Kennestone Hosp., Inc. v. Harris

• Decision Date: 15 May 2007
• Docket Number: No. A07A0571.,A07A0571.
• Citation: 646 S.E.2d 490,285 Ga. App. 393
• Parties: KENNESTONE HOSPITAL, INC. v. HARRIS et al.
• Court: Georgia Court of Appeals

285 Ga. App. 393

646 S.E.2d 490

KENNESTONE HOSPITAL, INC. v. HARRIS et al.

No. A07A0571.

Court of Appeals of Georgia.

May 15, 2007.

Downey & Cleveland, William C. Anderson, Marietta, for appellant.

Patrick A. Dawson, for appellees.

BERNES, Judge.

This case arose when Michael B. Harris, during the course of making a delivery, slipped and fell on loose telephone books lying on the loading dock at Kennestone Hospital. Harris and his wife subsequently sued the hospital for negligence and loss of consortium. The hospital moved for summary judgment on the grounds that there was no genuine issue of material fact over its own negligence and Harris' contributory negligence. The trial court denied the motion but certified its order for immediate review, and we granted the application. We now affirm.

We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant may obtain summary judgment by showing an absence of evidence supporting at least one essential element of the plaintiff's claim.

(Citations omitted.) Ward v. Autry Petroleum Co., 281 Ga.App. 877, 637 S.E.2d 483 (2006). See also Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

Construed in the light most favorable to Harris as nonmovant, the record reflects that at the time of the slip-and-fall incident, Harris worked as an independent contractor for Federal Express. Harris owned his own delivery truck and operated two delivery routes in Kennesaw and Marietta. As part of one of his routes, he made daily pick ups and deliveries to the loading dock at Kennestone Hospital.

On a clear and sunny day around 12:30 p.m., Harris backed his delivery truck into the hospital loading dock. The dock was L-shaped and contained three loading bays. Harris backed his truck into the far left bay near the double doors leading into the shipping and receiving department, such that both the side passenger door and back door of the truck were next to the dock.

Harris was training another driver, who went into the hospital for the delivery. After the trainee had already gone into the hospital receiving area, Harris realized that he needed to pick up a package from the hospital. Consequently, he opened the passenger door and stepped with his left foot directly from his truck onto the loading dock.

On the dock were pallets of shrinkwrapped telephone books, which Harris had seen on the dock for the past seven to ten working days. The pallets were about four to six feet tall and contained telephone books for the entire hospital. After Harris stepped onto the dock with his left foot, he was directly in front of one of the pallets, which was approximately ten inches away from the ledge of the dock. In one fluid motion, he then attempted to step around the pallet with his right foot. However, because of the height and position of the pallet and the angle at which he was positioned, Harris could not see where he was stepping, and he stepped on one or more phone books lying on the floor between the pallets. When his foot hit the phone books, Harris slipped and fell off the loading dock onto the asphalt floor of the loading bay. As a result of the fall, Harris injured his wrist and knee and could no longer make deliveries for Federal Express.

Harris and his wife thereafter commenced this action against Kennestone Hospital for negligence and loss of consortium. Kennestone Hospital answered and moved for summary judgment on the grounds that there was no genuine issue of material fact over its own negligence and Harris' contributory negligence. The trial court denied the motion in a summary order, leading to this appeal by Kennestone Hospital.

Under OCGA § 51-3-1, an owner or occupier of land has a duty to exercise ordinary care in keeping the premises and approaches safe. See Lee v. Food Lion, 243 Ga.App. 819, 820, 534 S.E.2d 507 (2000). On the other hand, "an owner or occupier of land is not an insurer of the safety of its invitees. The mere occurrence of an injury does not create a presumption of negligence." (Citations omitted.) Id. Mindful of these principles, Georgia courts have fashioned a two-prong test that must be met for a plaintiff to prevail on a premises liability claim. The "plaintiff must prove that (1) the owner or proprietor had actual or constructive knowledge of the hazard and (2) the plaintiff lacked knowledge of the hazard despite exercising ordinary care. Robinson v. Kroger Co., 268 Ga. 735, 736(1), 493 S.E.2d 403 (1997)." Ward, 281 Ga.App. at 877, 637 S.E.2d 483. "The true basis of a proprietor's liability for personal injury to an invitee is the proprietor's superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. Recovery is allowed only when the proprietor had knowledge and the invitee did not." (Citation, punctuation and emphasis omitted.) Brad Bradford Realty v. Callaway, 276 Ga.App. 648, 650, 624 S.E.2d 179 (2005).

