American Multi-Cinema, Inc. v. Brown

• Decision Date: 01 June 2009
• Docket Number: No. S08G1934.,S08G1934.
• Citation: 285 Ga. 442,679 S.E.2d 25
• Parties: AMERICAN MULTI-CINEMA, INC. et al. v. BROWN et al.
• Court: Georgia Supreme Court

679 S.E.2d 25

285 Ga. 442

AMERICAN MULTI-CINEMA, INC. et al. v. BROWN et al.

No. S08G1934.

Supreme Court of Georgia.

June 1, 2009.

Gray, Rust, St. Amand, Moffett & Brieske, Christopher M. Ziegler, Atlanta, for appellants.

A. Thomas Stubbs, John E. King Jr., Decatur, for appellees.

SEARS, Chief Justice.

Accidents happen. But many accidents can be prevented, or at least rendered substantially less likely to occur. An owner or occupier of land has a legal duty, enforceable by lawsuit, to exercise ordinary care to keep and maintain its premises and the approaches in a condition that does not pose an unreasonable risk of foreseeable harm to the invited public. American Multi-Cinema, Inc. (AMC) used a warning device to prevent one type of accident (slipping on spills) that ended up causing a different type of accident (tripping over a "Wet Floor" sign lying flat on the ground). We agree with the Court of Appeals that the plaintiffs came forward with sufficient evidence to send this case to a jury to determine whether AMC breached its duty of care to the public under the totality of the circumstances. Accordingly, we affirm the Court of Appeals' judgment reversing the trial court's grant of summary judgment to AMC.

1. Business was brisk on Christmas Day 2003 at AMC's 24-plex movie theater at Southlake Mall. Nancy Sue Brown took her daughter and grandchildren to see the Steve Martin remake of "Cheaper by the Dozen," and they were joined by a friend and her grandchildren. The auditorium was filled to capacity, and when the movie ended, the crowd rose from their seats and headed towards the exit doors en masse. Brown's friend was at the front of the crowd with all the grandchildren heading towards the bathroom, while Brown and her daughter were further back in the middle of the crowd.

Unbeknownst to Brown, mere minutes before the movie ended, an AMC employee, following company policy, set up a commonplace, A-frame "Wet Floor" sign over a small spill 10 to 20 paces outside the auditorium door. By the time Brown reached the sign, it had fallen over and was lying flat on the floor. Brown's vision was obscured by the mass of people around her, and she did not see the sign until it was too late. As her foot passed over it, her toe caught in the handle, and she fell headlong to the floor. Brown, who had recently undergone back surgery, was seriously injured in the resulting fall.

Brown and her husband filed suit against AMC for negligence and loss of consortium on a premises liability theory.¹ AMC moved for summary judgment, claiming: (1) it is undisputed that the sign was initially set up correctly; (2) the Browns produced no evidence that AMC knew the sign had fallen down before Brown tripped on it; and (3) the Court of Appeals held in Warberg v. St. Louis Bread Co. and Freeman v. Wal-Mart Stores, Inc. that a "Wet Floor" sign is not a tripping hazard as long as it was set up properly even if it is lying flat on the floor by the time the plaintiff reaches it, even if it was placed in a highly trafficked area, and even if the defendant knew that signs of this type frequently end up falling over when they come into contact with moving crowds.² AMC argued that allowing the Browns' suit to go forward would put retailers in an untenable position, because longstanding Georgia case law encourages the use of "Wet Floor" signs to mark spills. AMC also noted its extensive employee training program with its focus on customer safety and the proper procedure for handling spills.

In response, the Browns produced expert testimony that the type of "Wet Floor" sign Brown tripped over collapses easily when it comes into contact with pedestrian traffic; it is standard knowledge in the retail industry that this type of sign tends to collapse, creates a tripping hazard when it does, and should therefore not be placed in the path of oncoming crowds; and there were safer, readily available alternatives AMC could have employed to address the spill, such as using a sturdier type of "Wet Floor" sign or a design less prone to collapsing, or requiring employees to dry spills in heavily trafficked areas completely, thereby obviating the need for a warning device altogether. The Browns also challenged AMC's interpretation of Warberg and Freeman.

The trial court adopted AMC's reading of Warberg and Freeman and granted summary judgment to AMC. The Browns appealed, and the Court of Appeals reversed.³ The Court of Appeals explained that Warberg and Freeman did not hold, as a matter of law, that "Wet Floor" signs set up over spills can never be the basis for a premises liability claim, regardless of where they are placed. The Court of Appeals concluded that the evidence, viewed in the light most favorable to the Browns, could support a factual finding that the crowd blocked Brown's view of the floor, rendering the fallen "Wet Floor" sign useless as a warning device. The Court of Appeals held that if the jury so found, it could hold AMC liable for premises liability for breaching its duty to exercise ordinary care to protect the safety of the invited public. We granted AMC's petition for a writ of certiorari.

2. Premises liability lies at the intersection of tort law and property law. To recover on a theory of premises liability, a plaintiff must show injury caused by a hazard on an owner or occupier of land's premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public.⁴ When a premises liability cause of action is based on a "trip and fall" or "slip and fall" claim—and the lion's share of premises liability cases are⁵—we have refined this general test down to two specific elements. The plaintiff 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.⁶

The proper application of summary judgment principles to premises liability cases has caused the courts much consternation. We recounted this troubled history in our seminal 1997 decision in Robinson v. Kroger Co.⁷ We described the "pendulum-like" development of Georgia law, reporting that, for a time, there seemed to be a drift towards allowing every "slip and fall" or "trip and fall" case, no matter how groundless, to proceed to a jury trial. We had implemented a course correction in 1980 in Alterman Foods, Inc. v. Ligon. Unfortunately, we overshot the mark, and it became a rarity for a "slip and fall" or "trip and fall" case to survive a defendant's motion for summary judgment.

In Robinson, we instituted a second course correction, this time in the opposite direction. We reaffirmed Alterman's two-part test for premises liability in "slip and fall" and "trip and fall" cases but adjusted the burdens of production on summary judgment to more accurately reflect the doctrinal underpinnings of premises liability theory and to restore the jury to its rightful role in elaborating the content of a merchant's duty of care to the invited public. After Robinson, to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff's injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one's personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant's own actions or conditions under the defendant's control.⁸

We concluded Robinson with the following admonition:

In sum, we remind members of the judiciary that the "routine" issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.⁹

To put it in more concrete terms, this means that issues such as how closely a particular retailer should monitor its premises and approaches, what retailers should know about the property's condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.

3. With these background principles in mind, we turn to the present case. Only the first prong of the two-part Alterman-Robinson test is at issue.¹⁰ Thus, the question is whether the Browns came forward with evidence that, viewed favorably, would enable a rational jury to find AMC had actual or constructive knowledge of the tripping hazard that injured Brown.

AMC claims it is undisputed that it did not have "actual knowledge" of the hazard that caused Brown's injury. That is not entirely correct. What is undisputed is that none of AMC's employees deposed by the Browns personally saw the "Wet Floor" sign after it fell down but before Brown tripped on it. AMC concedes, however, that one of its employees set up the sign...