Torts - Deron R. Hicks and Travis C. Hargrove

• Publication year: 2010

Torts

by Deron R. Hicks* and Travis C. Hargrove**

This Article surveys recent developments in Georgia tort law between June 1, 2009 and May 31, 2010.¹

I. Premises Liability

In American Multi-Cinema, Inc. v. Brown,² the Georgia Supreme Court affirmed the Georgia Court of Appeals reversal of the grant of summary judgment in favor of a movie theater in a trip and fall case.³ The plaintiff in Brown attended a movie at one of the defendant's theaters. Shortly before the movie ended, an employee of the defendant was called upon to clean up a spill that had occurred several feet away from the door of the auditorium. The employee placed a wet-floor sign over the spill. When the movie ended, the plaintiff and her family exited the crowded auditorium. By the time the plaintiff reached the wet-floor sign, it had fallen and was lying on the floor. Because of the crowd, the plaintiff did not see the sign. The plaintiff tripped over the sign, fell, and was injured. The plaintiff thereafter filed suit against the defendant. The Georgia State Court of Clayton County granted the defendant's motion for summary judgment, and the plaintiff appealed.⁴

* Partner in the firm of Page, Scrantom, Sprouse, Tucker & Ford, P.C., Columbus, Georgia. Adjunct Professor of Law, Mercer University, Walter F. George School of Law. University of Georgia (B.F.A., 1990); Mercer University, Walter F. George School of Law (J.D., cum laude, 1993).

** Partner in the firm of Page, Scrantom, Sprouse, Tucker & Ford, P.C., Columbus, Georgia. Auburn University (B.A., magna cum laude, 2001); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 2004).

1. For analysis of Georgia tort law during the prior survey period, see Deron R. Hicks & Travis C. Hargrove, Torts, Annual Survey of Georgia Law, 61 MERCER L. REV. 335

(2009).

2. 285 Ga. 442, 679 S.E.2d 25 (2009).

3. Id. at 442, 679 S.E.2d at 26.

4. Id. at 442-43, 679 S.E.2d at 26-27.

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The court of appeals reversed the trial court's ruling and held that a jury could reasonably find that the crowd exiting the auditorium prevented the plaintiff from seeing the floor, thereby "rendering the fallen 'Wet Floor' sign useless as a warning device."⁵ According to the court ofappeals, ifthe jury reached this conclusion, the defendant could be held liable for breaching its duty ofcare to the public.⁶ The supreme court granted the defendant's petition for writ of certiorari.⁷ Following a review of the record, the supreme court affirmed the court of appeals decision.⁸

The supreme court noted that the plaintiffin a trip and fall case "must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant's actions or to conditions under the defendant's control."⁹ In Brown "[o]nly the first prong of the two-part . . . test [was] at issue"—that is, whether the defendant had actual or constructive knowledge of the alleged tripping hazard.¹⁰

The supreme court first addressed the defendant's argument that it lacked actual knowledge of the alleged hazard.¹¹ The defendant argued "that while it knew the sign was there, it did not know the sign was a hazard, and ipso facto, it had no 'actual knowledge' of the hazard that injured [the plaintiff]."¹² According to the plaintiff, however, the placement of the sign itself created an unreasonable risk of harm, particularly since it was placed in a high-traffic area immediately outside a crowded auditorium. The plaintiffargued that whether any of the defendant's employees actually saw the sign after it fell over was irrelevant—the defendant breached its duty ofcare simply by placing the sign in that location. In support of this argument, the plaintiffs produced expert testimony that the type of sign used by the defendant constituted a hazard when used in high-traffic areas.¹³

The supreme court rejected the defendant's argument.¹⁴ Citing Robinson v. Kroger Co.,¹⁵ the supreme court concluded that "[t]he

5. Id. at 443, 679 S.E.2d at 27.

6. Id. at 443-44, 679 S.E.2d at 27.

7. Id. at 444, 679 S.E.2d at 27.

8. Id. at 442, 679 S.E.2d at 26.

9. Id. at 444, 679 S.E.2d at 27-28.

10. Id. at 445, 679 S.E.2d at 28.

11. Id. at 445, 679 S.E.2d at 29.

12. Id. at 446, 679 S.E.2d at 29.

13. Id.

14. Id.

15. 268 Ga. 735, 493 S.E.2d 403 (1997).

