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Can’t Sue Over Optical Illusion
by Ron Davis

A finding that a Georgia shopping center patron failed to exercise “reasonable care” for her safety has resulted in a court decision dismissing her slip-and-fall lawsuit against the center’s owner.

The patron broke her arm as a result of the fall at the shopping center–Robson Crossing, in Gainesville. That mishap, she claimed, was caused by a defect during construction of the shopping center. So she sued not only the shopping center owner, but also the developer-manager and the builder of the facility.

Details in the case show that the woman’s fall occurred early one evening in the shopping center parking area. She parked her car there to visit a tenant store and took a shortcut across a grassy median in the parking lot to reach the store.

The side of the median where she gained access has a curb that is a normal six inches or so high, but the opposite side has a curb height measuring about 23 inches. And when she stepped down on that opposite side, she apparently failed to adjust for that added height and fell to the pavement.

She later admitted that nothing had prevented her from noticing the height of the curb, nor, she added, was she distracted at the time. She did claim, however, that the landscaped median created “an optical illusion,” so that the 23-inch curb appeared to be of normal height.

The woman appealed that decision.

A Georgia appellate court, in upholding the lower-court decision, explained, “The height of the curb was open and obvious and any hazard presented by it could have been avoided in the exercise of reasonable care.” (Pirkle v. Robson Crossing LLC, 2005 WL 613571 [Ga.App.])

Decision: March 2005
Published: April 2005



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