Bennett v. Marta, A12A0158.

• Decision Date: 03 July 2012
• Docket Number: No. A12A0158.,A12A0158.
• Citation: 12 FCDR 2236,730 S.E.2d 52,316 Ga.App. 565
• Parties: BENNETT v. MARTA.
• Court: Georgia Court of Appeals

316 Ga.App. 565

730 S.E.2d 52

12 FCDR 2236

BENNETT

v.MARTA.

No. A12A0158.

Court of Appeals of Georgia.

July 3, 2012.

Hilary Alison Wayne, Atlanta, for Reginald Bennett.

James William Scarbrough, Atlanta, for Metropolitan Atlanta.

BARNES, Presiding Judge.

Reginald Bennett was assaulted in the Hamilton Holmes MARTA station and sued MARTA for failing to keep its premises safe from reasonably foreseeable unlawful acts. MARTA answered and denied liability, and following discovery, moved for summary judgment, arguing that Bennett had equal or superior knowledge of the danger and failed to exercise ordinary care for his own safety. The trial court agreed and granted summary judgment to MARTA. After reviewing the record, including the depositions of Bennett and the MARTA agent on duty, as well as video recordings of the assault, we reverse.

“On appeal from the trial court's grant of summary judgment, we conduct a de novo review of the record to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact.” Walker v. Aderhold Props., 303 Ga.App. 710, 694 S.E.2d 119 (2010). Summary judgment is proper only when no issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Id. Generally, in premises liability cases,

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.

(Footnote omitted.) American Multi–Cinema, Inc. v. Brown, 285 Ga. 442, 444–445(2), 679 S.E.2d 25 (2009). See also OCGA § 51–3–1. Liability is these cases is based on the landowner's superior knowledge of perils on the property and the resultant danger to visitors. Gateway Atlanta Apts. v. Harris, 290 Ga.App. 772, 774(1), 660 S.E.2d 750 (2008). While a plaintiff who fails to exercise ordinary care for his safety may be precluded from recovery even if the landowner has superior knowledge of the risk,

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 be resolved by trial in the ordinary manner. The 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.

Robinson v. Kroger Co., 268 Ga. 735, 739(1), 493 S.E.2d 403 (1997).

Bennett, who is five feet three inches tall, was a regular MARTA customer, and on the night he was attacked, he asked a man in the elevator standing in front of him with a backpack to move over a little. Another passenger began to scold Bennett and the other man not to bump into her baby, and Bennett and the man told her they had not been talking to her. The woman began cussing at them, and continued “ranting and raving and carrying on” after they got off the elevator as Bennett headed toward his bus. When the woman began threatening to “whip [Bennett's] behind,” he responded that she did not know him and was not going to whip him. Another man on crutches who was with the woman “kind of picked up the slack where she left off about what he was going to do,” and continued to threaten him. Bennett answered, “[N]o, you're not,” and continued toward his bus stop.

Bennett became concerned that the man was “rounding up his little troops [from] all over the place,” and aware that the station had a gang problem, and suddenly four additional men surrounded him, all threatening to “kick his MFA.” Bennett observed to the man that he had a lot of friends, and a MARTA station agent, whose job was to “look for safety issues” walked up, put his hands on Bennett's shoulder, and said, “[D]on't worry about it. Don't waste your time. You know, it ain't worth it.” The gang of men dispersed and Bennett went to wait for his bus at the loop.

The agent testified that the station was a “fast-paced environment” that required video surveillance and a constant police presence nearby. Agents were trained in “verbal judo” to control tense situations, and are supposed to contact a police officer when a confrontation arises. A woman came up to him the night of this incident and reported that a fight was about to occur by the elevator, and the agent went to the area “because incidents happen all the time” and he was trained in conflict resolution. His job was to control the situation, and his goal was “protection, not confrontation.” When he arrived in the area he saw “six black males shouting at a middle-aged, heavyset black male,” and he tried to use his radio to contact Central Dispatch “to let them know what was going on,” but it did not work because his battery was too low. He told the group to break it up and go their separate ways or they would end up in jail, and several of the men agreed that the agent made sense. “Everybody stopped” and started to walk away.

The station agent “wanted to make sure [he] verbally resolved the situation,” because at that station, “you have a lot of situations.” He watched two of the men go to one side of the loop to wait for a bus, Bennett go to the other side to wait for his bus, and the other men walk off. The agent “was hoping they left” and because the men waiting for their buses were far apart and the situation appeared to have resolved, he returned to finish his lunch in the station office.

Bennett initially sat on the bench in the bus loop area that was furthest from the station and began talking on his cell phone, then got up and walked to an area closer to the station while he continued to talk. Two people walked by him and got on a bus that was waiting just forward of where Bennett was standing, then seven more people walked by. A woman sat on the bench just behind Bennett and another man sat on the bench just ahead of him. After Bennett had been standing and talking on his phone facing the station for almost four and a half minutes, two men approached him quickly. One passed Bennett then immediately turned back toward him as the other man stepped up and struck Bennett to the ground with enough force that he turned a complete somersault. Bennett got up and retrieved the cell phone and backpack that had been knocked from his hands as three more men approached quickly. Bennett began to walk quickly toward the front of the waiting bus and the five men followed. Bennett stopped and one of the men circled around and came straight at him, striking him again.

The men milled around Bennett as yet another patron walked by the group, but their actions are not clear from the recording because they are standing behind the bus shelter that is roofed and enclosed with glass panels. The woman who sat down in the shelter before the assault began remained seated during the incident while one of the mob stood directly in front of her. Bennett moved away from the crowd, into view of the security camera as an assailant struck him repeatedly, then moved back behind the shelter as he absorbed more blows. Suddenly five more men ran into view and joined the assault, and the mob moved down the sidewalk past the front of the waiting bus, hitting and kicking Bennett as they moved. During the assault, Bennett yelled for help. As he was on the ground, someone took money from his pocket and from his bookbag. One of the assailants raised a crutch over his head and slammed it down into Bennett's body, then the mob suddenly turned and ran away.

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