Torts - Deron R. Hicks

• Jurisdiction: Georgia,United States
• Publication year: 1998
• Citation: Vol. 50 No. 1

Tortsby Deron R. Hicks^*

I. Premises Liability

A. Slip-and-Fall

The 1997 torts survey article addressed the confusing state of slip-and-fall law as it developed since the 1980 decision by the Georgia Supreme Court in Alterman Foods, Inc. v. Ligon.¹ The article suggested that although many members of the court of appeals were frustrated by the formalistic approach to slip-and-fall jurisprudence that had developed subsequent to the decision in Alterman Foods, the court of appeals apparently felt constrained to adhere to that approach. The following quote from the court of appeals decision in Coffey v. Wal-Mart Stores, Inc.² was cited as an example of that frustration:

Our Supreme Court has not yet rejected or revised the Alterman Foods standards, and consequently they remain binding on this Court even though we may now believe we have a better concept for allocating the burdens on the parties. Nevertheless, because of recent divergences within this Court in slip and fall cases, perhaps it is time for the Supreme Court to revisit this issue.³

The premises liability section of the tort survey article ended with reference to the Georgia Supreme Court's grant of certiorari to review the court of appeals decision in Robinson v. Kroger Co.⁴ Not long after the publication of the 1997 tort survey article, the Georgia Supreme

Court issued its decision in Robinson v. Kroger Co.⁵ As anticipated in last year's survey article, the decision in Robinson reflects an effort by the supreme court "to address the inconsistencies that have developed over the last seventeen years in the application of the Alterman Foods test and ... to revisit the test altogether."⁶

The facts in Robinson are fairly standard fare for a slip-and-fall case. Plaintiff, Henrietta Robinson, injured her knee in one of defendant's supermarkets when she slipped and fell on a foreign substance on the floor of the store.⁷ The trial court granted defendant's motion for summary judgment on the basis that the proximate cause of plaintiff's injury "was her failure to exercise ordinary care for her personal safety."⁸ On appeal, the court of appeals affirmed the trial court's grant of summary judgment to defendant.⁹ The Georgia Supreme Court granted certiorari "to examine 'the proper standard for determining whether the plaintiff in a "slip and fall" premises liability case has exercised ordinary care sufficient to prevail against a motion for summary judgment.'"¹⁰ Reversing the court of appeals, the supreme court held:

[A]n invitee's failure to exercise ordinary care for personal safety is not established as a matter of law by the invitee's admission that she did not look at the site on which she subsequently placed her foot. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence an ordinarily careful person would use in a like situation.¹¹

As in any analysis of slip-and-fall law in Georgia, the supreme court began its decision in Robinson with a brief review of the decision in Alterman Foods.¹² The court first noted that the decision in Alterman Foods represented an effort by the supreme court in 1980 to address the tendency of trial and appellate courts to find a jury issue in every slip-and-fall case.¹³ To this end, the court in Alterman Foods established a two part test:

[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on

a foreign substance on the defendant's floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.¹⁴

In Robinson the supreme court noted that appellate courts tended to skip over the first prong of the Alterman Foods test and to resolve most cases on the question of whether "the plaintiff had actual knowledge of the hazard equal or superior to that of the defendant or, would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety."¹⁵ Cases that dealt with the second prong of the test established in the Alterman Foods decision fell into two categories. First, the court acknowledged a line of cases in which summary judgment had been granted to the owner/occupier of the premises on the basis that the invitee "had admitted knowledge of the hazardous condition and, with full appreciation of the danger, had chosen a course of conduct which resulted in injury as a result of the hazardous condition."¹⁶

A second line of cases, however, dealt with the situation in which the invitee "attempted to explain that he fell due to a hazard of which he was not aware . . . ,"¹⁷ In this second line of cases, it was generally the position of the defendant that the plaintiff failed to avoid a hazard of which the plaintiff should have known.¹⁸ The second line of cases culminated in the court of appeals decision in Smith v. Wal-Mart Stores, Inc.,¹⁹ in which

it was determined that an invitee who did not see the hazard which caused the fall had failed, as a matter of law, to exercise the requisite ordinary care for personal safety when the invitee admitted he/she would have seen the hazard had the invitee been looking at the floor . . . .²⁰

In the aftermath of the decision in Smith, the supreme court noted that the "plaintiffs were repeatedly rebuffed based upon their admission that they would have seen the hazard had they been looking at the site where they placed their foot."²¹

The supreme court in Robinson, however, expressed concern that the prior decisions of the court of appeals placed too great an emphasis on the second prong of the Alterman Foods test. The court stated:

By foregoing a resolution of the owner/occupier's knowledge of the hazard in favor of a holding based on the determination that an invitee who did not see a hazard should have seen it in the exercise of ordinary care for personal safety, the courts, in effect, ruled as a matter of law that the invitee had knowledge of the hazard equal to or greater than that of the owner/occupier without knowing the extent of the latter's knowledge, and implicitly held that an invitee's duty to exercise ordinary care in looking where one is going is paramount to an owner/occupier's duty to exercise reasonable care in inspecting and keeping the premises safe for invitees.²²

In reaching its decision, the court first noted that issues of negligence, proximate cause, and contributory negligence are generally not issues that can be resolved upon motion for summary judgment.²³ The court then turned its focus to the duty owed by the owner/occupier to invitees. As the court noted, the prior decisions of the court of appeals had "relegated to the shadows the duty owed by an owner/occupier to an invitee."²⁴ According to the court,

[b]y encouraging others to enter the premises to further the owner/occupier's purpose, the owner/occupier makes an implied representation that reasonable care has been exercised to make the place safe for those who come for that purpose, and that representation is the basis of the liability of an owner/occupier for an invitee's injuries sustained in a "slip-and-fall."²⁵

Although the court noted an invitee must exercise ordinary care to discover and avoid injury, the court stated that an invitee "is not bound to avoid hazards not usually present on the premises in which the invitee, exercising ordinary care, did not observe."²⁶ In particular, the court noted that the "invitee is not required, in all circumstances, to look continuously at the floor, without intermission, for defects in the floor."²⁷ In short, "[w]hat constitutes a reasonable lookout depends on all the circumstances at the time and place."²⁸

The court also noted that prior decisions of the court of appeals radically transformed the "plain view" doctrine.²⁹ This doctrine, as it was originally conceived, stated that a person is under a duty to look where that person is walking and to see large objects '"in plain view which are at a location where they are customarily placed and expected to be . . . ."'³⁰ The court noted, however, that the "plain view" doctrine had developed to the point that there were no "reasonable limits" on its application.³¹

According to the court:

The "plain view" doctrine is the equivalent of the "constructive knowledge" aspect of voluntary negligence on the part of the plaintiff. Voluntary negligence is applicable when the invitee knew or should have known of the hazard and proceeded, and the "plain view" doctrine is applied to a hazard in plain view at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall. Even though the invitee had no actual knowledge of the hazard before being injured, the invitee should have known of the hazard's presence.³²

In reversing the decision of the court of appeals, the court rejected prior appellate decisions "which hold as a matter of law that an invitee's failure to see before falling the hazard which caused the invitee to fall constitutes a failure to exercise ordinary care."³³ The court stated,

[d]emanding as a matter of law that an invitee visually inspect each footfall requires an invitee to look continuously at the floor for defects, a task an invitee is not required to perform since the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe for the invitee and continues to exercise such care while the invitee remains on the premises.³⁴

The court's inquiry, however, did not end at that point. According to the court, "our examination of slip-and-fall case law revealed other troubling aspects of the judicial treatment of the invitee's exercise of ordinary care...