Rouse v. MARTA

• Decision Date: 29 March 2004
• Docket Number: No. A03A2492.,A03A2492.
• Citation: 597 S.E.2d 650,266 Ga. App. 619
• Parties: ROUSE v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY, et al.
• Court: Georgia Court of Appeals

266 Ga. App. 619

597 S.E.2d 650

266 Ga.App. 619

ROUSE v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY, et al.

No. A03A2492.

Court of Appeals of Georgia.

March 29, 2004.

Certiorari Granted September 8, 2004.

Hinton & Powell, Andrew J. Hinton, Jr., Atlanta, for appellant.

Lokey & Smith, Malcolm Smith, Kevin A. Doyle, Atlanta, for appellees. BARNES, Judge.

Leslie Rouse appeals the grant of summary judgment to the Metropolitan Atlanta Rapid Transit Authority and the Millar Elevator Service Company in her action against them arising from an incident on an escalator in the Five Points MARTA station. In her complaint, Rouse alleged that the defendants were negligent in allowing the escalator to be used when a gap existed at the bottom of the escalator that would allow a user's foot to be caught in the escalator's machinery. For the reasons that follow, we reverse.

1. The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991):

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga.App. 436, 278 S.E.2d 85 (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e).

Id. "In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case." (Emphasis supplied.) Lau's Corp., supra, 261 Ga. at 495, 405 S.E.2d 474.

Further, when a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843 (1988). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga.App. 160, 163(1), 493 S.E.2d 540 (1997).

2. The standard of care applicable to common carriers applies to MARTA in this case. Millar Elevator Svc. Co. v. O'Shields, 222 Ga.App. 456, 458(2), 475 S.E.2d 188 (1996); Sparks v. MARTA, 223 Ga.App. 768(1), 478 S.E.2d 923 (1996). In Georgia, "a common carrier of passengers is not an absolute and unqualified insurer of the safety of its passengers. Rather, '(a) carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.' OCGA § 46-9-132." Mattox v. MARTA, 200 Ga.App. 697, 409 S.E.2d 267 (1991). Further, a common carrier cannot waive or release this duty, or avoid it by contracting with a third party. Gaffney v. EQK Realty Investors, 213 Ga.App. 653, 655, 445 S.E.2d 771 (1994). Extraordinary diligence is "that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances." (Citation and punctuation omitted.) Southeastern Stages v. Stringer, 263 Ga. 641, 437 S.E.2d 315 (1993). Whether the carrier has exercised extraordinary care and diligence is ordinarily for the jury. Mattox, supra, 200 Ga.App. at 698, 409 S.E.2d 267. 3. Giving Rouse the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom most favorably toward her, the evidence shows that Rouse was about to get off the escalator after descending from street level when the incident occurred. First, her left foot was caught in the escalator, and, after she pulled her left foot free, her right foot was caught underneath the comb plate of the escalator. MARTA employees had to reverse the escalator to free Rouse's foot.

When her foot was released, it had cuts on the bottom, her fourth toe was broken, her foot was cut on the top, and her big toe had a piece of flesh cut out. She was taken to Grady Hospital for medical treatment, which included putting a metal rod in her broken toe.

Ms. Rouse's cousin, who was traveling behind her on the escalator, ran down the escalator to assist her. She stated that while Rouse's foot was being removed from the escalator, she saw that the escalator had chips or cracks running through it. Rouse testified that a part which would have kept her foot from slipping underneath the escalator was missing.

Rouse filed suit, alleging that both defendants were negligent in allowing the escalator to be used when a dangerous condition existed, and that MARTA had failed in its obligation to use reasonable and diligent inspection to monitor the condition of the escalators and assure that they were in proper working order. The defendants filed a combined answer denying liability and then moved for summary judgment. They contended they had no prior knowledge of any escalator malfunction and no evidence shows that they failed to service and maintain the escalator or that they did so negligently.

In support of their motion the defendants submitted the affidavit of a MARTA escalator safety inspector, who stated that the escalator had been repaired and was in proper working order. The affidavit also stated that the inspector was called to the scene of Rouse's accident and saw them remove her foot from the escalator. He examined the comb plate at that time, which had no missing teeth and was not defective.

The defendants also submitted the affidavit of an escalator mechanic who worked for Millar. The mechanic's affidavit described how he and a co-worker inspected the escalators each day and looked at the comb plate at the bottom of each escalator. On February 29, 2000, he replaced two comb plates and performed other maintenance on the escalator on which Rouse was injured, and after that, he saw no defects on that escalator in the weeks before Rouse's injury. After the work was done, the comb plates were in proper working order. He was on the scene of Rouse's accident and put a crowbar between the floor plate and the step to raise the comb plate and free Rouse's foot, thus breaking the plate.

The deposition of a former Millar elevator foreman revealed that a comb plate impact switch existed that would automatically turn off the escalator in circumstances like this, but that MARTA had never requested that the switch be installed. The switch's purpose is to prevent injury to anyone coming in contact with the comb plate. The foreman knows of other escalators in the MARTA system with such a switch, but these escalators were manufactured by a different company. These switches, however, can be added to an existing escalator, and while no code requirement for installation of these switches currently exists, if an escalator is upgraded in any way, the code requires that the switches be added.

The foreman was also on the scene of Rouse's accident and saw no breaks in the comb plate until it was broken in the process of getting Rouse's foot freed from the escalator. In the foreman's opinion, Rouse did not step off the escalator at the bottom, and she was "basically turned sideways riding it down."

MARTA and Millar contend that this evidence shows that they were not negligent, that they had a regular program of inspecting the escalators, and that they had no notice of any defect in the comb plate. Rouse contends, however, that the evidence shows that MARTA and Millar failed to exercise extraordinary diligence because they failed to install a comb plate switch which would have turned off the escalator and prevented her injury.

Although MARTA and Millar contend that we cannot consider the comb plate switch argument because Rouse did not raise it below, we find that this contention is without merit. It is true that Rouse did not explicitly argue that MARTA and Millar had a duty to install the switch, but this does not mean that the issue was not raised.

Rouse raised the issue that MARTA and Millar failed to exercise extraordinary diligence and that issue includes any failure to exercise extraordinary diligence that is raised by the evidence. The testimony from the foreman's deposition, stated above, shows that the issue of the comb plate switch was raised by the evidence before the court. Accordingly, we find that the allegation concerning the comb plate switch was properly before the court below.

Although speaking in terms of a railroad involving passengers in danger, our Supreme Court addressed this issue over 100 years ago.

[W]hen the circumstances are such that a person in the exercise of that degree of diligence known to the law as extraordinary care would see, or should apprehend, that the passenger is in danger of insult or injury; and when the

...