For example, let’s say a tenant has had security problems during his lease, and he and the landlord have discussed these concerns verbally. If the landlord sells the property after the tenant has signed The Tenant Estoppel, the tenant is probably in a position that he cannot complain or take legal action about similar concerns or problems to the new landlord, even though he thought he had already covered these issues with the previous landlord.  To give another common example, consider a verbal agreement in which the landlord has agreed to let a tenant use a nonstandard sign on the premises.  The tenant has been given verbal permission to put up an expensive new sign.  Yet when the new landlord arrives, he or she says “Take it down; it’s nonstandard.”  If the tenant signed The Tenant Estoppel Certificate, he must take the signage down, regardless of any verbal agreement with the old landlord.  If there was only a verbal modification in the lease but that amendment was not listed in the Tenant Estoppel Certificate, the new landlord can require the return to the standard signage.  That is why any amendment must be written and must be a part of the Estoppel before the tenant signs it.

A savvy tenant, on the other hand, can use these Tenant Estoppel Certificates as negotiating tools to perhaps get some of the repairs or maintenance issues addressed that had not previously been addressed to the tenant’s satisfaction.  Protect yourself and have a knowledgeable attorney read the language of your lease and any other papers you sign. 

The Georgia Supreme Court landmark slip/fall decision of Robinson v. Kroger, 268 Ga. 735 (1997) was presumed by many to take most slip/fall cases out of the Appellate Courts, at least on summary judgments, as Defendant’s negligence and Plaintiff’s contributory negligence or assumption of risk could all be fact questions. That did not happen.

The Georgia Court of Appeals has given, through a series of cases, the Plaintiffs in slip/fall cases some very helpful ammunition and has given the Defendants another way to obtain a summary judgment.

For the Defendant, the new way to obtain a summary judgment is to establish that the Plaintiff had actual knowledge of the defective condition that caused the fall (such as that pesky little grape in the grocery produce aisle) and that the Plaintiff knew about that defective condition (the grape lying in wait) before the fateful step. The legal reasoning behind this approach is that the premises owner’s or occupier’s liability is based upon the premises owner’s superior knowledge of the defect. If the Plaintiff knows about the defect as well, prior to the fall, the knowledge is equal and the Plaintiff will lose. For example, in Yasinsac v. Colonial Oil Properties, Inc., 541 S.E. 2d 109, the Plaintiff had stepped up on the raised platform to a gas station attendant booth prior to her all. She had knowledge that the booth was on a raised platform, so when she stepped back, fell, and broke her hip, that equal knowledge barred her recovery. In Gilliam v. Fletcher Bright Company, 535 S.E. 2d 325, the Plaintiff’s claim was barred because she was generally aware of the ice and snow from the time she left her house until she reached the convenience store parking lot. Her knowledge of the ice and snow was equal to the Defendant’s knowledge at the time she fell, and her case was barred. In Means v. Marshall of MA, 532 S.E. 2d 740, 243 Ga. App. 419, the Plaintiff in the dressing room of the clothing store saw the tags, hangars, and garment paraphernalia on the floor. However, she somehow slipped on this debris when she went to chase after her granddaughter and her claim was barred by her equal knowledge of the debris on the floor.

What the Court of Appeals has taken away, they have also given. In slip/fall cases, the Plaintiff will lose if the Plaintiff cannot establish the Defendant’s superior knowledge of the defect. See Jackson v. K-Mart Corporation, 529 S.E.2d 404, 242 Ga. App. 274, where the Plaintiff failed to show that the Defendant knew the doormat would roll up in the wind. Defendants will rarely admit that they knew about a defect and you cannot always catch an employee “staring at the grape before it is trod upon,” leaving the only realistic avenue for most Plaintiffs being that of constructive knowledge. In general, there are three ways a premises owner/occupier acquires constructive knowledge:

Generally, reasonableness of a store’s inspection procedure is a jury issue. In Shepherd v. Winn Dixie Stores, Inc., 527 S.E. 2d 36, 241 Ga. App. 745, the court held that an owner/occupier that fails to carry out periodic inspections has constructive knowledge of holes or other defects in the parking lot. In Jackson v. Waffle House, Inc., 573 S.E.2d 188, 245 Ga. App. 371, a slip/fall summary judgment for the Defendant was even reversed where the Plaintiff fell on ice, but there was a question as to the adequacy of the store’s inspection procedure. In Kauffman v. Eastern Food and Gas, Inc., 539 S.E. 2d 599, Defendant’s constructive knowledge of a hazardous condition can be inferred where there is evidence of a lack of reasonable inspection procedure. Hutchins v. J.H. Harvey Company, 524 S. E. 2d 289, 240 Ga. App. 582, generally held for a Defendant (owner/occupier) to win summary judgment claiming a lack of constructive knowledge, he must first show an adequate inspection procedure and then show that the procedure was followed; and, without that, constructive knowledge arises. See Daniels v. Atlanta National League Baseball Club, Inc., 524 S.E. 2d 801, 240 Ga. App. 751.

In slip/fall cases now, going back to our troublesome grape, the Plaintiffs want to show