THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
April 28, 2023
In the Court of Appeals of Georgia A23A0607. GUTIERREZ v. SIX FLAGS OVER GEORGIA II, LLP.
GOBEIL, Judge.
Rosalinda Gutierrez appeals after the trial court granted Six Flags Over
Georgia II, LLP’s (“Six Flags”) motion for summary judgment in Gutierrez’s
negligence action after she slipped and fell in Six Flags’s parking lot. For the reasons
set forth below, we affirm the trial court’s order.
“We apply a de novo standard of review to an appeal from the grant of
summary judgment, viewing the evidence and all reasonable conclusions and
inferences drawn from it in favor of the opponent of summary judgment.” Wentworth
v. Eckerd Corp., 248 Ga. App. 94, 94 (545 SE2d 647) (2001). So viewed, the evidence shows that Gutierrez visited Six Flags on July 22,
2018, accompanied by her two daughters and grandson. As she was walking toward
the park’s entrance, she “fell to the ground, striking her head and other body parts on
the concrete.” As later documented in photographs, there was a crack in the pavement
of the walkway Gutierrez was using to enter the park that created a lip on which she
tripped. Because the area where the crack was located was at an elevation
change/surface transition in the walkway, pre-existing yellow paint was present over
the walkway where the crack had formed.
Gutierrez sued Six Flags for negligence, alleging that Six Flags’s constructive
and/or actual knowledge of the dangerous condition caused by the crack, along with
its failure to remedy the allegedly dangerous condition, constituted a breach of the
duty Six Flags owed to Gutierrez as its invitee. She alleged that as a result of the fall,
she suffered “serious and permanent injuries,” including a concussion, a left knee
meniscus tear, and other injuries to her back and neck.
In her deposition, Gutierrez testified that as she was walking into the park, her
daughters and her grandson were walking in front of her. She stated that it was not
2 overly crowded,1 and she was not distracted while walking; she was looking straight
ahead and wearing appropriate footwear for the occasion. She could not recall seeing
the crack before falling down. Her daughters helped her up after the fall, and she went
to the park’s medical station.
Six Flags’s corporate representative testified that the company’s safety policies
mandate that employees report to a supervisor any worn, loose, uneven, or broken
walkway surfaces. Indeed, an audit report from the day of Gutierrez’s fall showed that
a Six Flags employee had inspected the property that day. Although the audit report
noted “potholes” in the parking lot, the walkways were marked as “safe” by the
employee.
After a hearing on Six Flags’s motion for summary judgment, a transcript of
which does not appear in the record, the trial court granted summary judgment to Six
Flags. First, the trial court determined that the dispositive issue was “whether the
crack and condition of the pavement was ‘readily discernible’ to someone exercising
reasonable care for her own safety.” Because the crack in the sidewalk was a static
condition and Gutierrez was not obstructed from seeing it, the court deemed Gutierrez
1 One of Gutierrez’s daughters gave conflicting testimony on this issue. According to her testimony, “that day was so crowded” with a “lot of people . . . just right together” that “were just pushing . . . to get into Six Flags.”
3 to have at least equal knowledge of the hazard as Six Flags, and she therefore was not
entitled to recover damages for her injuries. Gutierrez appealed.
1. In related claims of error, Gutierrez challenges the trial court’s finding that
the condition that caused her fall was open and obvious, thus imputing knowledge of
the hazard onto her and implicitly finding that it could have been avoided with the
exercise of ordinary care.
In Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997),
our Supreme Court held that “in order to recover for injuries sustained in a slip-and-
fall action, an invitee must prove (1) that the defendant had actual or constructive
knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard
despite the exercise of ordinary care due to actions or conditions within the control
of the owner/occupier.” Id. at 748 (2) (b). An “open and obvious” condition invokes
the “plain view doctrine,” whereby constructive knowledge is imputed if an invitee
confronts “a hazard in plain view at a location where it is customarily found and can
be expected to be, but which the invitee professes not to have seen prior to the fall.”
