Jordan v. Atlanta Replex Corp.

• Decision Date: 17 September 1997
• Docket Number: No. A97A2151,A97A2151
• Citation: 228 Ga.App. 670,492 S.E.2d 536
• Parties: , 97 FCDR 3552 JORDAN v. ATLANTA REPLEX CORPORATION.
• Court: Georgia Court of Appeals

Page 536

492 S.E.2d 536

228 Ga.App. 670, 97 FCDR 3552

JORDAN v. ATLANTA REPLEX CORPORATION.

No. A97A2151.

Court of Appeals of Georgia.

Sept. 17, 1997.

Reconsideration Denied Oct. 2, 1997.

David L. Whitman, for appellant.

Gorby & Reeves, Michael J. Gorby, Amanda H. Burri, Atlanta, for appellee.

ELDRIDGE, Judge.

On January 8, 1995, Willie Jordan, the plaintiff and appellant, went with her family to the defendant's ¹ ice skating rink to skate. When plaintiff arrived, the rink was in use for a hockey practice which was running late, and plaintiff had to wait to skate. No one was allowed on the ice to skate until the hockey team finished their practice; at that time, the public, including the plaintiff, was allowed on the ice. Plaintiff had never ice skated prior to that day. Plaintiff began skating as soon as the ice rink was opened to the public shortly after 6:45 p.m. Plaintiff's injury occurred around 7:30 p.m., after plaintiff had been skating about 30 minutes.

While skating, plaintiff felt her foot jerk, causing her to fall. Plaintiff described the fall as her toe catching and being grabbed and twisted around.

Aaron Jordan and William Pelham looked for the cause of plaintiff's fall and found a hole in the ice about two or three feet from her. The hole was grayish-white, ragged edges, two or three inches in diameter, about an inch in depth, and had a jagged ice skate mark coming out of the hole, which was filled with mushy ice and water; the hole had slush built up around the edges as if someone had skated into the hole, knocking slush out. Ice was stuck in the front tip of plaintiff's skate. Unless someone was looking for the hole in the ice, it was not readily observable. Aaron Jordan stated his opinion that, based on the size of the hole, position of the hole and the plaintiff, and the ice in the toe of her left skate, plaintiff had tripped in the hole.

At the time of plaintiff's injury, Salim Barday was working at the ice rink as assistant manager. After plaintiff's fall, he inspected the ice in the area of the fall and did not find any hole in the ice. However, Mr. Jordan testified that he showed the hole to a skate monitor, who then covered the hole with a warning cone.

The plaintiff's family testified that the general condition of the ice surface was poor, in that there were a number of tiny little holes or divots in the surface and slushy areas. After the plaintiff was removed from the ice, the ice then was resurfaced.

Barday and Robinson (the manager) testified that the ice rink surface is resurfaced just before each new skating session. The ice surface is about five to five and one-half inches of frozen sand with about two to two and one-half inches of ice on top. A skate guard or ice monitor continuously looks for holes or rink defects. Prior to resurfacing the ice, the surface is inspected by walking the rink and any "snow," i.e., shaved ice on the rink surface, is removed by running the Zamboni over it; if any big holes in the ice are found, then the hole is packed with snow. A hole an inch deep and two inches across is considered a small hole and can be easily repaired with a snow packing. A hole more than an inch deep would be very unusual. To resurface, the surface is shaved, watered, and allowed to freeze. To resurface and inspect takes only about ten minutes. The normal resurfacing schedule is after about 20 minutes for public or hockey sessions, in the middle of a session, and every 40 minutes for figure skating. A resurfaced ice rink allows skaters to glide better and is safer.

Barday does not recall if the rink was resurfaced between the hockey session and the public session, which would have been the normal thing to do. However, if the hockey practice ran late, then the ice is inspected only, and if the surface is deemed satisfactory, then the resurfacing is delayed. Barday does not remember inspecting the ice immediately prior to plaintiff's fall. An employee of the defendant told the family immediately after the fall that the ice rink had not been inspected or resurfaced after the hockey practice, because the practice had run late. Such inspection could have been done by the ice monitor after the rink had been cleared of the hockey team, which inspection would take five minutes to do. There are two ice monitors on the ice at all times who control conduct and look for debris and holes.

Stacey Kingry was the employee of the defendant who filled out an accident report for plaintiff based upon what the plaintiff and plaintiff's family told her. She never saw the hole in the ice or looked for it and was not told by any other employee that there was a hole.

