Gutierrez v. Six Flags Over Ga. II, L.
| Decision Date | 28 April 2023 |
| Docket Number | A23A0607 |
| Parties | GUTIERREZ v. SIX FLAGS OVER GEORGIA II, LLP. |
| Court | Georgia Court of Appeals |
Rosalinda Gutierrez appeals after the trial court granted Six Flags Over Georgia II, LLP's ("Six Flags") motion for summary judgment in Gutierrez's negligence action after she slipped and fell in Six Flags's parking lot. For the reasons set forth below, we affirm the trial court's order.
"We apply a de novo standard of review to an appeal from the grant of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in favor of the opponent of summary judgment." Wentworth v Eckerd Corp., 248 Ga.App. 94, 94 (545 S.E.2d 647) (2001).
So viewed, the evidence shows that Gutierrez visited Six Flags on July 22, 2018, accompanied by her two daughters and grandson. As she was walking toward the park's entrance she "fell to the ground, striking her head and other body parts on the concrete." As later documented in photographs, there was a crack in the pavement of the walkway Gutierrez was using to enter the park that created a lip on which she tripped. Because the area where the crack was located was at an elevation change/surface transition in the walkway, pre-existing yellow paint was present over the walkway where the crack had formed.
Gutierrez sued Six Flags for negligence, alleging that Six Flags's constructive and/or actual knowledge of the dangerous condition caused by the crack, along with its failure to remedy the allegedly dangerous condition, constituted a breach of the duty Six Flags owed to Gutierrez as its invitee. She alleged that as a result of the fall, she suffered "serious and permanent injuries," including a concussion, a left knee meniscus tear, and other injuries to her back and neck.
In her deposition, Gutierrez testified that as she was walking into the park, her daughters and her grandson were walking in front of her. She stated that it was not overly crowded,[1] and she was not distracted while walking; she was looking straight ahead and wearing appropriate footwear for the occasion. She could not recall seeing the crack before falling down. Her daughters helped her up after the fall, and she went to the park's medical station.
Six Flags's corporate representative testified that the company's safety policies mandate that employees report to a supervisor any worn, loose, uneven, or broken walkway surfaces. Indeed, an audit report from the day of Gutierrez's fall showed that a Six Flags employee had inspected the property that day. Although the audit report noted "potholes" in the parking lot, the walkways were marked as "safe" by the employee.
After a hearing on Six Flags's motion for summary judgment, a transcript of which does not appear in the record, the trial court granted summary judgment to Six Flags. First, the trial court determined that the dispositive issue was "whether the crack and condition of the pavement was 'readily discernible' to someone exercising reasonable care for her own safety." Because the crack in the sidewalk was a static condition and Gutierrez was not obstructed from seeing it, the court deemed Gutierrez to have at least equal knowledge of the hazard as Six Flags, and she therefore was not entitled to recover damages for her injuries. Gutierrez appealed.
1. In related claims of error, Gutierrez challenges the trial court's finding that the condition that caused her fall was open and obvious, thus imputing knowledge of the hazard onto her and implicitly finding that it could have been avoided with the exercise of ordinary care.
In Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 S.E.2d 403) (1997), our Supreme Court held that "in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (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." Id. at 748 (2) (b). An "open and obvious" condition invokes the "plain view doctrine," whereby constructive knowledge is imputed if an invitee confronts "a hazard in plain view at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall." Id. 268 Ga. At 743 (1).
Gutierrez does not contest that the condition that caused her fall was static. Indeed, an uneven walkway is the quintessential example of a static condition. D'Elia v. Phillips Edison & Co. Ltd., 354 Ga.App. 696, 698 (839 S.E.2d 721) (2020). Gutierrez instead argues that whether the hazardous condition was open and obvious is a question that should have been left to a jury. We disagree. Gutierrez is correct that summary judgment is appropriate only where the "factual evidence is plain, palpable, and undisputed." LeCroy v. Bragg, 319 Ga.App. 884, 886 (1) (739 S.E.2d 1) (2013). However, the record in her case leaves nothing for a jury to decide.
A static condition may be deemed open and obvious "[i]f nothing obstructs the invitee's ability to see the static condition, [because] the proprietor may safely assume that the invitee will see it and will realize any associated risks." Rentz v. Prince of Albany, 340 Ga.App 388, 390 (1) (797 S.E.2d 254) (2017) (citation and punctuation omitted). Here, the evidence showed that the condition in question was out in the open, with nothing to obstruct Gutierrez's view of it. Further, because it was located at the transition between surfaces, it was highlighted in yellow paint which could only increase its visibility. Thus, where the "static condition is apparent," or open and obvious, "such that one looking ahead would necessarily see it, an invitee's failure to look will not relieve her from the responsibility for her misadventure." Coral Hospitality-GA, LLC v. Givens, 363 Ga.App. 664, 665 (871 S.E.2d 325) (2022) (citation and punctuation omitted); see also James v. Sirmans, 299 Ga.App. 262, 263 (683 S.E.2d 354) (2009) (reiterating that "small cracks, holes and uneven spots" in pavement are common and, where nothing obstructs or interferes with a person's...
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