Id. 268 Ga. at 743 (1).
Gutierrez does not contest that the condition that caused her fall was static.
Indeed, an uneven walkway is the quintessential example of a static condition. D’Elia
4 v. Phillips Edison & Co. Ltd., 354 Ga. App. 696, 698 (839 SE2d 721) (2020).
Gutierrez instead argues that whether the hazardous condition was open and obvious
is a question that should have been left to a jury. We disagree. Gutierrez is correct
that summary judgment is appropriate only where the “factual evidence is plain,
palpable, and undisputed.” LeCroy v. Bragg, 319 Ga. App. 884, 886 (1) (739 SE2d
1) (2013). However, the record in her case leaves nothing for a jury to decide.
A static condition may be deemed open and obvious “[i]f nothing obstructs the
invitee’s ability to see the static condition, [because] the proprietor may safely assume
that the invitee will see it and will realize any associated risks.” Rentz v. Prince of
Albany, 340 Ga. App. 388, 390 (1) (797 SE2d 254) (2017) (citation and punctuation
omitted). Here, the evidence showed that the condition in question was out in the
open, with nothing to obstruct Gutierrez’s view of it. Further, because it was located
at the transition between surfaces, it was highlighted in yellow paint which could only
increase its visibility. Thus, where the “static condition is apparent,” or open and
obvious, “such that one looking ahead would necessarily see it, an invitee’s failure
to look will not relieve her from the responsibility for her misadventure.” Coral
Hospitality-GA, LLC v. Givens, 363 Ga. App. 664, 665 (871 SE2d 325) (2022)
(citation and punctuation omitted); see also James v. Sirmans, 299 Ga. App. 262, 263
5 (683 SE2d 354) (2009) (reiterating that “small cracks, holes and uneven spots” in
pavement are common and, where nothing obstructs or interferes with a person’s
ability to see such a defect, “the owner or occupier of the premises is justified in
assuming that a visitor will see it and realize the risk involved”) (citation and
punctuation omitted). Under these longstanding principles of Georgia law,
Gutierrez’s knowledge of the hazard is imputed and she cannot recover from injuries
as a result of her failure to see it.2
2. Gutierrez also argues that the distraction doctrine may serve to negate any
knowledge imputed to her by the open and obvious nature of the condition at issue.
She argues that (1) her family members walking in close proximity to her, (2) a roller
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THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
April 28, 2023
In the Court of Appeals of Georgia A23A0607. GUTIERREZ v. SIX FLAGS OVER GEORGIA II, LLP.
GOBEIL, Judge.
Rosalinda Gutierrez appeals after the trial court granted Six Flags Over
Georgia II, LLP’s (“Six Flags”) motion for summary judgment in Gutierrez’s
negligence action after she slipped and fell in Six Flags’s parking lot. For the reasons
set forth below, we affirm the trial court’s order.
“We apply a de novo standard of review to an appeal from the grant of
summary judgment, viewing the evidence and all reasonable conclusions and
inferences drawn from it in favor of the opponent of summary judgment.” Wentworth
v. Eckerd Corp., 248 Ga. App. 94, 94 (545 SE2d 647) (2001). So viewed, the evidence shows that Gutierrez visited Six Flags on July 22,
2018, accompanied by her two daughters and grandson. As she was walking toward
the park’s entrance, she “fell to the ground, striking her head and other body parts on
the concrete.” As later documented in photographs, there was a crack in the pavement
of the walkway Gutierrez was using to enter the park that created a lip on which she
tripped. Because the area where the crack was located was at an elevation
change/surface transition in the walkway, pre-existing yellow paint was present over
the walkway where the crack had formed.
Gutierrez sued Six Flags for negligence, alleging that Six Flags’s constructive
and/or actual knowledge of the dangerous condition caused by the crack, along with
its failure to remedy the allegedly dangerous condition, constituted a breach of the
duty Six Flags owed to Gutierrez as its invitee. She alleged that as a result of the fall,
she suffered “serious and permanent injuries,” including a concussion, a left knee
meniscus tear, and other injuries to her back and neck.
