Aubain-Gray v. Hobby Lobby Stores, Inc.

• Decision Date: 08 August 2013
• Docket Number: No. A13A1042.,A13A1042.
• Parties: AUBAIN–GRAY, et al. v. HOBBY LOBBY STORES, INC.
• Court: Georgia Court of Appeals

323 Ga.App. 672

747 S.E.2d 684

AUBAIN–GRAY, et al.

v.HOBBY LOBBY STORES, INC.

No. A13A1042.

Court of Appeals of Georgia.

Aug. 8, 2013.

Sabrina A. Parker, Norcross, for Appellant.

James William Scarbrough, Atlanta, for Appellee.

ANDREWS, Presiding Judge.

While shopping on the premises of Hobby Lobby Stores, Inc., Marjorie Aubain–Gray picked up a candle holder. The glass globe resting on the top of the holder fell off and cut her right wrist. Aubain–Gray and her husband, Michael Gray, sued Hobby Lobby contending that Hobby Lobby's negligence in failing to keep its store in a safe condition was the cause of her injuries. On appeal, Aubain–Gray claims that the trial court erred in granting Hobby Lobby's motion for summary judgment and in denying her motion for spoliation sanctions. For the reasons set forth below, we disagree and affirm.

1. Aubain–Gray contends that the trial court erred in granting summary judgment to Hobby Lobby because there remain issues of material fact concerning whether a hazardous condition existed on Hobby Lobby's premises. We disagree.

In an appeal from the grant or denial of a motion for summary judgment, we review the law and the evidence de novo. See Ford v. Bank of America Corp., 277 Ga.App. 708, 627 S.E.2d 376 (2006). Summary judgment is properly rendered when the evidence, construed in the nonmovant's favor, shows that no issue of material fact remains and the movant is entitled to judgment as a matter of law. See OCGA § 9–11–56(c); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). To prevail on summary judgment, a defendant may show “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.” Id.

So viewed, the evidence shows that Aubain–Gray went shopping at the Hobby Lobby store in Acworth in December 2008. Hobby Lobby grouped its merchandise by type, color, and material, and the home decor items were displayed, according to the store manager, “like [they] would appear at your home.” After shopping for about 15 to 20 minutes, Aubain–Gray saw what she thought was a “yellowish glass vase” located on the top shelf and sitting “a little bit” above her eye level.

Thinking that the vase was one piece, Aubain–Gray picked up the base of the vase with her left hand in order to check the price. When she turned the vase over, the top portion dropped off and fell onto her right wrist, cutting her and causing nerve damage. Aubain–Gray deposed that if she had known that the vase consisted of more than one piece, she would have known not to lift it up.

According to the verified amendment to Aubain–Gray's complaint, the item she picked up was a multiple piece glass candle holder. The manager of the store in which Aubain–Gray was injured deposed that in a “globe type candle holder,” the lamp portion is usually loose, explaining that “you have to put the candle in, light the candle, [and] clean the wax.”

Aubain–Gray sued Hobby Lobby contending that her injuries were the proximate result of Hobby Lobby's negligence. According to Aubain–Gray, Hobby Lobby had actual knowledge that the candle holder was multiple pieces; but, when displayed on the shelf it appeared to be one piece. She allegedthat Hobby Lobby was negligent in, among other things, failing to use ordinary care to keep its premises safe, in allowing its guests to be subject to unsafe products that were on sale on the premises, and in failing to post warning signs or markings. Hobby Lobby moved for summary judgment, and the trial court granted the motion. This appeal followed.

An owner is liable to an invitee for injuries caused by its “failure to exercise ordinary care in keeping the premises and approaches safe.” (Punctuation omitted.) Sipple v. Newman, 313 Ga.App. 688, 689–690, 722 S.E.2d 348 (2012) (quoting OCGA § 51–3–1). As we have said,

[a] proprietor's obligation to keep the premises safe includes a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. 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.

(Citation omitted.) Thomas v. Home Depot, U.S.A., 284 Ga.App. 699, 700, 644 S.E.2d 538 (2007). A proprietor is not, however, the insurer of its customer's safety; rather, “what the law requires is such diligence toward making the premises safe as the ordinarily prudent businessman in such matters is accustomed to use.” Winn–Dixie Stores v. Hardy, 138 Ga.App. 342, 344(4), 226 S.E.2d 142 (1976).

In a premises liability case, the plaintiff's threshold burden is to show that the premises were defective or hazardous. See Cohen v. Target Corp., 256 Ga.App. 91, 92, 567 S.E.2d 733 (2002); Carroll v. Ga. Power Co., 240 Ga.App. 442, 443(1), 523 S.E.2d 896 (1999). Although the candle holder's globe was made of glass, and perhaps hazardous to that extent, Aubain–Gray knew that she was handling a glass object and that people can be cut by glass, and Hobby Lobby did not possess superior knowledge of that danger. See Thomas, 284 Ga.App. at 700, 644 S.E.2d 538 (basis of proprietor's liability is its superior knowledge of the peril). The gravamen of Aubain–Gray's complaint, however, is that Hobby Lobby created a hazardous condition by displaying an item that appeared to be of one piece, but in fact consisted of multiple pieces, and by failing to provide any signage or warning to alert an invitee that there were fragile or multi-piece items on display. But “[m]erely stating that a condition is dangerous does not constitute evidence that it is so.” Ford, 277 Ga.App. at 709, 627 S.E.2d 376. And although Aubain–Gray suffered an unfortunate injury, the occurrence of her injury, without more, does not itself show the existence of a hazardous condition or instrumentality. See Metts v. Wal–Mart Stores, 269 Ga.App. 366, 367–368, 604 S.E.2d 235 (2004) (although boxes fell from a display rack, injuring plaintiff, there was no evidence of a dangerous condition on the premises). Aubain–Gray did not come forward with any evidence to show that a display of a multi-piece item such a glass candle holder is a hazard. See Ford, 277 Ga.App. at 709, 627 S.E.2d 376 (finding that plaintiff failed to submit competent evidence, such as expert testimony, that the chair at issue was defective or hazardous).

Furthermore, Hobby Lobby “is not obligated to protect its customers from any object that could present a danger to them.” Thomas, 284 Ga.App. at 701, 644 S.E.2d 538. And “[a]n owner has no duty to foresee and warn against dangers which are not reasonably expected, and which would not occur except under exceptional circumstances or from unexpected acts of the person injured.” (Citation and punctuation omitted.) Id. See Branch v. Branch, 182 Ga.App. 728, 356 S.E.2d 759 (1987) (accord). Here, Hobby Lobby's manager testified that there had not been an incident at the store in which a customer had been injured by a multi-piece glass item. In his experience, most of the time customers would handle a candle holder with two hands. Aubain–Gray does not point to evidence of a similar injury at a Hobby Lobby store. Thus, there is a lack of evidencethat Hobby Lobby could reasonably expect, absent exceptional circumstances, that a customer would view a multi-piece candle holder as a one-piece vase and so handle it in a way leading to injury. See, e.g., Thomas, 284 Ga.App. at 702, 644 S.E.2d 538 (finding that the manner in which plaintiff was injured was not foreseeable because “ none of the accidents [at Home Depot stores] involving tomato towers was in any way similar to the manner in which [plaintiff...