Gilchrist v. Meldi Sub, LLC
| Decision Date | 07 March 2022 |
| Docket Number | A21A1678 |
| Parties | GILCHRIST v. MELDI SUB, LLC et al. |
| Court | Georgia Court of Appeals |
Anthony Gilchrist was injured when he fell on a walkway on the side of a building housing a sandwich shop and a convenience store. Based on the presence of a protruding cleanout plug and the absence of a railing around the edge of the walkway he sued the building owner and the lessees who operated the stores for negligence, negligence per se, and nuisance. The trial court granted summary judgment in favor of the defendants. We affirm the trial court's decision because the undisputed evidence shows that these conditions were open and obvious to someone exercising reasonable care under the circumstances. As a result, Gilchrist is deemed to have had equal knowledge of the conditions that caused him to fall which precludes recovery here.
In February 2017, Gilchrist went for a walk into town from his Hancock County home on the outskirts of Sparta.[1] He was joined on his walk by a friend, Tarsha Williams. The walk was for exercise, and Gilchrist did not plan to shop or otherwise conduct business along the way.
Gilchrist was born with an eye condition called retinitis pigmentosa and is legally blind. Gilchrist testified that he has never held a driver's license because of his visual impairment and has received Medicare and Social Security Disability Insurance payments since 2004. That said, as of the time of his accident, he was able to see silhouettes of people, cars animals, and "things of that nature." He was also able to see the ground well enough to avoid uneven pavement, tree limbs, and other obstructions. Before his accident, he had never used a cane or a walking stick.
As the pair approached town, they stopped to talk to an acquaintance who was pumping gas at an Exxon station. After a few minutes, Williams left to continue walking, but Gilchrist remained, telling Williams he would catch up with her. After finishing his conversation, Gilchrist walked from the gas pump to the sidewalk that ran along the storefront of the gas station's convenience store and an adjoining Subway shop. He chose that route because he was attempting to avoid the cars driving through the parking lot. Gilchrist did not enter either the convenience store or the Subway.
Once on the sidewalk, Gilchrist walked along the storefront to the end of the building and then turned to his left, believing he had reached the sidewalk running parallel to the street. He intended to cross that street, and he was paying attention to the cars on the street, looking for a break in the traffic. But rather than being on the sidewalk, Gilchrist was on the service walkway next to the building, which was elevated a few feet above ground level and had no railing.[2] Gilchrist took several steps and then stumbled, fell off the walkway, and landed on the ground below, sustaining various injuries.
Gilchrist testified that he did not know what caused him to fall. But an eyewitness said that Gilchrist "tripped over . . . a clean-out plug protruding up in the sidewalk." A photograph of the site shows a pipe-like object protruding from the middle of the walkway. An expert witness testified that this protruding "plumbing clean-out plug," as well as the lack of a railing on the elevated walkway, are violations of certain building codes and the Americans with Disabilities Act.[3]
Gilchrist sued the owner of the property, Sky Property Management, LLC, and lessees Dahi Mahi, Inc., which operated the Exxon, and Meldi Sub, LLC, which operated the Subway. The operative complaint alleges three claims: (1) negligence based on the absence of a railing on the walkway and the lack of signs warning of the danger; (2) negligence per se based on the "dangerous condition" created by the walkway, in violation of the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Georgia Access to Use of Public Facilities by Persons with Disabilities Act; and (3) nuisance.
All three defendants moved for summary judgment. Following a hearing, the trial court granted the defendants' motions in three separate orders. In each order, the court concluded that, Gilchrist was, at best, a licensee to whom the defendants could be liable only for willful or wanton injury, because he was not a customer on the property at the time of his injury. See OCGA § 51-3-2 (). Finding no evidence of any intentional or reckless conduct by the defendants that would give rise to a finding of "willful or wanton injury," the court concluded that there was no basis for imposing liability. The court's orders are silent on Gilchrist's claims for negligence per se and nuisance. Gilchrist appealed.
