Callaway Gardens Resort, Inc. v. Grant

• Decision Date: 31 August 2022
• Docket Number: A22A0856
• Citation: 365 Ga.App. 222,878 S.E.2d 65
• Parties: CALLAWAY GARDENS RESORT, INC. et al. v. GRANT et al.
• Court: Georgia Court of Appeals

365 Ga.App. 222

878 S.E.2d 65

CALLAWAY GARDENS RESORT, INC. et al.

v.GRANT et al.

A22A0856

Court of Appeals of Georgia.

August 31, 2022

Drew Eckl & Farnham, Leslie Paige Becknell, Brunswick, Hall F. McKinley III, Atlanta, Ann Hunsberger Searcy, Brunswick, for Appellant.

Bondurant Mixson & Elmore, Naveen Ramachandrappa, Atlanta; James Alexander Rice Jr., Appellee.

Phipps, Senior Appellate Judge.

Hazel Holder died as a result of injuries she sustained when she fell while walking on a sidewalk at the Callaway Gardens Resort. Her surviving children and representatives of her estate sued Callaway Gardens Resort, Inc., and the Ida Cason Callaway Foundation (collectively, "Callaway"), seeking damages for Holder's injuries and death. Callaway now appeals from the denial of its motion for summary judgment and the grant of partial summary judgment to the plaintiffs. Callaway contends that it, rather than the plaintiffs, was entitled to summary judgment on the issues of causation and the open and obvious nature of the alleged hazard. For the reasons that follow, we reverse the grant of partial summary judgment to the plaintiffs and affirm the denial of summary judgment to Callaway.

The record shows that, in March 2017, 80-year-old Holder visited Callaway Gardens with several family members, including her daughter Cynthia Grant. At the time, Holder was using a walking cane. Early one afternoon, as Holder and Grant walked along a paved sidewalk they had not previously traversed, Holder suddenly "fell forward [and] slightly to her left" and landed on the pavement. After she fell, Holder sat up and said, "[O]h, oh, I just caught my toe on that sidewalk[,] and down I went."¹ Grant then "turned back" and saw a height differential in a sidewalk expansion joint, one side of which, according to Grant, "was raised significantly." When asked in a deposition whether anyone pointed out the defect to Callaway personnel, Grant testified that Holder told a Callaway security guard, "[T]hat's what I caught my foot on."

Grant — who had been walking on her mother's right side before her mother fell — did not see Holder's foot catch on the sidewalk. Grant testified in her deposition that, after she sat down to help her mother, she had no difficulty seeing the height differential. She added, however, "Not being above it looking down at it, you could tell," whereas when one is walking, "you just, you see it's just a sidewalk." Holder suffered a head injury

as a result of the fall and died the next day at a hospital.

Grant and her siblings, as Holder's surviving children, and Grant and one of her sisters, as representatives of Holder's estate, sued Callaway, alleging that its negligence in failing to keep the grounds of the resort in a safe condition caused Holder's fall and resulting injuries and death. Following discovery, Callaway moved for summary judgment, arguing, as relevant to this appeal, that the sidewalk height differential was an open and obvious static condition and that, regardless, the plaintiffs failed to establish that the defect caused Holder's fall. The plaintiffs thereafter cross-moved for partial summary judgment on all issues other than damages.

The trial court denied Callaway's motion for summary judgment and granted partial summary judgment to the plaintiffs. As relevant here, the court concluded that, through the deposition testimony of its witnesses, Callaway admitted that the uneven sidewalk (a) was a hazardous condition that was not open and obvious and (b) caused Holder's fall. This appeal followed.

"We review de novo a grant or denial of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant." Henry v. Griffin Chrysler Dodge Jeep Ram , 362 Ga. App. 459, 460, 868 S.E.2d 827 (2022).

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the movant meets this burden, the nonmovant cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.

Id. at 460-461, 868 S.E.2d 827 (citations and punctuation omitted); see OCGA § 9-11-56 (c), (e). "Furthermore, while a movant's evidence is to be carefully scrutinized, a respondent's evidence is to be treated with indulgence." Walker v. Sapelo Island Heritage Auth. , 285 Ga. 194, 197 (2), 674 S.E.2d 925 (2009) (citation and punctuation omitted). "Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate." Plantation at Bay Creek Homeowners Assn. v. Glasier , 349 Ga. App. 203, 204, 825 S.E.2d 542 (2019) (citation and punctuation omitted).

