BY MATTHEW L. HILT, MORGAN & MORGAN ATLANTA, PLLC
The decisions coming down in the last year lack the punch of a Robinson v. Kroger Co., but nonetheless provide some interesting case lawfor attorneys practicing in this area. Below is a brief synopsis of what might be considered the highlights of the past 12 months, although certainly it is not an exhaustive list.
JOHNSON V. ALL AMERICAN QUALITY FOODS, DO-066 INC., 2017 W L 943962
Georgia Court of Appeals, Civil Case (3/10/2017)
Issues: Prior Traverse; Video Evidence; Time of Inspection; Evidence of Inspection
• Even where plaintiff walked by area of spill four times, still might be a question of fact.
• Inspections of grocery stores as little as 15 to 20 minutes apart may raise questions of fact.
• An inspection 38 minutes prior to a fall in a grocery store should raise a question of fact.
• Defendants might try to get in sweep/inspection logs via attachment to a manager’s affidavit under the business records exception to the hearsay rule.
A fractured Court of Appeals recently issued this opinion, in which it reversed the grant of the Defendant’s motion for summary judgment. The Plaintiff slipped in a puddle of liquid from packaged meat. A surveillance camera recorded a view of the area where the Plaintiff fell, and it showed that seven minutes and thirty seconds prior to the fall, Plaintiff traversed the area of the fall. Additionally, immediately prior to her fall, the Plaintiff walked past the area, browsed either sides of the aisle for less than one minute, and then walked back the way she had just come, at which point she slipped and fell.
According to the inspection log sheet, an employee completed an inspection of the aisle where the Plaintiff fell approximately 38 minutes prior to the fall. After Plaintiff’s fall, the manager on duty, completed an incident report and discovered a trail of “spots of blood and meat products” in the aisle.
The trial court granted summary judgment finding that there was no dispute of fact as to the Defendant’s constructive knowledge of the spill and that the inspection was reasonable as a matter of law.
The Court of Appeals disagreed, holding that “[Plaintiff] traversed the area of her fall twice before slipping in the substance during her third crossing. This, however, does not support a finding on summary judgment that [Plaintiff] knew or should have known about the spill as a matter of law.” This in and of itself is a major win for civil plaintiffs in the State of Georgia.
But the majority of the Court was not done providing ammunition for the plaintiff’s side. The Court relied upon its prior cases, in which the Court found that questions of fact exist based on the reasonableness of an inspection procedure even if the inspection occurred as little as 15 minutes to 20 minutes prior to a fall. “The nature of a supermarket’s business creates conditions which cause slip and falls to occur with some frequency. Under those circumstances, we have held that premises owners have a duty to inspect with greater frequency.”
Interestingly, the majority did not take up the issue of the admissibility of the manager’s affidavit and the time-stamped list of inspections attached thereto. The dissent pounced on this in a vigorous dissent authored by Judge Andrews, who was joined by Judges McMillan and Self. In it, the dissent argued that the trial court had it correct, indicating that the computer report attached to the manager’s affidavit should have been admissible as a business record under 24-8-803(6). Expect to see more of this tactic in the future as defendants attempt to avoid situations where they are unable to secure testimony from the employee who actually conducted the inspection.
The dissent also argued that the presentation of evidence of a reasonable and effective inspection procedure should have placed upon the Plaintiff the burden of coming forward with competent evidence showing “anything else that would impute constructive knowledge of the hazard to the [Defendant].”
ALL AMERICAN QUALITY FOODS, INC. V. SMITH, 2017 W L 811686
Georgia Court of Appeals, Civil Case (2/27/2017)
Issue: Inspection Procedures; Video Evidence of Spill
• Where video evidence of actual spill shows only 6 to 7 minutes between spill and fall, Defendant need not prove that a reasonable inspection procedure was in place and followed.
The Court of Appeals reversed the denial of the Defendant supermarket’s motion for summary judgment. Video evidence established that two children walking in the aisle with open cans of soda created the spill when they bumped into each other. The Plaintiff then fell some 6 to 7 minutes later. As such, the Court held that the Defendant would not have had adequate time to inspect and remove the hazard, regardless of whether the Defendant could show that it had a reasonable inspection procedure in place that was follow ed on the date in question.
