Torts - Deron R. Hicks
Jurisdiction | Georgia,United States |
Publication year | 2004 |
Citation | Vol. 56 No. 1 |
Tortsby Deron R. Hicks*
I. Premises Liability
In Music v. Steamco, Inc.,1 the Georgia Court of Appeals affirmed the trial court's grant of summary judgment in favor of a restaurant in a slip and fall action.2 The action was filed by a patron of the restaurant who suffered injuries when she fell down a set of stairs while exiting the restaurant. Plaintiff, after having lunch with her friends at defendant's restaurant, prepared to leave the restaurant by way of the same stairs she used to enter the restaurant. As she stood at the top of the stairs, plaintiff noticed water on the steps; however, the steps had been dry when plaintiff entered the restaurant. Notwithstanding the presence of the water, plaintiff began to descend the steps, slipped, and fell. During the course of discovery, plaintiff admitted that although it would have been inconvenient, she could have avoided the wet steps altogether.3 In affirming the trial court's grant of summary judgment in favor of defendant, the court of appeals focused on the issue of whether plaintiff had knowledge of the hazardous condition, despite the exercise of ordinary care.4
In Robinson v. Kroger Co.,5 the Georgia Supreme Court held that to recover for injuries sustained in a slip and fall, a plaintiff must satisfy a two-prong test.6 First, the plaintiff must prove that the owner or occupier of the premises had actual or constructive knowledge of the hazard.7 Second, the plaintiff must prove lack of knowledge of the hazard despite the exercise of ordinary care.8 According to the court of appeals, "standing water in plain view on the steps was one which 'any person with ordinary, common sense would recognize as something that might cause a person to trip, slip, or fall.'"9 The court of appeals, therefore, held that plaintiff had equal knowledge of the hazard and failed to exercise due care for her own safety.10
Standing alone, the decision in Music is of little significance. The decision, however, should be contrasted with Mac International-Savannah Hotel, Inc. v. Hallman,11 a decision issued by the court of appeals one month later.12 In Hallman the court of appeals affirmed the trial court's denial ofsummary judgment for a hotel in a slip and fall action.13 In Hallman, plaintiff was a member of a tour group visiting Savannah. After a bus tour of the city, plaintiff checked into her room at defendant's hotel and shortly thereafter left the hotel for dinner. Upon returning to the hotel, plaintiff attempted to enter the hotel through a different door, which was located up a short flight of stairs and across a landing. A sign was posted on the door; however, in order to read the sign, plaintiff had to climb the steps and cross the landing. The steps and landing were both dark and the handrails for the steps were overgrown with bushes.14 Notwithstanding the obvious hazards, plaintiff walked up the stairs to read the sign, which read "Exit only. Do not Enter."15 Plaintiff then began to descend the stairs when she fell and broke her ankle. According to an expert retained by plaintiff, the stairs constituted a trip hazard for several reasons, to include the fact that the height of the stair risers varied beyond what was acceptable under the standard building code. Defendant's motion for summary judgment was denied by the trial court, and defendant appealed.16
On appeal the court of appeals again recited the two-part burden of proof that a plaintiff must satisfy in a slip and fall case.17 Based on the facts, the court concluded that plaintiff presented evidence that defendant knew or should have known ofthe hazardous condition ofthe steps because defendant swept the steps daily and pressure washed the steps quarterly.18 The court, therefore, held that plaintiff satisfied the first prong of the Robinson test.19 As to the second prong of the Robinson test, defendant's argument on appeal was essentially two-fold. First, defendant argued that plaintiff assumed the risk of her fall because she voluntarily entered a darkened area to use stairs that were poorly lit.20 The court of appeals, however, held that defendant was responsible for plaintiff entering the dark area because it failed to property illuminate the doorway and it failed to post a sign that could be read from the sidewalk.21 Second, defendant argued that it was not liable for plaintiff's injuries because plaintiff had equal knowledge of the stairway's condition.22 According to the court of appeals, there was nothing in the evidence to establish that plaintiff knew the stairs were a trip hazard.23 Accordingly, the court of appeals affirmed the trial court's decision.24