In her deposition, Gutierrez testified that as she was walking into the park, her
daughters and her grandson were walking in front of her. She stated that it was not
2 overly crowded,1 and she was not distracted while walking; she was looking straight
ahead and wearing appropriate footwear for the occasion. She could not recall seeing
the crack before falling down. Her daughters helped her up after the fall, and she went
to the park’s medical station.
Six Flags’s corporate representative testified that the company’s safety policies
mandate that employees report to a supervisor any worn, loose, uneven, or broken
walkway surfaces. Indeed, an audit report from the day of Gutierrez’s fall showed that
a Six Flags employee had inspected the property that day. Although the audit report
noted “potholes” in the parking lot, the walkways were marked as “safe” by the
employee.
After a hearing on Six Flags’s motion for summary judgment, a transcript of
which does not appear in the record, the trial court granted summary judgment to Six
Flags. First, the trial court determined that the dispositive issue was “whether the
crack and condition of the pavement was ‘readily discernible’ to someone exercising
reasonable care for her own safety.” Because the crack in the sidewalk was a static
condition and Gutierrez was not obstructed from seeing it, the court deemed Gutierrez
1 One of Gutierrez’s daughters gave conflicting testimony on this issue. According to her testimony, “that day was so crowded” with a “lot of people . . . just right together” that “were just pushing . . . to get into Six Flags.”
3 to have at least equal knowledge of the hazard as Six Flags, and she therefore was not
entitled to recover damages for her injuries. Gutierrez appealed.
1. In related claims of error, Gutierrez challenges the trial court’s finding that
the condition that caused her fall was open and obvious, thus imputing knowledge of
the hazard onto her and implicitly finding that it could have been avoided with the
exercise of ordinary care.
In Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997),
our Supreme Court held that “in order to recover for injuries sustained in a slip-and-
fall action, an invitee must prove (1) that the defendant had actual or constructive
knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard
despite the exercise of ordinary care due to actions or conditions within the control
of the owner/occupier.” Id. at 748 (2) (b). An “open and obvious” condition invokes
the “plain view doctrine,” whereby constructive knowledge is imputed if an invitee
confronts “a hazard in plain view at a location where it is customarily found and can
be expected to be, but which the invitee professes not to have seen prior to the fall.”
Id. 268 Ga. at 743 (1).
Gutierrez does not contest that the condition that caused her fall was static.
Indeed, an uneven walkway is the quintessential example of a static condition. D’Elia
4 v. Phillips Edison & Co. Ltd., 354 Ga. App. 696, 698 (839 SE2d 721) (2020).
Gutierrez instead argues that whether the hazardous condition was open and obvious
is a question that should have been left to a jury. We disagree. Gutierrez is correct
that summary judgment is appropriate only where the “factual evidence is plain,
palpable, and undisputed.” LeCroy v. Bragg, 319 Ga. App. 884, 886 (1) (739 SE2d
1) (2013). However, the record in her case leaves nothing for a jury to decide.