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decision whether to recognize the [plaintiffs'] theory ofrecovery as valid under Georgia premises liability law is precisely the type oflegal policy judgment we instructed in Robinson must be left to a jury to decide in light of all the attendant circumstances."¹⁶ The court noted that although none of the defendant's employees actually saw the sign after it fell, it was undisputed that one ofthe defendant's employees had put the sign over the spill in accordance with the defendant's policies.¹⁷ According to the court, the defendant's policies required the employee to place the sign over the spill "even if that meant putting it on the floor directly in the path of a large, oncoming crowd of pedestrians."¹⁸ Therefore, the court concluded that summary judgment was not appropriate on the issue ofwhether the defendant had breached its legal

duty.¹⁹

Although the supreme court's ruling on the issue of"actual knowledge" effectively disposed of the appeal, the court also addressed the defendant's argument that it lacked "constructive knowledge" of the haz-ard.²⁰ In a manner consistent with prior trip and fall decisions, the defendant argued that there were no employees of the defendant in the area who could have seen the fallen sign and removed the hazard. The defendant contended that as a result, the plaintiffs had failed to show that the defendant had constructive knowledge of the hazard.²¹ However, the supreme court rejected the defendant's argument and noted

[T]hat we are not inclined to interpret the concept of "constructive knowledge" in such a way that it would exonerate [the defendant's] employees for failing to notice and remedy the tripping hazard when their excuse—the inability to see it due to the large mass of people pouring out of the theater—is the same reason [the plaintiff] could not see the hazard and take actions to avoid it.²²

16. Brown, 285 Ga. at 446, 679 S.E.2d at 29 (citing Robinson, 268 Ga. at 743, 748, 493

S.E.2d at 410-11, 414).

17. Id. at 445-46, 679 S.E.2d at 29.

18. Id. at 446, 679 S.E.2d at 29.

19. Id. at 448, 679 S.E.2d at 30.

20. Id. at 446-47, 679 S.E.2d at 29.

21. Id. at 446, 679 S.E.2d at 29.

22. Id. at 446-47, 679 S.E.2d at 29. The use of the two-part test from Robinson seems somewhat at odds with the facts of this case and the theory of liability. The allegation in Brown was that the defendant was negligent in allowing the wet-floor sign to be placed in a hallway that the defendant knew would shortly be filled with a large crowd of people. Id. at 443, 679 S.E.2d at 27. The issue of knowledge, actual or constructive, is moot. The defendant clearly knew that the sign would be placed in the hallway—in fact, the defendant's policies actually required it to be placed there. Id. at 446, 679 S.E.2d at 29.

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Finally, the court addressed the defendant's contention that the court of appeals decision created uncertainty as to when and under what circumstances the use of a wet-floor sign would be appropriate.²³ The court, however, expressed little sympathy for this position and noted that "this problem is an inherent part of our system of trial by jury in civil cases."²⁴ Although the court acknowledged the widespread use of such signs and their value in preventing injuries, the court held that the use of wet-floor signs does not "automatically immunize[] merchants from suits for damages for injuries caused by [the signs]."²⁵

The court of appeals decision in Kim v. Municipal Market Co.²⁶—another trip and fall case involving a wet-floor sign— followed the Brown decision. The plaintiffin Kim operated a salad bar and deli at the Sweet Auburn Curb Market (Curb Market) in Atlanta. Across the aisle from the plaintiff's booth was another business that leased a cooler from Curb Market's landlord, the defendant. This particular cooler leaked frequently, a fact that was known to the plaintiff. On the day of the incident in question, the cooler had leaked, and a yellow wet-floor sign had been placed over the leak. At some point, however, the wet-floor sign fell down. As the plaintiff returned to her booth from parking her car, she tripped and fell over the fallen sign.²⁷ The plaintiff subsequently brought suit against her landlord.²⁸ The trial court granted the

The supreme court's analysis of the knowledge component of the two-part test therefore appears strained. The facts of this particular case seem more appropriately compared to situations in which a plaintiff alleges injury as a result of a substance that was intentionally applied to or placed on the floor. See, e.g., Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980); Kolomichuk v. Bruno's, Inc., 230 Ga. App. 638, 497 S.E.2d 10 (1998). In such cases, the defendant is presumed to have knowledge of the substance because the defendant actually applied the substance or authorized its application. Alterman Foods, 246 Ga. at 624, 272 S.E.2d at 330. Under those circumstances, "the plaintiff must . . . show that the defendant was negligent either in the materials he used in treating the floor or in the application of them." Id. at 624, 272 S.E.2d at 331. Similarly, in Brown the plaintiff submitted evidence that the type of sign at issue easily collapsed (that is, the defendant was negligent in the material he used) and that the sign should not have been placed immediately outside a crowded theater (that is, the defendant was negligent in the application of the sign). 285 Ga. at 443, 679 S.E.2d at 27.

23. Brown, 285 Ga. at 447, 679 S.E.2d at...