The Court also did not accept the Plaintiff’s argument that the manager indicated soon after the fall that he saw two children running around with open containers. The Court determined that it was not clear whether these were the same children, and the children on the video were not running, but rather walking at a brisk pace and bumped into each other.
RENTZ V. PRINCE OF ALBANY, INC., 2017 W L 730431; A16A2096
Georgia Court of Appeals (2/24/2017)
Issues: Previously Negotiated; Static Condition
• Despite the fact that it is portable, a corn hole game is still a static condition.
• Plaintiff should establish a reason she did not see or appreciate a hazard on plaintiff’s prior traverses
. • Distraction doctrine not applicable where plaintiff previously negotiated the hazard.
Here the Court of Appeals upheld the grant of summary judgment to the Defendant car dealership because 3 times prior to falling, the Plaintiff had successfully negotiated the alleged hazard, a corn hole game. The Court held that this static condition was ope n and obvious. Plaintiff’s contention that she was distracted was of no bearing because this was a static condition that she had previously negotiated. Further, despite evidence that a corn hole game can be moved, for purposes of this case it was still considered a static condition.
ROWELL V. KROGER CO., 2016 W L 5720319 N.D.
Georgia, Atlanta Division
Issues: Cones Warning of Hazard; Distraction
• Make sure cones are at or near the actual hazard that caused the fall.
• A display in the middle of the aisle might constitute a distraction.
Judge Story denied the Defendant supermarket’s motion for summary judgment in this case in which the Plaintiff slipped on water, which had been leaking from a freezer for over a month. The Defendant argued that warning cones were in place. However, the Plaintiff testified that the cones were at the entrance to the aisle, and as such, she used caution negotiating the aisle, but still slipped and fell further down the aisle by the freezer. Plaintiff also testified that a display table in the middle of the aisle blocked her view and distracted her such that she could not see the water on the floor. Judge Story held that this was sufficient evidence to create a genuine issue of material fact as to Plaintiff’s own negligence.
RICHARDSON V. MAPOLES, 339 Ga. App. 870; A16A2184
Georgia Court of Appeals, Civil Case (12/8/2016, 1/23/2017)
Issue: Cause of the Fall
Lessons Learned: • Make sure the Plaintiff can testify to exactly what caused her fall. • Do not be afraid to address deficiencies in the Plaintiff’s deposition testimony on re-direct during the discovery deposition; doing so in an affidavit in response to a motion for summary judgment might run afoul of the Prophecy Rule. The Court of Appeals affirmed the grant of summar y judgment to the Defendant in the Plaintiff’s personal injury suit arising after she fell while trying to enter a Chick-Fil-A restaurant operated by the Defendant. The Plaintiff argued on appeal that the trial court erred in concluding that she failed to offer sufficient evidence of causation. But the evidence, taken in the light most favorable to the Plaintiff, showed no more than a mere possibility that a hazard on the restaurant’s property caused her fall.
The Plaintiff argued that a defect in the restaurant door caused her to be unable to open it, which in turn caused her to fall on the wet floor. But she pointed to no evidence establishing a causal connection between any problem with the door and her fall. Al though the Plaintiff claimed that her testimony showed that she fell because of her struggle with the door, all that her testimony showed was that she fell while she struggled with the door. The Plaintiff could not say for sure what caused her to fall. Accordingly, the Court affirmed the grant of summary judgment to the Defendant.
PIPKIN V. AZALEALAND NURSING HOME INC., 339 Ga. App. 390; A16A0860
Georgia Court of Appeals, Civil Case (11/10/2016, 12/22/2016)
Issue: Existence of a Hazard
• If the plaintiff cannot testify to what caused the fall, maybe another witness can.
• Even though the defendant’s employees testify that there was no hazard present, it can still help to have them testify that there is often a hazard in the area of the plaintiff’s fall.
The Court of Appeals reversed the grant of summary judgment to the Defendant nursing home. The 88-year-old Plaintiff testified that she was knocked unconscious by the fall and did not recall anything until the EMTs were attending to her some time later. She admitted that she did not know what caused her to fall, other than she “stepped on something slick.”
Despite the Plaintiff’s apparent inability to say what exactly caused her fall, the Plaintiff’s son provided testimony via affidavit that, when he knelt down next to his mother where she had fallen, he felt that his knees were wet and realized that she was lying in some clear liquid, which one of the Defendant’s employees was mopping up. Plaintiff’s son’s testimony was sufficient to create a jury issue regarding the existence of a hazard. A jury could infer that the liquid on the floor caused Plaintiff’s fall from the testimony that the floor was slippery, that there was liquid on the floor “next to” the Plaintiff and in “the area around” her, and that an employee was mopping it up with a towel.