A static condition may be deemed open and obvious “[i]f nothing obstructs the
invitee’s ability to see the static condition, [because] the proprietor may safely assume
that the invitee will see it and will realize any associated risks.” Rentz v. Prince of
Albany, 340 Ga. App. 388, 390 (1) (797 SE2d 254) (2017) (citation and punctuation
omitted). Here, the evidence showed that the condition in question was out in the
open, with nothing to obstruct Gutierrez’s view of it. Further, because it was located
at the transition between surfaces, it was highlighted in yellow paint which could only
increase its visibility. Thus, where the “static condition is apparent,” or open and
obvious, “such that one looking ahead would necessarily see it, an invitee’s failure
to look will not relieve her from the responsibility for her misadventure.” Coral
Hospitality-GA, LLC v. Givens, 363 Ga. App. 664, 665 (871 SE2d 325) (2022)
(citation and punctuation omitted); see also James v. Sirmans, 299 Ga. App. 262, 263
5 (683 SE2d 354) (2009) (reiterating that “small cracks, holes and uneven spots” in
pavement are common and, where nothing obstructs or interferes with a person’s
ability to see such a defect, “the owner or occupier of the premises is justified in
assuming that a visitor will see it and realize the risk involved”) (citation and
punctuation omitted). Under these longstanding principles of Georgia law,
Gutierrez’s knowledge of the hazard is imputed and she cannot recover from injuries
as a result of her failure to see it.2
2. Gutierrez also argues that the distraction doctrine may serve to negate any
knowledge imputed to her by the open and obvious nature of the condition at issue.
She argues that (1) her family members walking in close proximity to her, (2) a roller
coaster in view from the path on which she was walking, and (3) the other park
patrons all distracted her from seeing the sidewalk’s condition before she fell.
The distraction doctrine “holds that one is not bound to the same degree of care
in discovering or apprehending danger in moments of stress or excitement or when
2 Gutierrez also claims that the trial court erred in finding that the yellow paint on the walkway served as a sufficient warning of the existence of the hazard. However, Georgia law is clear that there is no duty to warn of static conditions that are open and obvious. Pirkle v. Robson Crossing, LLC, 272 Ga. App. 259, 262 (612 SE2d 83) (2005). Accordingly, based on our holding in Division 1, we need not address this claim of Gutierrez.
6 the attention has been necessarily diverted.” Robinson, 268 Ga. at 744 (2) (a) (citation
and punctuation omitted). Importantly, in this context, the term “necessarily” is
“synonymous with ‘automatically’ and ‘unavoidably.’” Weickert v. Home Depot
U.S.A., Inc., 347 Ga. App. 889, 895 (2) (a) (821 SE2d 110) (2018) (physical
precedent only). This doctrine “is not an independent theory of recovery but may
operate to excuse or negate a plaintiff’s failure to discover the hazard when the source
of the distraction is attributable to the defendant.” Wallace v. Nissan of Union City,
240 Ga. App. 658, 661 (2) (524 SE2d 542) (1999) (emphasis supplied).
Here, whether Gutierrez was walking too closely to her family or other patrons
to observe a crack in the sidewalk would be at most a distraction of her own making,
and thus not a basis for Six Flags’s liability. See Robinson, 268 Ga. at 744 (2) (a)
(collecting cases in which a self-induced distraction cannot serve to excuse an
invitee’s failure to observe an otherwise open and obvious condition). And, although
a business displaying attention-seeking merchandise or signage within view of
patrons navigating walkways may be considered distractions attributable to the
premises owner, see Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 430 (1)
(263 SE2d 171) (1979), we have clarified that this type of distraction raises a jury
question only where the invitee testifies (or presents “some evidence”) that they did
7 not see the hazard because of the distraction, Robinson, 268 Ga. at 745-746 (2) (a).
In the instant case, pretermitting whether or not a permanent structure such as a roller
coaster could be considered a distraction, Gutierrez testified that she was looking
ahead of her at the time of the fall, and made no mention of being distracted by the
presence of a roller coaster. Indeed, she testified explicitly that she was not distracted
at the time of the fall. Thus, any reference to such a distraction is mere speculation
and would not form the basis to deny summary judgment. See Faulkner v. Crumbley,
357 Ga. App. 594, 595 (851 SE2d 164) (2020) (“Guesses or speculation which raise
merely a conjecture or possibility are not sufficient to create even an inference of fact
for consideration on summary judgment.”) (citation and punctuation omitted).
Accordingly, Six Flags was entitled to summary judgment, and we affirm the trial
court’s order.
Judgment affirmed. Doyle, P. J., and Senior Appellate Judge Herbert E. Phipps
concur.