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Why Georgia Curb Trip and Fall Cases Are Challenging

July 07, 2014

Our Atlanta trip and fall attorneys at Montlick & Associates often receive inquiries from people who have been injured after tripping over a curb. These folks may have suffered significant injuries like broken bones, fractures, or other painful injuries. They often are frustrated because they have talked to other law firms, which have turned down the case with no explanation for the firm's decision. We understand the sense of unfairness that injury victims feel in this situation; therefore, we have used this blog to help explain why cases like these can often pose a tough challenge for injury victims.

When you trip negotiating a curb, this type of premises liability claim is referred to as a "static defect" case. This term essentially refers to the fact that the obstacle is a fixed object rather than a transitory hazard.  A curb is a predictable physical feature routinely located where the sidewalk adjoins the roadway or along the edges of a parking lot. Even if the sidewalk is not specially marked with yellow warning paint, the obstacle is normally too obvious and expected to seem anything but routine.

The case of McLemore v. Genuine Parts Co. provides a fairly instructive example of how cases involving falls on curbs are handled by Georgia courts. The plaintiffs, Evelyn and Bobbie McLemore, sued an auto parts store when Evelyn broke two ribs and her hip when she attempted to traverse the curb in the parking lot to enter the store. Although Evelyn indicated she saw the curb as she approached, she testified that the curb was abnormally high. She also testified that she would not have fallen if the curb had been a normal height. Mr. and Mrs. McLemore also indicated that they had been to the store on three or four prior occasions. When the trip and fall accident occurred, the store was hosting a tool show and cookout in the parking lot.

The plaintiffs introduced expert testimony from an engineer, indicating that the curb was defective and created a fall hazard. He also testified that the height of the curb constituted a violation of applicable building codes. He further averred that the store violated the Americans with Disabilities Act because it failed to maintain accessible features.

Despite the testimony of the plaintiffs' expert, the Court of Appeals upheld the trial court's decision to grant summary judgment for the auto store. The Court of Appeals ruled that the store had no duty to warn Evelyn about the curb because it was open and obvious. The Court pointed out that Evelyn admitted she had seen the curb before tripping so she had equal knowledge of the hazard. While the plaintiffs argued that the commotion from the tool show and cookout distracted their attention, this argument also was rejected because Evelyn admitted seeing the curb.  It is important to note that a different set of facts can result in a different outcome.

While the McLemore case demonstrates that success or lack of success in trip and fall cases  can be determined by subtle distinctions in the facts, even with expert testimony. The case might have turned out differently if Evelyn had not indicated she saw the curb prior to falling. When a defendant creates a distraction that prevents a person from noticing a hazard that would otherwise be open and obvious, this might excuse the failure of a plaintiff to successfully notice and avoid the hazard.

Put Our Law Firm's Over 39 Years of Legal Experience to Work For Your Case

Although static defect trip and fall cases can be difficult to win, our personal injury attorneys at Montlick & Associates have been successful in such cases in the past. Because these cases are so fact specific, call us or a free consultation to have a knowedgeable lawyer evaluate your claim. Our attorneys at Montlick & Associates have been representing those who suffer serious injuries throughout all of Georgia and the Southeast for more thirty years, including but not limited to Albany, Athens, Atlanta, Augusta, Columbus, Gainesville, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins, and all smaller cities and rural areas in the state. No matter where you are located, our attorneys are just a phone call away and we will even come to you. Call us 24 hours a day/7 days a week for your Free Consultation at 1-800-LAW-NEED (1-800-529-6333). You also can visit us online at and use our Free Case Evaluation Form or 24-hour Live Online Chat to request a time to meet.

Category: Personal Injury

Please Note:
All information provided by our blogs is general in nature and should not be relied upon as legal advice. Consult a Montlick attorney for details about your unique situation.