In addition, while four of the Defendant’s employees testified that the floor was clean and dry and that “nothing was on the floor,” several employees also testified that it was “typical” or common for the floor outside a shower room to be wet.
PAJARO V. SOUTH GA BANK, 339 Ga. App. 334; A16A1125
Georgia Court of Appeals, Civil Case (11/4/2016, 12/16/2016)
Issue: Out of Possession Landlord under O.C.G.A. § 44-7-14
• In many premises liability cases, consider asserting a claim under 44-7-14 against an alleged absentee landlord for: (1) defective construction; and (2) failure to keep the premises in repair.
• Consider securing expert testimony as to what should have been known by an owner/occupier or an out -of-possession landlord.
• Licensed commercial and residential contractor might be able to provide expert testimony of what a defendant should have dis-covered via a reasonable inspection in a construction defect case.
• Expert might be allowed to opine based upon photographs after incident.
The Court of Appeals reversed the grant of the out-of-possession landlord Defendant’s motion for summary judgment in this case in which the Plaintiff was injured from a fall when a stairway collapsed. The general rule is that landlords are only liable for defective construction in cases where the landlord built the structure. An exception exists where the defective structure was “constructed by a predecessor in title, and the landlord knew or by the exercise of reasonable diligence could have known of its improper construction before the tenancy was created[.]”
In his affidavit, the Plaintiffs’ expert witness opined that a pre-purchase structural inspection would have led this absentee landlord Defendant to discover the defects that, in the expert witness’s opinion, caused the staircase to collapse. It was for the jury to determine whether to credit his opinion that an inspection would have disclosed the construction defects. If a jury were to fin d the opinion credible, the jury could find that the Defendant, in the exercise of ordinary care, could have discovered the construction defects that caused the staircase to collapse. Accordingly, summary judgment was not appropriate as to the defective construction claim.
The Defendant also attacked the Plaintiffs’ expert’s opinions as irrelevant. The expert was a licensed commercial and residential contractor. Although not a home inspector, the expert was still allowed to opine as to what should have been discovered durin g an inspection. “It was for the jury to determine whether to credit his opinion that an inspection wo uld have disclosed the construction defects.”
The Court of Appeals also discounted the Defendant’s challenge to the expert’s opinion being based upon photographs of the stairs taken after the collapse. The Court of Appeals found that this created a jury is sue.
BYROM V. DOUGLAS HOSP. INC., 338 Ga. App. 768; A16A0937
Georgia Court of Appeals, Civil Case (10/4/2016, 10/17/2016)
Issue: Ordinary Negligence or Medical Malpractice
• To be on the safe side, consider evaluating any fall of a patient at a medical facility from the perspective of a medical malpractice claim. The Plaintiff’s negligence suit against a hospital, arising after she sustained injuries in a fall while exiting a wheelchair the hospital provided, was a claim for ordinary negligence, not a claim for professional negligence; accordingly, Plaintiff was not required to file an expert affidavit with her complaint pursuant to O.C.G.A. § 9-11-9.1.
YOUNGBLOOD V. ALL AM. QUALITY FOODS INC., 338 Ga. App. 817; A16A1063
Georgia Court of Appeals, Civil Case (10/11/2016, 10/18/2016)
Issues: Actual Knowledge; Reasonable Time to Remove Hazard
• Even where there is evidence that the defendant’s employee has knowledge of the hazard, evaluate the case from the perspective of whether that employee was afforded opportunity to remove the hazard.
• Judge Ray concurred in the judgment only.
The Court of Appeals upheld the grant of summary judgment, even though the evidence showed that a customer had warned a cashier about a spill in aisle 10 and a bag boy was on his way to clean it up. Even if the Defendant acquired actual knowledg e of the spill just prior to the Plaintiff’s fall, the Defendant responded within a reasonable time and exercised ordinary care to attempt to r Remove the hazard after receiving notice of the spill. Of import, Judge Ray concurred in the judgment only, and as such the precedential value of the case can be called into question.
