N. Fulton Cmty. Charities v. Goodstein

• Decision Date: 03 May 2023
• Docket Number: A23A0289
• Parties: NORTH FULTON COMMUNITY CHARITIES, INC. v. GOODSTEIN et al.
• Court: Georgia Court of Appeals

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NORTH FULTON COMMUNITY CHARITIES, INC. v. GOODSTEIN et al.

No. A23A0289

Court of Appeals of Georgia, Fifth Division

May 3, 2023

MCFADDEN, P. J., BROWN and MARKLE, JJ.

BROWN Judge.

In this wrongful death case related to a slip-and-fall filed by Angela Goodstein on behalf of herself and as executor of the estate of her deceased husband, Stephen Goodstein, North Fulton Community Charities, Inc. ("NFCC") appeals from two orders: the trial court's denial of the motion for summary judgment filed by NFCC on Angela's premises liability claim and the trial court's grant of Angela's motion for partial summary judgment on NFCC's failure to mitigate defense. NFCC contends that the trial court erred (1) in finding that fact issues remained on the issue of premises liability because the "prior traversal" rule applies to this case and (2) in concluding that the testimony of NFCC's expert was contradicted by the testimony of Angela's expert and was, therefore, inadmissible. For the reasons that follow, we affirm.

"Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party." Ridley v. Dolgencorp, LLC, 353 Ga.App 561 (839 S.E.2d 26) (2020). So viewed, the record shows that NFCC is an organization that provides emergency financial and food assistance to residents of North Fulton County. As part of its charitable services, NFCC maintains a food pantry and thrift store located in a building on property which it owns off of Alpharetta Highway in North Fulton County. At approximately 10:00 a.m. on July 19, 2017, Stephen and his 17-year-old daughter, Camille, drove to NFCC's food pantry so that Stephen could pick up food. Camille did not know how many total times she had accompanied her father to NFCC's food pantry, but confirmed that she "went [with him] on a pretty regular basis."^[1] According to Camille when Stephen went to the food pantry, he would only take two routes, either through an access road that NFCC shares with a neighboring Pep Boys Auto Store ("the Pep Boys route") or through the front entrance ("the front route"). If he went the front route, he would park near the front of the store, and if he took the Pep Boys route, he would park on "the hill"; sometimes he would park on the right side of the hill and sometimes he would park on the left side of the hill and sometimes her father would park his car so that the front of his car was facing down the hill toward NFCC and sometimes he would park his car so that the back of his car was facing down the hill toward NFCC. Camille testified that when Stephen parked on the hill, he did not "tend to park in the same area over and over" but would park wherever there was available space; sometimes he had to parallel park and other times he would pull straight in. Camille did not know if he would park on the hill or in the front parking lot more often. Camille testified that she would sometimes walk into NFCC with her father, but not always.

On this occasion, Stephen took the Pep Boys route, turning into the driveway/access road that NFCC shares with Pep Boys and proceeding down the hill where he parallel parked his car toward the bottom of the hill in a spot on the side of the driveway adjacent to a curb; the front of Stephen's car was pointed toward NFCC.

There were no signs prohibiting parking. Stephen exited his car and took a few steps past his car when he realized that he had forgotten his reading glasses and returned to get them. After Camille handed him his glasses, Stephen began walking down the hill again toward the NFCC store when Camille saw him trip and fall on an unmarked raised bump that spanned almost the entire width of the driveway; Stephen had not driven over the bump when he and Camille arrived at NFCC, but they drove over it later when they left.^[2] Stephen struck his head, arm, and leg on the asphalt. Camille went to help her father and he said he was "fine" and proceeded into the store, telling her to go back to the car. Photographs in the record show an access road lined with trees on each side, with ample room for at least eight to ten cars to park on each side of the access road, and room to park without traversing the bump.

When Stephen got into the store, NFCC's director of security found him in the bathroom "bleeding pretty heavily" and sat him down in an office and bandaged his head. According to NFCC's director of operations, Stephen "was bleeding bad," and left a trail of blood throughout the building. The director of operations asked the director of security if he had called 911, and Stephen stated that he did not need an ambulance. After Stephen had been bandaged and his bleeding stanched, the director of security walked Stephen back to his car and asked him if he was okay to drive, and he replied "yes" and then drove off with Camille as a passenger.

