Borders v. Board of Trustees, VFW

• Decision Date: 20 March 1998
• Docket Number: No. A97A2079.,A97A2079.
• Citation: 231 Ga. App. 880,500 S.E.2d 362
• Parties: BORDERS v. BOARD OF TRUSTEES, VETERANS OF FOREIGN WARS CLUB 2875, INC.
• Court: Georgia Court of Appeals

500 S.E.2d 362

231 Ga. App. 880

BORDERS v. BOARD OF TRUSTEES, VETERANS OF FOREIGN WARS CLUB 2875, INC.

No. A97A2079.

Court of Appeals of Georgia.

March 20, 1998.

Reconsideration Denied April 2, 1998.

Certiorari Denied September 11, 1998.

Jeffrey G. Gilley, John E. Kardos, Athens, for appellant.

McLeod, Benton, Begnaud & Marshall, Richard L. Brittain, Athens, Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Atlanta, for appellee.

ELDRIDGE, Judge.

Sixty-seven-year-old Ida Mae Borders filed suit against the Veterans of Foreign Wars Club 2875, Inc. ("VFW") for damages arising out of a fall she sustained at a VFW dance when a fellow invitee, Clarence Hawkins, staggered into her and knocked her to the floor, breaking her foot, leg, and fracturing her hip. In her complaint, Borders asserted that Hawkins was obviously intoxicated, that such intoxication presented a danger to invitees, that the VFW Club knew or should have known of Hawkins' intoxication, and that its failure to remove him from the premises breached its duty to the plaintiff to keep the premises safe for her as an invitee. The VFW moved for summary judgment, which was granted. Here, Borders appeals the trial court's granting of that motion.

The trial court determined that summary adjudication was appropriate because, while Borders may have established constructive knowledge of the hazard on the part of the VFW, there was "no indication that Clarence Hawkins was obviously intoxicated at the Saturday night dance," i.e., the VFW had no actual knowledge of the hazard giving rise to a duty to remove it. In addition, the trial court found that Borders did not establish "her ignorance of the danger" so as to preclude her assumption of the risk of injury caused by "the possibility that drunken patrons would be present."

Because (a) the record contains sufficient evidence demonstrating Hawkins' intoxication at the dance, and (b) the VFW failed to present evidence showing Borders had actual knowledge of the specific danger presented by Hawkins, the trial court's granting of summary judgment was error.

(1) a. On summary judgment, a plaintiff may assert a defendant's actual or constructive knowledge of a hazard. "Whether defendants are entitled to summary judgment depends upon whether defendants presented sufficient evidence to show they had neither actual nor superior constructive knowledge of the alleged hazard." (Emphasis supplied.) Thompson v. Regency Mall Assoc., 209 Ga.App. 1, 3, 432 S.E.2d 230 (1993); Food Giant v. Cooke, 186 Ga.App. 253, 254, 366 S.E.2d 781 (1988). "Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises [for the hazard]. [T]he burden would be upon [the VFW], as the movant for summary judgment, to show that, as to its lack of constructive knowledge under either theory, no genuine issue remained." Food Giant v. Cooke, 186 Ga.App. 253, 254(1), 366 S.E.2d 781 (1988); Mallory v. Piggly Wiggly Southern, 200 Ga.App. 428, 429, 408 S.E.2d 443 (1991).

Here, the record shows that the VFW hires security guards whose task it is to remove intoxicated patrons so they are not a hazard to other patrons. They were in Hawkins' immediate vicinity of the bar and dance floor. In light of this information, the trial court made the factual finding that "Plaintiff may be able to establish Defendant's constructive knowledge of the hazard posed by drunken patrons. There is some evidence that VFW's security guards have ejected intoxicated patrons in the past.... There were security guards at the VFW on [that] Saturday night." Accordingly, the trial court's focus on the VFW's actual knowledge of Hawkins' intoxication was incorrect. With constructive knowledge, the issue is not what the VFW/security guards actually knew, but what they should have known.

In that regard, the record contains testimony from James Wheless, who took Hawkins to the VFW that night. Wheless stated that he picked Hawkins up around 7:00 p.m. to drive to the VFW; that Hawkins had been drinking when he picked him up; that Hawkins drank a beer in the truck on the way to the VFW; that he saw Hawkins drinking beer at the VFW; that Hawkins was removed from the VFW by security guards after Borders' fall; that he found Hawkins intoxicated at Allen's Bar approximately an hour later; and that Hawkins was as intoxicated at the VFW as he was at Allen's Bar. Allen's Bar is "where [Hawkins] hung out at Cheap brew. Cheap brew."

The pleadings further show that Hawkins only has one half of his stomach and admits that he cannot "handle too much alcohol"; that Hawkins was at the VFW from approximately 7:00 p.m. to 8:45 p.m. before he was ejected after stumbling into Borders; that Hawkins purchased alcohol from VFW employees during that time period; that a VFW security guard ejected Hawkins and told Hawkins that he was being ejected because he was intoxicated; that the VFW security guard told Hawkins that he could smell alcohol on Hawkins; and that a VFW security guard told Borders that Hawkins had been ejected because he was intoxicated. The record also contains an admission by Hawkins that he was openly intoxicated at the VFW.

Hawkins' condition of intoxication was such that it was possible for a VFW employee to "smell alcohol" on Hawkins. Further, prior to the fall a VFW employee could have noticed the same degree of intoxication that was so apparent to the VFW immediately after the fall that the VFW ejected Hawkins from the premises for being drunk and permanently "banned" him from the VFW. The VFW failed to present any evidence to meet its burden on summary judgment to negate constructive knowledge of the hazard as shown by the pleadings and found by the trial court.

Accordingly, the trial court erred in granting summary judgment based on a determination that there was "no indication that Clarence Hawkins was obviously intoxicated at the Saturday night dance." The record contains sufficient evidence of Hawkins' intoxication to put to a jury the question of whether the VFW exercised ordinary care in failing to remove him prior to plaintiff's fall.

(b) "In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff's part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff's comprehension of general, non-specific risks that might be associated with such condition or activities." (Punctuation omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864, 471 S.E.2d 866 (1996). "It is a plaintiff's knowledge of the specific hazard which precipitates the [fall] which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids." Telligman v. Monumental Properties, 161 Ga.App. 13, 16, 288 S.E.2d 846 (1982).

Further, "the defendant has the evidentiary burden as to the issue of the plaintiff's negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent, i.e., that the defendant had actual or constructive knowledge of the existence of a hazard on its premises. Only after the defendant has produced evidence of the plaintiff's negligence does the plaintiff have the burden of producing rebuttal evidence[.]" Robinson v. Kroger Co., 268 Ga. 735, 748, 493 S.E.2d 403 (1997).

Herein, the VFW presented no evidence demonstrating that Borders had actual knowledge of the danger; understood and appreciated the specific, particular risk of harm associated with such danger; and voluntarily exposed herself to that risk by attending the dance. Borders had no burden to demonstrate she did not assume the risk. Accordingly, the trial court erred in determining (1) that Borders' general awareness of "the possibility that drunken patrons may be present" at the VFW gave her equal knowledge of the specific hazard presented by an intoxicated Hawkins staggering into her and knocking her to the floor, and (2) that Borders had the burden to negate an assumption of the risk defense prior to such being raised by the VFW through the introduction of evidence.

2. The dissent's Dram Shop analysis is present herein solely because the language of that Act is favorable to the proprietor/defendant. Borders...