STONE MOUNTAIN MEMORIAL ASS’N V. AMESTOY, 337 Ga. App. 467; A16A0056
Georgia Court of Appeals, Civil Case (6/21/2016, 8/9/2016)
Issues: Recreational Property Act
• The Recreational Property Act O.C.G.A. § 51-3-20 et seq. exists. It provides that an owner of land who invites or permits persons to use their property for recreational purposes free of charge, owes no duty of care to keep the premises safe for entry or use by others or to give warning of a dangerous condition, use, structure, or activity on the premises.
• There is an exception to Recreational Property Act for willful or malicious failure to warn against danger.
The Court of Appeals reversed the denial of summary judgment and found that, because the allegedly dangerous condition, i.e., the barricades blocking the road, was open and obvious as a matter of law, the Defendant was entitled to summary judgment based upon immunity under the Residential Property Act. Per the Act, “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.” O.C.G.A. § 51-3-22.
An exception applies if the property owner willfully or malicious failed to guard or warn against a dangerous condition, use, structure or activity. In order for the “willful or malicious failure” exception to apply, the plaintiff must show that defendant had actual knowledge that (1) the property was being used for recreational purposes, (2) a condition existed involving unreasonable risk of death or serious bodily harm, (3) the condition was not apparent to those using the property and (4) having the foregoing knowledge, the property own er chose not to warn users in disregard of the possible consequences.
TESTON V. SOUTHCORE CONSTR. INC., 336 Ga. App. 773; A15A2324
Georgia Court of Appeals, Civil Case (3/28/2016, 6/17/2016) Cert denied October 17, 2016
Issue: Plaintiff’s Knowledge of a Specific Hazard
• A Plaintiff who has knowledge of a general hazard should clarify in testimony that the Plaintiff did not have knowledge of a specific hazard.
• Plaintiff’s placement of foot in area not previously visually inspected should be evaluated based upon the circumstances at the time and place of the incident.
The Court of Appeals reversed the grant of summary judgment to the Defendant construction company in a lawsuit in which the Plaintiff and her husband sought to recover for injuries she sustained when she tripped and fell over electrical cords that were ex-posed during an office renovation, holding that a genuine issue of material fact remained. It was undisputed that Plaintiff had been informed of the renovation in her workplace, and it was obvious that furniture in the store had been removed and rearranged over-night. There was also testimony that employees had been warned to be careful in the store. However, there was no evidence that, at the time of her fall, the Plaintiff was aware of the existence of the cords protruding from under a floor mat; the cords had previously been concealed by desks that were moved overnight. Plaintiff’s knowledge of the specific hazard precipitating her trip and fall was determinative, not merely her knowledge of the generally prevailing hazardous conditions or of hazardous conditions she observed and avoided. “Whether [the Plaintiff] exercised that duty of care commensurate with her knowledge…is a circumstance to be considered by the jury in determining if appellant exercised due care for her personal safety.” Because reasonable minds could differ, and taking into account all the circumstances at the time and place of the incident, the Court of Appeals concluded that the evidence did not plainly, palpably and indisputably lead to the conclusion that Plaintiff’s placement of her foot on a site she had not previously inspected visually was an act that was a want of such prudence as the ordinary careful person would use in a like situation.
SIX FLAGS OVER GA II LP V. MARTIN, 335 Ga. App. 350; A15A0828; A15A0829
Georgia Court of Appeals, Civil Case (11/20/2015, 2/16/2016) Cert Granted September 6, 2016 Issue: Third Party Criminal Act; Apportionment; Defining “Approaches”
• The Georgia Supreme Court has granted cert. This case is on appeal to the Georgia Supreme Court. It is included herein because the Supreme Court might provide guidance o n a number of interesting premises liability issues, including apportionment, approaches, and third-party criminal acts. In the case from the Court of Appeals, the Court held that although the evidence was sufficient to support the jury’s verdict in favor of the Plaintiff in his premises liability suit against an amusement park arising after gang members viciously attacked him at a nearby bus stop, the Court reversed the verdict and remanded the case for new trial because the trial court erred in denying the park’s request to include some of the attackers on the verdict form for apportionment of fault.
ABOUT THE AUTHOR:
Matthew Hilt is an associate in the Atlanta office of Morgan & Morgan where he runs a litigation team. His practice is primarily focused on personal injury work, including premises liability, third-party criminal acts, and auto wrecks. He can be reached at firstname.lastname@example.org