On January 8, the rink would normally have been resurfaced prior to the start of hockey practice at 5:00 a.m.; from opening until 12:45 p.m., the resurfacing would be on the request of the user, the Georgia Amateur Hockey Association. Between 12:45 and 1:00 p.m., the rink would be resurfaced before public use, which ran from 1:00 until 3:00 p.m. with a resurfacing occurring at 1:55 p.m. Between 3:00 and 3:30, the ice would again be resurfaced, and again around 4:25, 5:30, and 6:40 p.m. Between 5:40 and 6:20 or 6:30 p.m., introductory hockey was held, when children were taught to play ice hockey. From 6:40 to 8:30 p.m. was a public session, when the public could skate and no figure skating or ice hockey practice took place at the same time. From 8:40 until 10:30 p.m was the Co-ed Hockey League, when adults could play ice hockey.

Charles Robinson worked as the assistant manager of the Mountain Ice Chalet at Stone Mountain Memorial Association Park, which qualified him as an expert witness by experience on the operation and maintenance of an ice rink. He was working for the defendant as manager at the time of plaintiff's injury. According to Robinson, it is common and standard practice to inspect and resurface the ice after a hockey practice and prior to public admission. The reason to resurface the ice is to make the surface smooth and safe for skating. A rink should be resurfaced after a hockey practice and every hour to maintain a smooth surface.

At the time when plaintiff fell, the ice rink was crowded with between 200 and 300 skaters. Plaintiff was not looking at the ice in front of her while she skated and never saw the hole in the ice, because she could not skate while looking down, and with the number of skaters on the ice, she had to look out for other skaters.

Plaintiff sued defendant for injuries caused by the fall. Defendant answered and filed a motion for summary judgment. The trial court granted summary judgment. Plaintiff filed a timely notice of appeal.

Plaintiff's enumeration of error is that the trial court erred in granting summary judgment. We agree.

Under Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), on motion for summary judgment must, the trial court must give the plaintiff the benefit of all reasonable, favorable inferences, and the burden to produce evidence does not shift to the plaintiff unless or until the defendant pierces the allegations of plaintiff's complaint by producing evidence that either shows that the facts alleged are not true, i.e., negates such essential elements, or shows that the plaintiff can produce no evidence to demonstrate the existence of such essential elements. OCGA § 9-11-56(e). "Summary judgment is appropriate [in trip and fall cases] when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant [plaintiff], concludes that the evidence does not create a triable issue as to each essential element of the case. [Lau's Corp., supra.]" Jenkins v. Bi-Lo, 223 Ga.App. 735, 479 S.E.2d 14 (1996).

(a) This is a negligent maintenance case, because this case involves the alleged failure of the defendant to properly maintain its ice rink's surface in a condition that is safe and free of holes in the ice. "Because the defendant [deferred resurfacing the ice] or authorized the [failure to resurface the ice, it] is presumed to have knowledge of [the ice surface's condition]. See American Nat. Bank [of Brunswick] v. Howard, 117 Ga.App. 834, 161 S.E.2d 838 (1968). In this type of case, the plaintiff [made] out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of [her] injury[, and when the defendant raised an affirmative defense and made out the elements of the prima facie defense, the plaintiff showed that she] could not have ... avoided [such negligence] ... through the exercise of ordinary care. See Hogg v. First National Bank [of West Point], 82 Ga.App. 861, 62 S.E.2d 634 (1950). The weight of authority in cases where the plaintiff slips and falls, allegedly due to the defendant's negligence in maintaining a [dangerous ice surface], is that proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor's negligence. [Cits.] ... What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the [ice rink] safe as a good business man is in such matters accustomed to use. [Cits.] Thus the plaintiff must, at a minimum, show that the defendant was negligent either in the materials [it] used in treating the [ice rink] or in the [failure to resurface the rink].... Defendant introduced testimony of [the assistant manager] who had examined the [ice rink surface some time] after plaintiff's fall and who found [no hole in the ice] nor any other defect in the [ice]. Defendant also introduced evidence that the [ice rink] had been [resurfaced prior to the hockey practice at 4:50 p.m.] prior to plaintiff's fall and had been trafficked [from 5:00 until 7:30 p.m.] by other [skaters]. Defendant's evidence was sufficient to pierce the pleadings of the plaintiff and to shift the burden to her to produce issuable evidence or suffer judgment. See Meade v. Heimanson, 239 Ga. 177, ...