I will start out by saying the truth; I don’t generally like curb trip cases. Curbs are a necessary part of roadway and sidewalk design and we have all been negotiating them since we were children. The sloped alternative would be worse from a drainage and car safety perspective. Trips over permanent feature cases are referred to as “static defect” cases in Georgia. Static because they stay put and defect is clear enough.
When it comes to the law, they are very tough cases to recover on unless the landlord maintains a “stupid condition.” Solid and legitimate static defect trip and fall cases must satisfy the “WWTT” test. That stands for What Were they Thinking. Basic curbs, even when they are not painted yellow just do not satisfy that test.
Lets discuss what happened in the case of McLemore v. Genuine Parts Co.,
313 Ga. App. 641 (2012) as it is a good example of the basics of the law in these types of cases. As with all premises liability cases, the basis is the landowner knows their land and buildings better than the visitor. This is referred to as “superior knowledge.” If the visitor knows of the defect too, they usually cannot take their case to a jury. In this case, the curb was unnaturally high.
The appellate court gives a good explanation of the logic; “As we noted in Wright v. JDN Structured Finance, [o]ccupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel… in everyday life, persons are required to negotiate floors, steps[,] and doorways. Even if the curbed sidewalk was hazardous, the condition was open and obvious, and thus, in the exercise of ordinary care, [Evelyn] could have avoided it. There is no duty to warn of the obvious.”
Note the court’s use of the word “trifling”, a delightfully effective term in this context. Trifling defects are complained of by trifling people. It’s the court’s way of saying, a curb does not pass the WWTT test.
Another interesting aspect of this appellate case is the discussion of the “distraction theory.” In short, this argument is used to get around summary judgment on the issue of whether an alleged hazard is open and obvious. The distraction theory can apply where the fallen is distracted by a condition that the defendant caused or should have expected. Wavy fan man at a car dealership. Blue light special lights rotating, etc.
In the instant case, the court said even if there is the distraction of lots of people, there is still plenty of opportunity to see the alleged hazard. Watch your step, look where you are going and use due care. Trip and fall cases are tough to win so remember our test. If you cannot say WWTT, then it is probably a long shot case.