Torts - Cynthia Trimboli Adams and Charles R. Adams Iii

• Publication year: 1995

Tortsby Cynthia Trimboli Adams*and

Charles R. Adams III**

Elsa, soil ich dein Gatte heissen, Soil Land und Leut' ich schirmen dir, Soil nichts mich welder von der reissen, Musst Eines du geloben mir: Nie sollst du mich befragen, Noch Wissens Sorge tragen, Woher ich kam der Fahrt, Noch wie mein Nam ' und Art!¹

The renowned composer and dramaturge Richard Wagner assimilated several hundred years of German myth and legend into his epic "music drama"² Lohengrin.³ Elsa, the paradigmatic damsel in distress, is miraculously rescued by the mysterious, sword-bearing Swan Knight, on the sole condition that, as the stranger solemnly enjoins in the passage quoted above, she never ask him his name or his lineage.⁴ The climax comes when Elsa, unable to still her doubts, demands to know her hero's name. He reveals, "I am Lohengrin, knight of the Holy Grail.

My power lies in my mystery," as he sweeps away and Elsa, overcome with grief, falls dead.⁵

In contrast to Elsa, our distress in dealing with the "legal Lohengrin"⁶ known as torts is not in knowing from whence it came, but rather in attempting to discern where it is going. To assimilate several hundred appellate cases into a coherent survey of Georgia tort law perhaps requires more of the abilities of the thaumaturge than the dramaturge. With the inspiration of the Holy Grail on some Montsalvat regrettably remote from our endeavors, we have had to fall back on Lohengrin's other source of strength: the cutting power of the sword (in this instance replaced by the delete key) to sweep away all but the most epic, or grievous, decisions. Unlike Wagner, however, we hope we have left our subject alive.

I. Negligence

A. Premises Liability

In General. As usual, premises liability cases filled up a large portion of the court reports during the current survey period. The court of appeals repeatedly addressed the application of the "superior knowledge" rule in premises cases. '"The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner . . . and not known to the person injured that a recovery is permitted.'"⁷ Although the contemporary formulation of the superior knowledge rule coalesced in the landmark slip and fall⁸ case oiAlterman Foods, Inc. v. Ligon,⁹ the court of appeals during the survey period applied it to many other types of premises-related injuries, denying recovery to plaintiffs who were injured by alleged construction defects,¹⁰ and by alleged premises-based distractions.¹¹ The court also applied the rule to tenants,¹² holding in Rowland v. Tsay¹³ that even if the hazardous condition arguably violated applicable building codes, a situation which can sometimes,¹⁴ but not always,¹⁵ make the landlord guilty of negligence per se,¹⁶ the tenant's equal knowledge of a danger (defective flooring), which she had avoided in the past, precluded a recovery from the landlord.¹⁷ The court commented that "'[t]o say otherwise would be to relieve tenants of any duty of care and impose absolute liability upon landlords . . .,"'¹⁸ a situation the court was loath to countenance. In Amberley Suite Hotel v. Soto,¹⁹ however, the court declined to equate "knowledge of the defect" in the premises with the legally decisive "knowledge of the danger."²⁰ Plaintiff in Soto was injured when a waterlogged piece of sheetrock fell from a ceiling onto his head. He was undisputedly aware of the existence of the defect, and, in fact, was placing a water bucket under the ceiling.²¹ In view of plaintiff s lack of experience with sheetrock and his inability to examine the extent of the structural weakness, "[t]he conclusion as a matter of law that [he] appreciated the danger of the ceiling falling and injuring him simply because he saw the bulge is unwarranted,"²² said the court.²³

In another application of the superior knowledge rule, the court in Strickland v. Howard²⁴ determined that the defendant employer was not liable for breach of his statutory duty to furnish safe machinery²⁵ because of the undisputed evidence that plaintiff had equal knowledge of the defect in the equipment that injured him.²⁶ In that situation, Georgia has actually codified the superior knowledge rule in Official Code section 34-7-23,²⁷ and the court relied on that section to limit plaintiff's recovery.²⁸ Plaintiff succeeded, however, in establishing his safe work place claim.²⁹ Such a claim is premised upon the rule that "[a]n owner or occupier of land has a duty to exercise ordinary care to keep his premises safe for such persons, including workers who have been hired to work on the premises, as may lawfully come on the premises at the owner's expressed or implied invitation."³⁰ The court in Strickland concluded that this rule gave rise to a duty on the part of the employer to inspect the premises for possible hidden dangers,³¹ a duty that the defendant employer potentially breached in that case.³²

In what once would have gone without saying, the en banc court in Scoggins v. Brown³³ was constrained to hold that "[w]here parents are watching their child play on someone else's land and the parents are aware of a dangerous condition, it is the parents' duty, not that of the landowner, to ensure that the child avoids the danger."³⁴ This is a reminder that some premises-related duties are simply nondelegable.