1. Callaway first contends that (a) the trial court erred by holding that the uneven sidewalk caused Holder's fall and (b) to the contrary, Callaway is entitled to summary judgment because there is insufficient evidence of causation. We agree with the first proposition but reject the second.

To state a cause of action for negligence in Georgia, "a plaintiff must show four elements: a duty, a breach of that duty, causation and damages." Goldstein, Garber & Salama, LLC v. J. B. , 300 Ga. 840, 841 (1), 797 S.E.2d 87 (2017) (citation and punctuation omitted); accord Wilcher v. Redding Swainsboro Ford Lincoln Mercury , 321 Ga. App. 563, 565-566 (1), 743 S.E.2d 27 (2013). Thus, "[c]ausation is always an essential element in slip or trip and fall cases." Canaan Land Properties v. Herrington , 330 Ga. App. 17, 19 (1), 766 S.E.2d 493 (2014) (citation and punctuation omitted). And "[t]o recover damages in a tort action, a plaintiff must prove that the defendant's negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury." Atlanta Obstetrics and Gynecology Group v. Coleman , 260 Ga. 569, 569, 398 S.E.2d 16 (1990). Here, while Callaway nominally frames this issue as one of "proximate cause," the substance of the parties’ arguments (and the trial court's rulings) instead implicate cause in fact. Compare id. at 571 (1) (a), 398 S.E.2d 16 ("Causation, or cause ‘in fact,’ is the determination that the defendant's acts caused a claimed injury.") (Weltner, J., concurring specially), with McAuley v. Wills , 251 Ga. 3, 7 (5), 303 S.E.2d 258 (1983) (distinguishing between cause in fact and proximate cause, which "is in the nature of a policy decision" that addresses whether "the defendant's conduct and the plaintiff's injury are too remote for the law to countenance a recovery").

On a motion for summary judgment addressing causation, while the nonmovant "is entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative." Canaan Land Properties , 330 Ga. App. at 20 (1), 766 S.E.2d 493 (citation and punctuation omitted). Thus, "[w]here the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven.... [W]hen ... the probabilities are at best evenly balanced it is appropriate for the court to grant summary judgment to the defendant." Id. at 19 (1), 766 S.E.2d 493 (citation and punctuation omitted). In other words, to survive summary judgment, a plaintiff "must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result." J. H. Harvey Co. v. Reddick , 240 Ga. App. 466, 468 (1) (a), 522 S.E.2d 749 (1999) (citation and punctuation omitted). To do so in a case involving a fall, a plaintiff must point to "some evidence beyond speculation that a condition of the premises caused the fall." Bryan Bank & Trust v. Steele , 326 Ga. App. 13, 15 (1), 755 S.E.2d 828 (2014) (citation, punctuation, and emphasis omitted). Nevertheless, circumstantial evidence that raises a reasonable inference of the cause of a fall may be sufficient to survive summary judgment. Shepherd v. Holmes , 184 Ga. App. 648, 649 (2), 362 S.E.2d 396 (1987).

(a) Grant of summary judgment to plaintiffs. Viewed in the light most favorable to Callaway, see Henry , 362 Ga. App. at 460, 868 S.E.2d 827, there are disputed factual issues as to whether the sidewalk condition caused Holder's fall. In its holding to the contrary, the trial court determined that: (i) Callaway admitted that Holder "did nothing to cause or contribute to her fall"; and (ii) Callaway's witnesses "admitted the hazard caused Ms. Holder's fall." The record does not support these conclusions.

In support of its determination that Callaway admitted that Holder did not cause or contribute to her fall, the trial court cited the deposition testimony of Robert Seymour, who was a Callaway Gardens security officer in March 2017, and Wendy Nixon, Callaway Gardens Resort, Inc.’s Rule 30 (b) (6) representative.² It is undisputed, however, that neither witness was present when Holder fell. And in that regard, neither witness expressed an opinion on whether Holder caused or contributed to her fall: Seymour testified only that he did not know whether Holder did anything that caused her to fall, and Nixon similarly testified only that she was unaware of anything that Holder may have done to cause or contribute to her fall.

That testimony plainly is insufficient to establish, as a matter of law, that Holder in fact did not cause or contribute to her fall.

In support of its determination that Callaway's "witnesses" admitted that "the hazard caused" Holder's fall, the trial court cited only Nixon's deposition testimony. Once again, however, Nixon made no such admission. She rather testified only that...