Cherokee Main St., LLC v. Ragan. TJX Cos.

• Decision Date: 20 February 2018
• Docket Number: A17A1819,A18A0025
• Citation: 813 S.E.2d 397
• Parties: CHEROKEE MAIN STREET, LLC v. RAGAN. Tjx Companies, Inc. v. Ragan
• Court: Georgia Court of Appeals

345 Ga.App. 405

813 S.E.2d 397

CHEROKEE MAIN STREET, LLC

v.RAGAN.

Tjx Companies, Inc.

v.Ragan

A17A1819

A18A0025

Court of Appeals of Georgia.

February 20, 2018

Reconsideration Denied March 27, 2018

Brandon George Day, Jerald Robert Hanks, Atlanta, for Appellant in A17A1819 and A18A0025.

William Morgan Akin, S. Lester Tate III, Cartersville, for Appellee in A17A1819.

William Morgan Akin, S. Lester Tate III, Cartersville, W. Matthew Wilson, Marietta, for Appellee in A18A0025.

McMillian, Judge.

In these consolidated appeals, Cherokee Main Street, LLC ("Cherokee") and TJX Companies, Inc. ("TJ Maxx") appeal from the trial court’s denial of their motions for summary judgment in a premises liability action filed by Pamela J. Ragan seeking to recover for injuries suffered when she was struck by a car in a shopping center parking lot. We find that Cherokee and TJ Maxx were entitled to summary judgment because Ragan has failed to show that they had superior knowledge of the hazard she alleges in this case. Accordingly, we reverse.

On appeal, this Court reviews the trial court’s summary judgment ruling under a de novo standard, construing the evidence in Ragan’s favor as the non-movant. 905 Bernina Avenue Coop. v. Smith/Burns LLC , 342 Ga. App. 358, 361 (1), 802 S.E.2d 373 (2017). So viewed, the evidence shows that TJ Maxx leased retail space in a shopping center from Cherokee, which owned the center. Ragan visited the shopping center on December 19, 2013, and after completing her shopping at another department store, she walked along the sidewalk fronting the center’s retail businesses to the TJ Maxx store, near where her car was parked. Ragan walked down a ramp leading from the sidewalk to the parking lot, where she stopped and looked both ways. It is undisputed that there was no crosswalk leading from the ramp across the parking lot. When Ragan stopped, she observed a car coming from the left, approximately two to three car lengths away. She then stepped into the vehicle’s travel lane, because her "mindset was that it would stop or had already stopped since it was a pedestrian crossing." Ragan testified that she assumed the car would stop because she would have stopped under the same circumstances. Although Ragan knew the car was there and kept it in the corner of her eye, she never made eye contact with the driver and "it wasn’t like [she] was really aware of it" until the "very last minute" when it hit her. The right front portion of the vehicle struck Ragan, knocking her to the ground.

Prior to this incident, Ragan had visited the shopping center dozens of times and previously had crossed the area of the parking lot where the incident occurred. She had also driven in the area in front of TJ Maxx and had never noticed stop signs in that area for cars.

In her premises liability suit, Ragan asserted that Cherokee and TJ Maxx violated their duty of care to her by failing to provide appropriate warnings requiring traffic in the area to stop and yield the right of way to pedestrians and by failing to designate a crosswalk on the pavement between the ramp and the parking area. Both defendants filed motions for summary judgment asserting that (1) they did not owe Ragan a duty to protect her against the danger that resulted in her injuries because they lacked superior knowledge of that danger and (2) Ragan’s own failure to exercise reasonable care for her own safety was the proximate cause of her damages. The trial court denied these motions, finding that issues of material fact existed as to whether TJ Maxx was negligent in failing to request that certain safeguards be placed near its store and as to whether Cherokee was negligent in failing to provide such safeguards. Under OCGA § 51-3-1, a person who owns or occupies land and "by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose,... is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." In order to recover on a premises liability claim, a plaintiff must show "(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." Robinson v. Kroger Co. , 268 Ga. 735, 748-49 (2) (b), 493 S.E.2d 403 (1997). Accordingly, "the fundamental basis for an owner or occupier’s liability [is] that party’s superior knowledge of the hazard encountered by the plaintiff." Id. at 736 (1), 493 S.E.2d 403. In other words, a plaintiff is not entitled to recovery if "the undisputed evidence demonstrates that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant." Norman v. Jones Lang LaSalle Americas, Inc. , 277 Ga. App. 621, 624, 627 S.E.2d 382 (2006). See also Forest Cove Apartments, LLC v. Wilson , 333 Ga. App. 731, 734, 776 S.E.2d 664 (2015) (no recovery where evidence demonstrated that plaintiff had equal knowledge of the dangerous condition).

Here, it is undisputed that the area where Ragan crossed the parking lot had no crosswalk, no stop signs, and no other pedestrian-related traffic signs. Ragan testified that nothing impeded her view of the area at the time of the accident, and she was not distracted. Further, the evidence showed that Ragan had been to the shopping center numerous times, and on several occasions, she had shopped at TJ Maxx and crossed the parking lot where the incident occurred. Therefore, to the extent that the lack of a crosswalk or traffic warnings constituted a defect on the property, as Ragan contends, that defect was open and obvious and Ragan had equal knowledge of any such defect. See Johnson v. Green Growth 1, LLC , 305 Ga. App. 134, 139, 699 S.E.2d 109 (2010) (where lack of barrier between children’s play area in apartment parking lot and route of vehicular traffic open and obvious, landlord lacked superior knowledge of defect) (physical precedent only); Barnes v. Morganton Baptist Assn. , 306 Ga. App. 755, 758 (1), 703 S.E.2d 359 (2010) (retaining wall at shopping center and drop-off therefrom constituted an open and obvious defect; property owner lacked superior knowledge...