Licensees. By statute in Georgia,³⁵ the owner of a premises owes a lesser duty to one who is on the premises in the status of a licensee.³⁶ The most typical type of licensee is the social guest. During the survey period, the court held that children jumping on a neighbor's trampoline³⁷ and swimming in a neighbor's pool³⁸ were licensees, but it refused to say as a matter of law that a plaintiff who was visiting defendant, a good friend of his (at least prior to the events giving rise to this lawsuit), and giving him a hand in building a deck, was a licensee as opposed to an invitee.³⁹

One situation in which a social host may be held liable is when he is aware of a dangerous activity going on at his party and fails to stop it.⁴⁰ This rule, however, only applies to "innocent guests"—that is, those who are not participating in the dangerous activity.⁴¹ Defendant in Driver v. Leicht,⁴² who was hosting a party at which everyone had free access to beer on tap,⁴³ escaped liability under this rule when one of his guests carved up the face of plaintiff,⁴⁴ who was also a guest, in a fight plaintiff started over a missed pool shot.⁴⁵ "Even if a social host is negligent," held the court, "he is not liable to an injured guest if that guest is an initiator of or active participant in the sequence of events resulting in his injury."⁴⁶

Slip and Fall. During almost a decade of surveying torts cases for Mercer Law Review, these writers have empirically observed that only about ten percent of the slip and fall cases in the appellate courts are favorable to the plaintiff.⁴⁷ This led these writers, in last year's torts survey, to ask, "what does the demand reflected by all of these claims indicate about the supply of justice? Are there too many frivolous claims in the area of premises liability, or is the legal standard too high?"⁴⁸ Perhaps the appellate courts are beginning to ask the same question, for even though the current survey period yielded the typical number of slip and fall decisions, about thirty, there was a dramatic increase in the number that resulted in a finding that a jury question existed.⁴⁹ No fewer than ten decisions, one-third of the total, went for the plaintiff, and during the survey period, every appellate judge in Georgia, with the lone exception of Judge Andrews,⁵⁰ cast at least one vote for a slip and fall plaintiff to go to a jury.⁵¹

Not every decision, however, was a plaintiff's victory, as illustrated by the analysis in Fitzgerald v. Storer Cable Communications, Inc.⁵² In that case, plaintiff was injured when he tripped over a television cable defendant had left across his driveway.⁵³ "This is not a typical 'slip and fall' case where liability is premised on ownership or control of the premises," said the court, "[w]e must apply traditional negligence principles to the facts."⁵⁴ The court held that defendant had an affirmative duty to act to prevent injury from the cable, because "someone might be injured ... by tripping over the cable despite using ordinary care."⁵⁵ Nevertheless, the court affirmed summary judgment for defendant, reasoning that plaintiff s knowledge of the hazard (the cable had been there for about twenty months) made his own failure to exercise care for his safety the proximate cause of his injuries.⁵⁶

The supreme court's lone foray into the slip and fall area during the survey period was Barentine v. Kroger Co.⁵⁷ Reversing the court of appeals decision,⁵⁸ the high court held that, despite plaintiff's admission that he wasn't looking where he was going, his added explanation that he was looking for defendant's cashier to tell him he was ready to check out was "some evidence that [he] exercised reasonable care for his own safety in approaching the check-out counter."⁵⁹

The court of appeals' reception of Barentine has been decidedly chilly.⁶⁰ For example, Judge Blackburn, the author of the court of appeals opinion in Barentine, wrote, "[h]ow the passive presence of a cashier can constitute 'the setting up of a distraction, by a sign or conduct, which will so divert the customer's attention as to be the proximate cause of his injury ...'... is not explained."⁶¹ That court rather summarily distinguished Barentine in several cases denying recovery.⁶² Furthermore, in Sheriff's Best Buy, Inc. v. Davis,⁶³ the court, speaking again through Judge Blackburn, seemed constrained to find a jury issue against its better judgment because of Barentine.⁶⁴ In Davis, plaintiff fell while responding to a greeting from the store manager.⁶⁵ Because...