Crebs v. Bass Pro Outdoor World

• Decision Date: 25 June 2021
• Docket Number: A21A0299
• Citation: 860 S.E.2d 802,360 Ga.App. 121
• Court: Georgia Court of Appeals
• Parties: CREBS et al. v. BASS PRO OUTDOOR WORLD et al.

360 Ga.App. 121

860 S.E.2d 802

CREBS et al.

v.BASS PRO OUTDOOR WORLD et al.

A21A0299

Court of Appeals of Georgia.

June 25, 2021

H. Craig Stafford, Hinesville, for Appellant.

Parks Kalervo Stone, Atlanta, William Shawn Bingham, for Appellee.

Markle, Judge.

During a visit to a Bass Pro shop in 2017, Amanda Crebs ("Amanda") injured her knee when she tripped and fell over decorative fencing that protruded into the walkway. Thereafter, Amanda and her husband (collectively "the plaintiffs") sued Bass Pro Outdoor World and the general manager, Dale White, (collectively "the defendants") for premises liability, vicarious liability, and loss of consortium.¹ The trial court granted summary judgment to the defendants, finding that the fence was an open and obvious condition. The plaintiffs now appeal. For the reasons that follow, we affirm.

Whether summary judgment is granted or denied, that decision enjoys no presumption of correctness on appeal, and an appellate court must satisfy itself that the requirements of OCGA § 9-11-56 (c) have been met. And in conducting this de novo review, we are charged with "viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) River Place at Port Royal Condo. Assn. v. Sapp , 358 Ga. App. 632, 856 S.E.2d 28, 31-32 (2021). Under OCGA § 9-11-56, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Although summary judgment generally is not appropriate in routine negligence and premises liability cases, where "the evidence is plain, palpable and undisputable," summary judgment is warranted. Robinson v. Kroger Co. , 268 Ga. 735, 739 (1), 493 S.E.2d 403 (1997).

So viewed, the record shows that Amanda and her husband took their young son to the Bass Pro Shop in Savannah in 2017 so he could have his picture taken with Santa. When they entered the store, Amanda took a shopping cart and placed her son in the seat. They walked to the kiosk to get their timed ticket for Santa, and then proceeded through the aisles to do some shopping and participate in some of the activities the store offered while families were waiting.

When it was close to their ticket time, Amanda's husband got in line while Amanda and her son continued with the activities. As her husband approached the front of the line, Amanda parked her cart to the side of an aisle, removed her son from the seat, and, carrying the child, made her way through the aisle to hand him over the rope to her husband. As she manuevered through the aisle, Amanda struck her leg on a portion of the eighteen-inch split- rail fence that protruded about three inches into the walkway, and fell, landing on her knee and breaking her patella. The injury required surgery.

The plaintiffs filed suit, and, in her deposition, Amanda stated that she knew the fence was there. She explained that she had noticed it was part of the display; nothing obstructed her view as she walked through the aisle; and she believed she could navigate the aisle while carrying her child. She further explained that she was paying attention to her surroundings, but she was not looking down as she walked, and the protrusion was not obvious to her. She believed there was sufficient space for her to pass through the aisle, although the cart was too large to fit. The defendants submitted deposition testimony from two human factors experts, who disagreed about whether the child blocked Amanda's view of the fence and whether she would have seen the protruding portion.

The defendants moved for summary judgment, arguing that Amanda had actual or constructive knowledge of the fence, and it was an open and obvious static condition that was plainly visible. Following a hearing, the trial court granted the motion, finding that the fence was a hazard, but that it was open and obvious, and Amanda had equal knowledge of it. The plaintiffs now appeal.

In related enumerations of error, the plaintiffs argue that the trial court failed to construe the evidence in the light most favorable to them, and erred in finding that the hazard was open and obvious, and that Amanda had actual knowledge of it. We disagree.

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. Accordingly, the fundamental basis for an owner or occupier's liability is that party's superior knowledge of the hazard encountered by the plaintiff. 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.

