RSFPITTSGA, LLC v. Schiess

• Decision Date: 30 October 2020
• Docket Number: A20A1228
• Citation: 851 S.E.2d 135,357 Ga.App. 505
• Parties: RSFPITTSGA, LLC v. SCHIESS.
• Court: Georgia Court of Appeals

357 Ga.App. 505

851 S.E.2d 135

RSFPITTSGA, LLC

v.SCHIESS.

A20A1228

Court of Appeals of Georgia.

October 30, 2020

Rutherford & Christie, Carrie L. Christie, Ann S. Potente, for Appellant.

Cade Law, Shaun R. Cade, The Champion Firm, Darl H. Champion Jr., for Appellee.

McFadden, Chief Judge.

RSFPITTSGA, LLC, the owner of a restaurant ("the Owner"), appeals from the denial of its motion for summary judgment in this premises liability case. The plaintiff, Joan Marie Schiess, was injured after tripping over a root in an unpaved area near the restaurant parking lot. The Owner argues that the trial court erred in this ruling because Schiess cannot demonstrate that the Owner had superior knowledge of the hazard. But there exist genuine issues of material fact that preclude summary judgment, so we affirm.

1. Facts.

Summary judgment is appropriate when the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]" OCGA § 9-11-56 (c). "On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party." Scrocca v. Ashwood Condo. Assn. , 326 Ga. App. 226 (1), 756 S.E.2d 308 (2014) (citation and punctuation omitted).

So viewed, the record shows that Schiess worked at a medical imaging center a five-minute walk from the restaurant. Over the course of a year and a half, Schiess would walk to the restaurant for lunch "once every few weeks." Her route took her across a "flat-ish" dirt area that she and other pedestrians crossed to round the corner from the sidewalk and access the restaurant's parking lot, bypassing its driveway entrance.

On July 4, 2016, as she was walking to the restaurant, Schiess tripped on a partially-exposed, protruding root in this dirt area. She fell, injuring two bones in her leg. At the time of Schiess's fall, the root was sticking approximately two inches out of the ground and was attached to the ground on only one end. The root had not been in this condition four days earlier, when a landscaping crew employed by the Owner worked in and inspected that area for tripping hazards.

Based on her injury, Schiess sued the Owner for damages under a premises liability theory. The Owner moved for summary judgment, arguing that the evidence is undisputed that Schiess had traversed the area several times before, and arguing that Schiess cannot show the Owner had superior knowledge of the tree root, which the Owner asserted was an unhidden, naturally-occurring object. The trial court denied the motion for summary judgment and certified that order for immediate review. We granted interlocutory appellate review of the order.

2. Genuine issues of material fact preclude summary judgment.

An invitee such as Schiess, who seeks to recover for injuries sustained in a trip-and-fall action, 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.... The true ground of liability is the owner or occupier's superior knowledge of the hazard and the danger therefrom.

Cottingham v. Sapp , 344 Ga. App. 651, 652 (1), 811 S.E.2d 442 (2018) (citations and punctuation omitted). It is well established in Georgia that summary judgment is appropriate in a premises liability case "only where the evidence is plain, palpable, and undisputed." Robinson v. Kroger Co. , 268 Ga. 735, 748 (2) (b), 493 S.E.2d 403 (1997).

The Owner argues on appeal that it is entitled to summary judgment for three reasons: because Schiess previously had traversed the dirt area, giving her knowledge of the hazard; because the Owner lacked actual or constructive notice of the hazard; and because the protruding root was a naturally-occurring object. None of these arguments support reversal because, as to each of them, genuine issues of material fact preclude summary judgment.

(a) Schiess's knowledge of the hazard.

The Owner argues that it was entitled to summary judgment based on the rule that a plaintiff who had previously traversed a static defect is presumed to have knowledge of that defect. See Pye v. Reagin , 262 Ga. App. 490, 491-492, 586 S.E.2d 5 (2003). But for that rule to apply, the plaintiff must have "successfully negotiated [the] alleged dangerous condition on a previous occasion[.]" Id. at 491, 586 S.E.2d 5 (citation and punctuation omitted; emphasis supplied). Accord Ridley v. Dolgencorp, LLC , 353 Ga. App. 561, 563, 839 S.E.2d 26 (2020). The evidence in this case supports a finding that the root's condition only became dangerous at some point during the four days preceding Schiess's fall. In other words, the jury could find that the reason the landscaping crew did not see the root four days earlier was because at that point it was not broken and sticking up out of the ground. And there is no evidence compelling a finding that Schiess traversed that area between the date the landscaping crew saw no root and the date on which Schiess tripped. So there is at least a genuine issue of fact as to whether Schiess had ever successfully negotiated that particular dangerous condition.

