over the particular piece of broken pavement that caused her fall. The court of appeals held a person is presumed to have actual knowledge of a hazardous condition only where she has successfully negotiated the alleged dangerous area on a previous occasion. Id. at 164, citing Bullard v. Marriott Int’l, Inc., 293 Ga. App 679, 681 (2008).
In Bullard, the court of appeals also reversed summary judgment to a hotel customer who fell on a brick walkway. Id. Bullard had lived at the hotel for years, routinely walked on the brick patio and even knew some of the bricks were uneven. In reversing summary judgment, the court concluded there was no evidence the customer had walked on the particular brick that caused her fall. Id. at 681-82.
These cases and the court’s rationale provide guidance on evaluating the applicability and strength of the prior traversal rule in defending premises liability cases. It is not enough that a person must be familiar with the area or that a person has traversed the general area containing the alleged hazard. When evaluating whether the prior traversal rule can eliminate a plaintiff’s recovery, or be the basis of a motion for summary judgment, it is important to gather as much specific and detailed information about the injured person’s path of travel, their knowledge of the alleged hazard, when a person learned about the existence of the hazard and how often they traversed the specific hazard (i.e., ramp, step, stair or parking lot). By obtaining this information early via an examination under oath or a recorded statement, a proprietor may escape liability without undergoing the stress of lengthy litigation.
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