Aggeles v. Theater of the Stars, Inc.

Smith, Judge. Elizabeth Ann Aggeles brought this action against Theater of the Stars, Inc. and Atlanta Landmarks, Inc. seeking damages for injuries she sustained when she fell while descending a stairway at the Fox Theatre (the theater). The trial court granted summary judgment to the theater, and this appeal ensued. Because the alleged hazard was open and obvious, we affirm. 1. The crux of Aggeles’s claim is that the handrail she used as she descended the stairs constituted a hazardous condition about which the theater negligently failed to warn invitees. We conclude that the trial court correctly granted summary judgment to the theater because the alleged hazard was an open, obvious, and static condition, “ ‘and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.’ [Cit.]” MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420) (1996). See also Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811 (440 SE2d 545) (1994). Just prior to her fall, Aggeles had successfully ascended the stairs using the right handrail. She descended the same stairway by traveling down the opposite side of the stairway, again using the handrail on her right. It is undisputed that the handrails on either side of the staircase are identical in their placement on the wall in relation to the stairs. Although Aggeles testified in her affidavit submitted in opposition to summary judgment that the stairway was inadequately lit, this testimony contradicted her earlier deposition testimony that she had no problem seeing as she ascended the stairs and that the lighting as she descended the stairs was no different than the lighting as she walked up the stairs. No explanation appears for this contradictory testimony found within Aggeles’s affidavit, and we will therefore not consider it. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). As for the expert affidavit submitted by Aggeles reciting that the stairway was inadequately lit, that conclusory affidavit does not contradict Aggeles’s testimony that she personally had no problem seeing, regardless of the expert’s opinion of the lighting inside the theater. As the trial court concluded, it is clear that “the ending of the handrail five or six steps before the ending of the . . . staircase is an obvious and patent danger which plaintiff could have observed and avoided by the exercise of ordinary care.” Consequently, Aggeles cannot recover. See Fife, Gaydos, supra. We note Aggeles’s reference to her daughter’s testimony that the theater manager acknowledged to her that the theater was “very, [228] very dark” and that other people had fallen the same evening on which Aggeles’s fall occurred. These alleged statements by an agent of the theater do not create a material issue of fact. Even considering the agent’s opinion concerning the lighting, Aggeles herself testified on deposition that the lighting on the staircase was adequate to enable her to see. As for the agent’s alleged statement that other people had fallen that evening, no evidence was presented that those people fell on the staircase, that their falls occurred in a similar fashion, or that the theater had knowledge of those falls prior to Aggeles’s fall. See Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 262-263 (427 SE2d 547) (1993). Although it is true that the record contains an incident report concerning another individual who fell on the stairway while descending “from the mezzanine on the right hand staircase,” the report is silent as to the cause of her fall. And in fact, the manager testified by affidavit that during the more than six years he had been employed as house manager, no falls allegedly caused by defects in the railing had occurred on the stairway where Aggeles fell. 2. Aggeles also attempts to impose liability on the theater by pointing to the theater’s alleged failure to comply with certain building code regulations. In response to the theater’s motion for summary judgment, Aggeles submitted the affidavit of an expert who testified that in her opinion “there were two causes of the fall. The first cause . . . was probably a misstep which was caused by the irregularity in the measurements of the treads and risers which led to gait abnormalities.” The expert went on to state that the treads and risers violated the Standard Building Code. The second cause of the fall, according to the expert, “was the lack of a handrail,” also in violation of the Standard Building Code. The expert then stated that “several other factors . . . increased the likelihood of a fall on those stairs at that particular location,” including allegedly inadequate lighting, and “lack of a defined nosing on the treads.” According to the expert, “[wjithout a defined nosing it is difficult to detect where one step ends and another begins.” This testimony is not persuasive. First, in response to the affidavit, the theater submitted undisputed evidence that its status as a historic landmark exempts it from such regulations.1 Second, the expert’s testimony that Aggeles “probably” fell due to a combination [229] of certain defects is mere conjecture. “[W]hile this witness may have been in a position to testify that the stairway was defective [she] clearly was in no better position than the plaintiff to form an opinion as to whether her fall was caused by one of these defects. Consequently, [the expert’s] opinion in this regard must, under the circumstances, be considered wholly speculative and without probative value.” Boyd v. Garden Center, 197 Ga. App. 198, 200 (2) (397 SE2d 626) (1990). We note Aggeles’s argument, despite undisputed evidence that the theater is exempt from building code regulations, that the theater should be liable because the lighting and handrails on the stairway could have been improved and warning signs “that would warn invitees of the abruptly ending handrails and the uneven treads and risers,” could have been placed on or near the staircase. These arguments are without merit. Even assuming that the stairway could have been improved in the manner suggested by Aggeles without violating Interior Department guidelines, such improvement was not required. Moreover, it is not disputed that Aggeles successfully ascended the stairs only moments before descending them and that she testified the lighting was adequate for her to see as she walked. It is further undisputed, as evidenced by Aggeles’s own argument, that another means of descending the stairs was available to her; she could have used the center railing, which did extend to the bottom of the staircase. Nothing in the record suggests that she was precluded by the theater from using this portion of the stairway. Despite her arguments, Aggeles cannot recover. Judgment affirmed. Andrews, C. J., Birdsong, P. J, Beasley and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent. Footnotes [1] According to the theater’s expert, the staircase “is a character defining feature of the Fox Theater as defined by The Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. ... As such, the standards mandate that all of the features of [the staircase], including the treads, risers and handrails, must be preserved in their original form, in spite of the fact that they do not comply with the Standard Building Code.”