Judge Andrews, in a dissenting opinion, stated that there were certain facts that the majority ignored in reaching its decision.25 One of the facts noted by Judge Andrews was that plaintiff had entered and exited the hotel at the main entrance and, therefore, knew where she was able to enter the hotel.26 Although Judge Andrews never explicitly states so in his opinion, it is clear he questioned the need for plaintiff to enter the darkened area at all. As in Music, plaintiff was not required to traverse the dangerous condition and could have avoided it altogether. Moreover, Judge Andrews pointed to the testimony of plaintiff, who previously stated she believed the cause ofher fall was the area was not well lit.27 Accordingly, Judge Andrews stated that notwithstanding any testimony on the unevenness of the steps or the inadequacy of the handrail, there was no evidence that these conditions had actually resulted in plaintiff's fall.28 Moreover, to the extent that the cause of the fall was the lack of lighting in the area, Judge Andrews noted that plaintiff had clear knowledge that the area was poorly lit.29 As Judge Andrews noted, plaintiff "knew that the lighting was 'dark and shadowy,' but nonetheless chose that doorway to enter, rather than returning to the main entrance from which [she] exited."30
As in Music, plaintiff in Hallman had a known, safe, and alternative means of traversing the area where the slip and fall occurred. Plaintiff in Hallman was not required to ascend the steps and cross the landing to enter the hotel. Likewise, plaintiff in Music was not required to traverse the wet area on the steps to leave the restaurant. In fact, a much stronger argument could be made that plaintiff in Music was presented with fewer options on how she could exit defendant's restaurant. What is clear, however, is that the plaintiffs in both Music and Hallman voluntarily elected to take their respective paths. Nonetheless, the court of appeals in Music held that plaintiff voluntarily entered a known and dangerous condition; therefore, plaintiff had equal knowledge of the condition.31 In contrast, the court of appeals in Hallman determined that plaintiff, who attempted to traverse a hazardous condition of her own volition, lacked equal knowledge of the alleged hazard.32 As the court in Music noted, "'any person with ordinary, common sense would [have] recognize[d] [the standing water] as something that might cause a person to trip, slip, or fall.'"33 It is unclear, however, why similar ordinary, common sense was not required in Hallman.
II. Animal Liability
In the movie The Pink Panther Strikes Again,34 Inspector Clouseau, played by Peter Sellers, engages in the following conversation with an innkeeper:
Inspector Clouseau: "Does yer dewg bite?"
Innkeeper: "No."
Inspector Clouseau: "Nice doggie" (Clouseau then bends down to pet the dog, which proceeds to bite him) "I thought you said yer dewg did not bite!"
Innkeeper: "Zat . . . iz not my dog."35
This famous scene from Peter Sellers's classic film brings to mind the incident described in the Georgia Court of Appeals decision in Osowski v. Smith.36 In Osowski plaintiff was a cable TV installer who scheduled an appointment with defendants to install cable television at their residence. When plaintiff arrived at defendants' residence, he saw several dogs roaming around the residence and asked one of the defendants if the dogs would bite him. Defendant assured plaintiff that he would restrain the dogs. Thereafter, defendant left the immediate area; plaintiff, no longer seeing any dogs, left his vehicle and entered the residence. As plaintiff started to leave defendants' residence, he was struck from behind by a dog. Plaintiff claimed that he was injured as a result of being knocked to the ground by the dog. Defendants disputed most of plaintiff's testimony, although they agreed that there were dogs on the property. One of the defendants recalled that there were three dogs on the property that day, two of which were owned by defendants. Similar to Inspector Clouseau's situation, the third dog, which defendants believe knocked plaintiff to the ground, allegedly did not belong to defendants.37
During the course ofthe civil action, the parties agreed to stipulate to the following facts: plaintiff was an invitee on the property; there was no leash law in effect; and defendants did not have superior knowledge of the dangerous propensity or temperament of the dog that allegedly knocked plaintiff to the ground. Based on these stipulations of fact, and finding neither evidence that plaintiff specifically asked that the offending animal be put inside the house nor evidence that defendants had offered to do so, the trial court entered summary judgment for defendants.38 The court of appeals reversed.39
The court of appeals first noted that in a typical dog bite case, "a plaintiff must produce evidence of the vicious propensity of the dog in order to show that the owner of the premises had superior knowledge of the danger."40 In this case, plaintiff conceded that there was no evidence that the animal at issue had dangerous propensities or that defendants knew about any such propensities.41 Nevertheless, the court ofappeals noted that "a person may be held liable for the negligent performance of a voluntary...
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