Under these circumstances, the mere fact that Schiess previously had walked near the root does not preclude her recovery. See Shackelford v. DeKalb Farmer's Market , 180 Ga. App. 348, 350 (2), 349 S.E.2d 241 (1986) (permitting a premises liability case to survive summary judgment even though the plaintiff previously had been in the area of the allegedly defective condition — bumpers near a shopping cart corral — because of the "changeable nature of the bumpers as regards their actual physical location, their potential for becoming a dangerous obstacle to pedestrians, and their visual observability"). The premises liability cases involving roots that the Owner cites in support of this argument do not hold otherwise, as those cases do not involve evidence that the nature of the hazardous condition had changed in the time since the plaintiff last had traversed it. See Nemeth v. RREEF America , 283 Ga. App. 795, 797 (1), 643 S.E.2d 283 (2007) (plaintiff fell on uneven pavers, caused by tree roots, on patio that plaintiff went to several times a week); Pye , 262 Ga. App. at 491, 586 S.E.2d 5 (plaintiff tripped on one of several exposed roots in area of unpaved parking lot where she had been before). Our decision in Perkins v. Kranz , 316 Ga. App. 171, 174 (3), 728 S.E.2d 804 (2012), which the Owner cites, also is inapposite; in that decision, which involved a plaintiff injured by a tree branch, we noted that the condition of the tree's branches could not have meaningfully changed in the few minutes that elapsed between the plaintiff's observation of the branches and his injury. Id..

(b) The Owner's knowledge of the hazard.

Schiess has pointed to no evidence in the record that the Owner possessed actual knowledge, but there exists a genuine issue of material fact regarding the Owner's constructive knowledge that precludes summary judgment.

A premises owner or occupier's

[c]onstructive knowledge may be shown by demonstrating that (1) an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition prior to the fall, or (2) the hazardous condition had existed for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.

Benefield v. Tominich , 308 Ga. App. 605, 608 (1), 708 S.E.2d 563 (2011). And "to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has first demonstrated its inspection procedures." Id. at 609 (1), 708 S.E.2d 563 (citation and punctuation omitted). "[T]he 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." Id. (citation and punctuation omitted). Accord Davis v. Bruno's Supermarkets , 263 Ga. App. 147, 148 (1), 587 S.E.2d 279 (2003). Stated another way, "[a] property owner's constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure." Garcia v. KRC Alderwood Trails , 348 Ga. App. 84, 89, 819 S.E.2d 713 (2018) (citations and punctuation omitted).

Here, the evidence could allow a jury to find that the Owner lacked a reasonable procedure to inspect the dirt area for hazards. That evidence, viewed most favorably to Schiess, showed that the Owner did not discuss any particular safety policies with the company that it had hired to provide weekly landscaping services,¹ and that the Owner had no policy or procedure for employees to follow in looking for hazards outside the restaurant building itself. So, contrary to the Owner's argument on appeal, Schiess was not required to point to evidence showing how long the root had existed in its hazardous condition to avoid summary judgment. See Benefield , 308 Ga. App. at 608 (1), 708 S.E.2d 563.

The fact that the root may have existed in that hazardous condition for only four days, as discussed above, does not entitle the Owner to summary judgment. Rather, it goes to the issue of reasonableness of any inspection procedures carried out by the Owner. See Gibson v. Halpern Enterprises , 288 Ga. App. 790, 792-793, 655 S.E.2d 624 (2007) (holding that the "specific facts and circumstances of a case determine the reasonability of an inspection procedure" and finding that the reasonableness of a weekly inspection of a parking area was a jury question); Kmart Corp. v. Jackson , 239 Ga. App. 176, 178, 521 S.E.2d 93 (1999) (holding that evidence that employees did not have specific inspection procedures to follow created jury question as to reasonableness of store's...