The director of security recalls that he kept asking Stephen if he "needed rescue or anything" but Stephen refused, and that he advised Stephen to seek treatment if he began to feel dizzy or ill. He did not believe that Stephen's injuries were serious or life-threatening; if he had, he would have called 911. Camille recalled that the director of security said that Stephen might have to go to the hospital, that "it might be advisable," and that her father was very irritated and said "I'm such an idiot.... I can't believe I tripped over that bump."

Camille and Stephen drove straight home, and Stephen went inside, got an ice pack for his head, and lay down on the couch. Camille told her mother that Stephen tripped over a speed bump, and Angela noticed that Stephen had a black-and-blue spot over his eye. Angela testified that it was "a bad scene"; that she was concerned; and that she thought Stephen should go to the emergency room. According to Angela, Stephen "felt like he probably could take care of it, so [she] didn't push it any further.

[She] just wanted him to relax [and] didn't want to stress him out any further." After about 45 minutes, Stephen told Angela that he was going upstairs to lie down and take a nap. At around 3:45 p.m., Stephen was found unconscious on the floor of his bedroom. He was transported by ambulance to the hospital. A CT scan showed that he had a large hemispheric acute subdural hematoma, one of the most devastating forms of traumatic brain injury. Stephen underwent a craniotomy, spent time in the intensive care unit, and was then transferred to a nursing home where he remained until his death almost two years later.

In December 2014, shortly after NFCC's parking lot was repaved and two permanent speed bumps added, an NFCC employee tripped over one of the new unpainted speed bumps in the front parking lot. Following that incident, the new speed bumps in the parking lot were painted yellow so nobody else would fall, but the change in pavement elevation on which Stephen would eventually trip in 2017 was not painted because, according to the director of operations, "[i]t was visible. You could see it. It wasn't the same color as the pavement.... You could see . . . the drainage bump." After Stephen fell, the director of operations painted the bump yellow.^[3]

There is some dispute as to whether the raised bump - or change in elevation - over which Stephen tripped is a speed bump or drainage bump/ridge. According to NFCC's director of operations, the bump is "absolutely not a speed bump. It's [for] drainage - it diverts water," and was already present on the property when NFCC purchased it from the previous owner in 2005. NFCC's executive director described the feature as a "drainage ridge" but did not recall hearing it described as such prior to this lawsuit.

According to Angela's expert engineer, who visited the property prior to the bump being painted by NFCC's director of operations, there is no such pavement feature in design called a drainage ridge, and that regardless of what the feature is called, Stephen tripped on an unmarked change in elevation in the asphalt pavement. Moreover,

[r]egardless of what NFCC representatives call[ ] the structure, it was an abrupt vertical rise in pavement that, except [for] the fact that it was not exactly perpendicular to the gutter line/edge of pavement, was in all other ways a speed bump and a [change in pavement elevation]. Most people would refer to the subject change in pavement elevation as a speed bump.

In the expert's opinion, the change in pavement elevation was not properly marked to draw attention and to warn of the change in elevation and was further exacerbated by the mottled appearance of the pavement from the shade covering of the heavy tree canopy above. She pointed out that the bump was comprised of the same asphalt and was the same color as the adjacent pavement. "This, coupled with the heavy tree canopy that limited ambient light, and the absence of signs indicating a difference in pavement elevation, gave no clues to the traveling public, whether by foot or vehicle, that there was a change in pavement elevation." The expert averred in her report that walkway and roadway standards required

all changes in pavement elevation to be denoted with a change in color and proper signage to prepare both pedestrians and vehicle operators for the change in elevation of pavement, regardless of what it is called. All other vertical changes in pavement elevations and walking paths on the site were painted except this one. This indicates to the traveling public that all changes in pavement elevation will be painted.

(Emphasis in original.) The photographs of the bump show that it...