Benefield v. Tominich.

• Decision Date: 22 March 2011
• Docket Number: No. A10A2242.,A10A2242.
• Citation: 308 Ga.App. 605,708 S.E.2d 563
• Parties: BENEFIELDv.TOMINICH.
• Court: Georgia Court of Appeals

308 Ga.App. 605

708 S.E.2d 563

BENEFIELD

v.TOMINICH.

No. A10A2242.

Court of Appeals of Georgia.

March 22, 2011.

Jack Freddie Witcher, Daniel Bruce Greenfield, Bremen, for appellant.Mozley, Finlayson & Loggins, Allison Marie Escott, Atlanta, for appellee.DILLARD, Judge.

In this premises-liability action, Margaret Benefield sued April Marie Tominich, doing business as Taylor's Gin Store (“TGS”), alleging that TGS breached a duty it owed her as an invitee when she tripped on a rubber mat outside of the entrance to the store and suffered injuries as a result. TGS filed a motion for summary judgment, which the trial court granted. Benefield now appeals, arguing that the trial court erred in finding that there existed no genuine issue of material fact as to whether TGS had superior knowledge of the hazard posed by the rubber mat. For the reasons set forth infra, we are constrained to reverse.

Viewed in the light most favorable to Benefield (i.e., the nonmoving party), ¹ the record shows that on August 1, 2007 around noon, Benefield went to TGS—which operates as a gasoline station and a convenience store—to pick up a few groceries. After parking and exiting her vehicle, Benefield stepped onto an orange-colored rubber mat that had been laid across a rise in the pavement serving as a wheelchair ramp (leading up to the sidewalk). Although Benefield was a frequent customer of TGS and had walked across this same rubber mat on numerous occasions, she, nevertheless, tripped on a curled-up corner of the mat that afternoon and fell hard to the ground. As a result of her fall, she suffered abrasions and a broken wrist, and was unable to get back on her feet. Lying on the ground, Benefield cried out for help, but the sole TGS clerk working inside the store could not hear her pleas for assistance. Consequently, she did not receive assistance until another customer arrived at the store approximately 20 minutes later.

Thereafter, Benefield sued TGS to recover damages for the injuries she suffered as a result of her trip and fall on the rubber mat located outside the convenience store. TGS filed an answer, and discovery ensued. In her deposition testimony, Benefield acknowledged that the subject mat had been in place for several months and that she had walked over it on numerous occasions. However, she further testified—during her deposition and by affidavit—that because she was not looking down during her walk up to the store, she did not notice until after her fall that a corner of the mat had curled up, causing her to trip and fall. No employees of TGS were deposed, but both the store's manager and its sole employee, who was on duty at the time of the accident, filed affidavits, averring that they had inspected the interior and exterior of the store, as well as the surrounding parking lot, for debris when the store opened in the morning, pursuant to a duty list that was distributed to all employees. The duty list, which was filed as an exhibit to both of the foregoing affidavits, directed that “[e]ach employee is responsible for keeping the store neat and tidy, inside and out, at all times,” as well as “[k]eeping the outside area free of debris (trash, cigarette butts, leaves, etc.).” Additionally, the store manager's affidavit specifically averred that she inspected the subject rubber mat when the store opened on the morning of the accident and did not notice any curling of its corners.

After discovery concluded, TGS filed a motion for summary judgment, arguing that it could not be held liable for Benefield's injuries because it had no constructive knowledge of the hazard posed by the rubber mat and because Benefield had equal or superior knowledge of the open and obvious hazard. Benefield filed a response, arguing that genuine issues of material fact remained as to whether TGS's inspection procedures were reasonable and thus whether TGS had constructive knowledge of the hazard. The trial court concluded that TGS lacked superior knowledge of the hazard posed by the mat because it was open and obvious, and granted summary judgment in favor of TGS. This appeal follows.

1. In her sole enumeration of error, Benefield contends that the trial court erred in granting summary judgment in favor of TGS, arguing that genuine issues of material fact remain as to whether TGS lacked superior knowledge of the hazard posed by the rubber mat that caused her to trip and fall. We agree.

The standards for summary adjudication are well settled. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” ² A summary judgment enjoys “no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9–11–56(c) have been met.” ³ Indeed, in our de novo review of a trial court's grant of a motion for summary judgment, we are charged with viewing the evidence, “and all reasonable conclusions and inferences drawn from the evidence ... in the light most favorable to the nonmovant.” ⁴

With regard to premises-liability cases, our Supreme Court has held that (1) “as a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one's own safety are not susceptible of summary adjudication[,] but should [instead] be resolved by trial in the ordinary manner”; ⁵ and (2) “[t]he trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.” ⁶ In practical 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. ⁷

And in Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe,⁸ which “includes inspecting the premises to discover possible dangerous conditions of which the [proprietor] does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” ⁹ Nevertheless, in order for a plaintiff to recover damages for injuries sustained in a slip-and-fall action, “an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” ¹⁰ A plaintiff's evidentiary proof concerning the second prong of this test is not, however, “ shouldered until the defendant [first] establishes negligence on the part of the plaintiff.” ¹¹ Finally, we have previously held that “[f]loor mats subject to periodic folding, bunching, rolling, and shifting can constitute hazards for which landowners may be liable.” ¹² With the foregoing principles in mind, we now consider Benefield's sole enumeration of error.

As noted supra, the trial court's order granting summary judgment in favor of TGS held that it lacked superior knowledge of the hazard posed by the rubber mat. As such, we initially focus our analysis on TGS's knowledge of the hazard at issue in the case sub judice. And when, as here, it is undisputed that TGS “lacked actual knowledge of any alleged hazard, the case turns on whether constructive knowledge of the alleged hazard can be imputed to the [store].” ¹³ Constructive knowledge may be shown by demonstrating that (1) an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition prior to the fall, or (2) the hazardous condition had existed for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.¹⁴

In the case sub judice, it is undisputed that Benefield presented no evidence that the sole TGS employee on duty at the time of the accident was in her immediate vicinity when she tripped and fell to the ground. In fact, Benefield acknowledged that the TGS clerk was inside the store when the accident occurred and was unable to hear her cries for help. Nevertheless, Benefield vigorously disputes TGS's assertion that it exercised reasonable care in inspecting the premises on the day of her accident. And in this respect, we have previously held that “[c]onstructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.” ¹⁵ Thus, in order to prevail at the summary-judgment stage based on a lack of constructive knowledge, “the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” ¹⁶ Additionally, in order to withstand a motion for summary judgment, “the plaintiff need not show how long the hazard had been present unless the owner has [first] demonstrated its inspection procedures.” ¹⁷

And here, the TGS employee duty list provides generally that the outside of the store is to be kept neat and tidy at all times and, more specifically, that all shifts are responsible for keeping the outside area free of debris. The duty list, however, makes no mention of how frequently the outside area must be checked by the store's employees. Moreover, even were we to assume that the TGS duty list established a reasonable inspection procedure, “[t]he evidence must establish an adherence to customary inspection...