Brown v. American Multi-Cinema, Inc.

Decision Date07 July 2008
Docket NumberNo. A08A0653.,A08A0653.
Citation664 S.E.2d 838,292 Ga. App. 505
PartiesBROWN et al. v. AMERICAN MULTI-CINEMA, INC. et al.
CourtGeorgia Court of Appeals

A. Thomas Stubbs, Decatur, for appellants.

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

ADAMS, Judge.

Nancy Sue Brown and Harry Wayne Brown, Sr. brought suit against American Multi-Cinema, Inc. (AMC), after Nancy Brown tripped and fell in the AMC theater at Southlake Mall in Clayton County. The trial court granted summary judgment in favor of AMC, and the Browns appeal.1

In ruling on a motion for summary judgment, we give the opposing party the benefit of all reasonable doubt and "construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment." (Footnotes omitted.) Beasley v. Northside Hosp., 289 Ga.App. 685, 685-686, 658 S.E.2d 233 (2008). "When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence." (Footnote omitted.) Id. at 686, 658 S.E.2d 233.

Viewed in that light, the evidence shows that on or about December 25, 2003, Nancy Brown, her daughter Robin Brown, and other family members were viewing a movie in one of the auditoriums at the AMC theater. While the movie was playing, AMC employee Jorge Quinones noticed a drink spilled on the carpet outside the Browns' auditorium. Quinones picked up the ice, threw away the cup and mopped up the spilled liquid with Dyna-Wipes, which are big, thick, absorbent cotton wipes. He reduced the wet area to less than one foot in circumference, and then placed a folding, yellow plastic "wet floor" sign in an upright position directly above the wet area. Quinones placed the sign about 12 to 17 steps, which translates to approximately 19 to 26 feet, from the entrance to the auditorium.

Approximately five minutes later, the movie-goers emerged from the auditorium. Nancy Brown, who was in the middle of the exiting crowd, tripped when her toe caught in the open handle of the "wet floor" sign, which had collapsed and was lying flat on the floor. It is undisputed that Nancy Brown did not slip on the wet area, but tripped on the sign. She said she did not see the sign on the floor because of all the people around her. A man "just ahead" of the Browns stopped to help and told them that he had tripped over the sign moments before, but had not been able to get back to remove the sign. As a result of the fall, Nancy Brown dislocated her toe, broke bones in her foot and re-injured her back. At some point, Robin Brown noticed three ushers standing near the door where the crowd exited the auditorium.

The evidence demonstrated that Quinones was following AMC policy in cleaning the spill and placing the sign on the wet carpet, even though the spill was in an area designated for pedestrian traffic and the company would not endorse putting other objects — such as a trash can, a mop and bucket, or a sign without a warning — in the path of its patrons. This is because the "wet floor" sign is designed to warn patrons of a hazard in their path. AMC acknowledges that the "wet floor" signs are most effective when visible and the company was aware that people would be crowding out of the auditorium after a movie, possibly obscuring the sign. Despite this, the company had no specific policy requiring AMC employees to monitor the warning sign once it was in place. The company did, however, have a general requirement that its employees, including ushers, monitor the areas around them for potential hazards. Under this policy, AMC would have required an employee who observed a sign lying flat to put it back in an upright position. But there is no evidence that the employees at the AMC theater saw the collapsed sign that day, or, in fact, had ever observed a "wet floor" sign lying flat on the floor. The two employees deposed in the litigation both denied ever seeing a sign fall out of its upright position.

Nevertheless, the Browns provided expert testimony that the "wet floor" signs used by AMC "easily collapse when contacted by pedestrian traffic." The expert stated that it was "standard industry knowledge among retail establishments" that placing such signs in the path of a crowd creates a tripping hazard and should be avoided. He asserted that Quinones should have dried the wet area completely, instead of leaving it wet and placing a sign in the crowd's path. In the alternative, he opines AMC should have employed a sturdier method of warning its patrons of the hazard.

An invitee must prove two essential elements in order to recover for injuries sustained in a slip and fall: (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.

(Punctuation and footnote omitted.) Petrosky v. Embry Crossing Condo. Assn., 284 Ga.App. 354(1), 643 S.E.2d 855 (2007).

This Court previously applied these requirements to a situation in which a store patron tripped and fell on a collapsed, "wet floor" sign in Warberg v. Saint Louis Bread Co., 255 Ga.App. 352, 565 S.E.2d 561 (2002). There, the patron entered the store from a mall entrance and was heading toward the bakery counter when she stepped on a collapsed "wet floor" sign. The sign scooted out from under the patron causing her to fall. This Court found that the hazard at issue was the collapsed sign lying flat on the floor. The Court rejected the Warbergs' assertion that an employee's "knowledge of the properly positioned sign gave the Bread Company actual knowledge of this hazard because the sign might be knocked down," and instead concluded that the store had no actual knowledge of the hazard. (Emphasis in original.) Id. at 354(1). 565 S.E.2d 561. The Court reached this conclusion despite the fact that store employees previously had observed signs being knocked flat by pedestrian traffic. Id. at 353, 565 S.E.2d 561.

The Warberg opinion also found no issue of fact on the issue of constructive knowledge, noting that a plaintiff may show such knowledge in two ways:

(1) by evidence that an employee of the proprietor was in the immediate vicinity and easily could have seen and removed the hazard or (2) that the hazard had been on the floor long enough that (a) it would have been discovered if the proprietor had exercised reasonable care in inspecting its premises and (b) it would have been removed if the proprietor exercised reasonable care in cleaning.

(Punctuation and footnote omitted.) Id. at 354(2), 565 S.E.2d 561. Considering the first of these methods, the Court found that no factual issue existed as to whether the nearest store employees could have seen the hazard and removed it, even though one of them saw the collapsed sign from her station behind the bakery counter after the fall. The Court noted that the employee was occupied with her duties behind the counter and even the plaintiff admitted that there were a lot of people in the store at the time. In fact, a line had formed at the bakery counter. Id. at 355(2)(a), 565 S.E.2d 561. The Court also found that no issue existed as to the store's inspections under the second method. The area had been inspected a few minutes before the fall, and the inspecting employee saw the sign sitting upright. Thus, there was no evidence that the hazard even existed until shortly before the fall. Id. at 356(2)(b), 565 S.E.2d 561.

Relying upon Warberg, the trial court in this case found that the "wet floor" sign had been properly placed by Quinones, and there was no evidence that anyone, including AMC, had actual notice of the collapsed sign. Further, the court found no factual dispute that AMC's employees received proper training in treating spills, but in any event found the issue to be irrelevant because Nancy Brown tripped on a collapsed sign and not the upright sign as placed by Quinones.

The Browns contend,...

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    • Georgia Court of Appeals
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