Additionally, in a premises liability case, issues of the defendant's negligence, the plaintiff's negligence, and the plaintiff's lack of ordinary care for his own safety are generally not susceptible of summary adjudication. Only where the evidence is plain, palpable, and undisputable can the trial court conclude that a party is entitled to judgment as a matter of law.

Ward, 281 Ga.App. at 877, 637 S.E.2d 483, citing Robinson, 268 Ga. at 748, 493 S.E.2d 403. With these principles in mind, we turn to the parties' contentions in the present case.

1. Whether the Hospital Had Actual or Constructive Knowledge of the Hazard. Kennestone Hospital asserts that Harris failed to present any evidence showing that the hospital had actual or constructive knowledge of the alleged hazard, the loose telephone books lying on the floor. We agree with the hospital that there is no evidence it had actual knowledge of the alleged hazard. But, the record does reflect a genuine issue of material fact over whether the hospital had constructive knowledge.

(a) Harris presented no evidence that any hospital personnel had actual knowledge of the loose telephone books lying on the loading dock that he slipped and fell on. Jamel Goodson, head of the shipping and receiving department, testified during his deposition that it was a "possibility" that at some point while the pallets were in the loading dock he or his staff may have picked up some phone books off of the floor and placed them back on the pallets. However, "[g]uesses or speculation which raise merely a conjecture of possibility are not sufficient to create even an inference of fact for consideration on summary judgment." (Citation and punctuation omitted.) Heath v. Rush, 259 Ga.App. 887, 888, 578 S.E.2d 564 (2003). Furthermore, there was no testimony from Goodson or any other hospital personnel concerning the specific phone books at issue here, which clearly were never picked up. As such, we conclude that Harris failed to come forward with proof that the hospital had actual knowledge of the alleged hazard.

(b) We reach a different result with respect to the issue of constructive knowledge. Under Georgia law,

[c]onstructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.

( Citations omitted.) Pylant v. Samuels, Inc., 262 Ga.App. 358, 359-360(1), 585 S.E.2d 696 (2003). See also Chastain v. CF Ga. North DeKalb, L.P., 256 Ga.App. 802, 803, 569 S.E.2d 914 (2002); Matthews v. The Varsity, 248 Ga.App. 512, 513-514(2), 546 S.E.2d 878 (2001).

Here, Steven Pierce, the hospital facility director, testified generally that the hospital's facilities management staff inspected and cleaned the loading dock three times a day. But, there was no testimony or documentary evidence presented by the hospital reflecting that any inspections had actually been carried out on the day of the incident. "Under these circumstances, a jury must decide whether [the hospital] breached its duty to keep its premises in a reasonably safe condition by failing to conduct or by negligently conducting inspections of its premises." (Citations omitted.) Pylant, 262 Ga. App. at 360(1), 585 S.E.2d 696. See Avery v. Cleveland Ave. Motel, 239 Ga.App. 644, 646(2), 521 S.E.2d 668 (1999); Ingles Markets v. Martin, 236 Ga.App. 810, 811-812, 513 S.E.2d 536 (1999).

Additionally, "constructive knowledge can be demonstrated by showing that an employee was positioned in the immediate vicinity and had the opportunity and means to discover and remove the hazard." (Citation omitted.) Lee, 243 Ga.App. at 821, 534 S.E.2d 507. "However, showing that an employee was merely working in the area of a foreign substance is not enough. The employee must have been in a position to have easily seen and removed the substance." (Citation omitted.) Lovins v. Kroger Co., 236 Ga.App. 585, 586(1)(b)(i), 512 S.E.2d 2 (1999). See also Hardee's Food Systems v. Green, 232 Ga.App. 864, 866-867(1)(a), 502 S.E.2d 738 (1998).

Harris presented sufficient evidence that hospital personnel were in the immediate vicinity and had the opportunity and means to discover and remove the loose telephone books on the loading dock floor. It is true that Harris testified that no one else was on the dock when he fell, and no witnesses actually saw him fall. But Pierce, the facility director, testified that hospital employees from the shipping and facilities management departments came out onto the loading dock frequently in carrying out their various job responsibilities. In this regard, Pierce testified that it was a "correct assumption" that hospital personnel from these departments ...