(Citations and punctuation omitted.) D'Elia v. Phillips Edison & Co., Ltd. , 354 Ga. App. 696, 698, 839 S.E.2d 721 (2020). As we have explained, a property owner has a duty to alert invitees to "hidden dangers or defects not observable " to them. (Emphasis supplied.) Williams Investment Co. v. Girardot , 354 Ga. App. 762, 763, 841 S.E.2d 436 (2020).

When a claim involves a static condition,²

the rule is well established that the basis of the proprietor's liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn [her] and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does. If nothing obstructs the invitee's ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.

(Citations and punctuation omitted; emphasis supplied.) McLemore v. Genuine Parts , 313 Ga. App. 641, 643, 722 S.E.2d 366 (2012) ; see also Rentz v. Prince of Albany , 340 Ga. App. 388, 390 (1), 797 S.E.2d 254 (2017) ("corn hole" game was open and obvious static condition); Ridley v. Dolgencorp , 353 Ga. App. 561, 563, 839 S.E.2d 26 (2020) (concrete parking abutment was open and obvious static condition and thus proprietor was not liable for invitee's trip and fall). As we have explained, "in everyday life, persons are required to negotiate floors, steps, and doorways," and the defendants are not responsible for hazards that were open and obvious, and could have been avoided in the use of ordinary care. (Citation omitted.) D'Elia , 354 Ga. App. at 699, 839 S.E.2d 721.

Construing the evidence in the light most favorable to the plaintiffs, the record shows that Amanda observed the fence as part of the display before she entered the aisle; she had walked through other aisles in the store; the split-rail fence protruded about three inches into the aisle; and nothing obstructed Amanda's view. There is no dispute that the fencing was visible, that there was sufficient lighting, and that the fencing did not blend into its surroundings. Accordingly, because the fencing was an open and obvious static condition, Amanda had equal knowledge of the hazard, and the defendants were entitled to summary judgment.³ Rentz , 340 Ga. App. at 390 (1), 797 S.E.2d 254 ; Ridley , 353 Ga. App. at 563, 839 S.E.2d 26 ; D'Elia , 354 Ga. App. at 699, 839 S.E.2d 721.

Nevertheless, the plaintiffs contend that summary judgment was improper because Amanda did not see the protruding fence or appreciate the risk. But, we have explained that a plaintiff is required to

exercise ordinary care for her own safety, and must by the same degree of care avoid the effect of the merchant's negligence after it became apparent to her or in the exercise of ordinary care she should have learned of it. She must make use of all her senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to her.

(Citation and punctuation omitted.) Rozy Investments v. Bristow , 276 Ga. App. 278, 281 (4), 623 S.E.2d 171 (2005). Fencing that obviously sticks out into the walkway is the type of hazard "which any person with ordinary, common sense would recognize as something that might cause a person to trip, slip, or fall." Houston v. Wal-Mart Stores East , 324 Ga. App. 105, 108 (1), 749 S.E.2d 400 (2013).

Admittedly, a plaintiff is not required to "maintain a constant lookout." (Citation omitted.) Teston v. SouthCore Constr. Inc. , 336 Ga. App. 733, 736, 783 S.E.2d 921 (2016). But, in this case, the record shows that the protruding fence and its potential danger would have been obvious and ascertainable with the use of ordinary care.⁴ See Pirkle v. Robson Crossing , 272 Ga. App. 259, 261, 612 S.E.2d 83 (2005) ("Even if the [walkway] was hazardous as plaintiff asserts, the condition was open and obvious, and thus, in the exercise of ordinary care, she could have avoided it. There is no duty to warn of the obvious.") (citation and punctuation omitted); see also City of Brunswick v. Smith , 350 Ga. App. 501, 504, 829 S.E.2d 781 (2019) (pothole that was not concealed was open and obvious static defect of which plaintiff should have been aware); Houston , 324 Ga. App. at 107-108 (1), 749 S.E.2d 400 (summary judgment was proper despite plaintiff's argument that he did not grasp the specific hazard because "this is not a case...