On appeal, orders granting or denying summary judgment are reviewed de novo. Johnson v. Omondi, 294 Ga. 74, 75 (751 S.E.2d 288) (2013). Summary judgment is appropriate where no genuine issues of material fact remain, such that the party seeking summary judgment is entitled to judgment as a matter of law. Id.
1. Gilchrist first contends that the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the defendants breached their duty to prevent willful or wanton injury to him.[4] Gilchrist does not appear to dispute that he was a licensee on the property at the time of his accident, or that as a licensee, he was owed by the defendants only the duty to avoid inflicting willful or wanton injury. See OCGA § 51-3-2. Gilchrist contends that the defendants in fact breached that duty by maintaining the walkway in the condition it was in at the time of the accident.
To begin with, we agree that Gilchrist was a mere licensee on the property here. Our Code defines a "licensee" as a person who is not "a customer, a servant, [or] a trespasser"; who "[d]oes not stand in any contractual relation with the [premises] owner"; and who "[i]s permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification." OCGA § 51-3-2 (a). Whether an injured person is classified as a licensee on another's property-rather than an "invitee," to whom the proprietor generally owes a higher duty of care-depends on the person's purpose: whether the person "at the time of the injury had present business relations with the [proprietor] which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience [or for] business with others." Stanton v. Griffin, 361 Ga.App. 205, 207 (1) (863 S.E.2d 548) (2021) (citation and punctuation omitted). Here, Gilchrist went onto the gas station property only for an impromptu chat with a friend and did not himself transact any business there, so he was properly considered a licensee. See Howard v. Gram Corp., 268 Ga.App. 466, 468 (602 S.E.2d 241) (2004) ( that a plaintiff who was on the premises just to accompany her daughter and had no business of her own there was a licensee).
Because he was a licensee, the defendants owed Gilchrist only a duty to avoid inflicting "willful or wanton injury" on him. OCGA § 51-3-2 (b) (). See Stanton, 361 Ga.App. 209 (2) ( that the duty owed to licensees is merely "not to injure them wilfully or wantonly"); Khalia, Inc. v. Rosebud, 353 Ga.App. 350, 353 (1) (b) (836 S.E.2d 840) (2019) (). Conduct that is "willful" is intended to cause harm; conduct that is "wanton" reflects a recklessness that is "equivalent in spirit" to an actual intent to cause harm. Ga. Dep't of Transp. v. Strickland, 279 Ga.App. 753, 754 (1) (632 S.E.2d 416) (2006).
The trial court concluded that Gilchrist's claims failed as a matter of law because he failed to introduce any evidence that the defendants acted with recklessness or any intent to cause harm. Gilchrist contends, however, that the trial court overlooked a line of cases holding that "it is usually wilful or wanton not to exercise ordinary care to prevent injury to a person who is known to be or may reasonably [be] expected to be within a hidden peril on one's premises." Hartley v. Macon Bacon Tune, Inc. 234 Ga.App. 815, 817 (507 S.E.2d 259) (1998). Accord Cooper v. Corporate Prop. Investors, 220 Ga.App. 889, 891 (470 S.E.2d 689) (1996). Gilchrist contends that the defendants here owed a duty of ordinary care to protect licensees from "hidden perils" because the defendants could reasonably anticipate that pedestrians like Gilchrist would from time to time come on their property, Gilchrist correctly recites the legal principle, but it does not help him here for the simple reason that neither of the hazards-the absence of a railing and the protruding cleanout plug-was a "hidden peril." Compare Trulove v. Jones, 271 Ga.App. 681, 682 (1) (610 S.E.2d 649) (2005) (duty of ordinary care did not apply because the absence of a railing on a backyard pool deck was not a "hidden peril"), with Cooper, 220 Ga.App. at 891 (). Instead, as is apparent from the photograph of the accident scene, these hazards were open and obvious. See, e.g., Crebs v. Bass Pro Outdoor World, 360 Ga.App. 121, 123-24 (860 S.E.2d 802) (2021) (); D'Elia v. Phillips Edison & Co., 354 Ga.App. 696, 699-700 (839 S.E.2d 721) (2...
To continue reading
Request your trial