Thomas v. Home Depot, U.S.A., Inc.

• Decision Date: 30 March 2007
• Docket Number: No. A06A1938.,A06A1938.
• Citation: 644 S.E.2d 538,284 Ga. App. 699
• Parties: THOMAS v. HOME DEPOT, U.S.A., INC.
• Court: Georgia Court of Appeals

284 Ga. App. 699

644 S.E.2d 538

THOMAS v. HOME DEPOT, U.S.A., INC.

No. A06A1938.

Court of Appeals of Georgia.

March 30, 2007.

Jay W. Pakchar, Atlanta, for appellant.

Lloyd B. Hedrick, Jr., Evan R. Mermelstein, Gray Hedrick & Edenfield, Atlanta, for appellee.

ANDREWS, Presiding Judge.

Anne Thomas sued Home Depot after she punctured her eye on a "tomato tower" that was protruding from the cart behind her in the checkout line. The trial court granted Home Depot's motion for summary judgment and Thomas appeals, claiming the trial court erred in concluding that Home Depot did not breach any duty owed to Thomas, and also erred in concluding that Thomas could not show that any alleged breach of duty was the proximate cause of her injury. For the following reasons, we disagree and affirm.

Summary judgment is proper when the evidence, construed in the nonmovant's favor, shows that no issue of material fact remains and the movant is entitled to judgment as a matter of law. A defendant may prevail on summary judgment "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." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

The relevant facts in this case are undisputed. Thomas stated that she was in the checkout line in the garden center at the Home Depot in Cumming when the incident occurred. Thomas asked the cashier for a plastic bag and as the cashier was handing the bag to Thomas, it fell on the floor. Thomas bent down to pick up the bag and felt something sharp strike her in the eye. Thomas afterward learned that she had been struck by the sharp end of a "tomato tower"¹ that was protruding from the shopping cart of the customer behind her in line. Thomas said she thought the customer may have been pushing the cart forward when she was struck and there was other evidence that the customer was pushing his cart forward as Thomas bent down to pick up the bag. This customer was never identified because he left the store immediately after Thomas was injured.

Thomas sued Home Depot, claiming, among others, that Home Depot was negligent in the "packaging, storage[,] and in the manner in which it permitted the transporting of the tomato cages." Home Depot filed a motion for summary judgment on all counts, which the trial court granted. The court held that "there [was] neither a legal duty owed to [Thomas] nor any breach of any legal duty by Home Depot to prevent acts which were committed by an unidentified third person/customer"; and, even if there were a breach of some duty, this breach was not the proximate cause of Thomas's injury. This appeal followed.

OCGA § 51-3-1 imposes upon an owner the duty to exercise ordinary care to keep the premises and approaches safe for invitees. Towles v. Cox, 181 Ga.App. 194, 195, 351 S.E.2d 718 (1986). This duty is not a duty to absolutely prevent injury as a proprietor is not an ensurer of the safety of its customers. Globe Oil Co., USA v. DeLong, 182 Ga.App. 395, 396, 356 S.E.2d 47 (1987).

A proprietor's obligation to keep the premises safe includes a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner and not known to the person injured that a recovery is permitted.

Walker v. Bruhn, 281 Ga.App. 149, 150, 635 S.E.2d 322 (2006). Because this particular injury was a result of a third party's action, the appropriate inquiry is whether Home Depot had superior knowledge of the danger that a third party would act in such a way. Yager v. Wal-Mart Stores, 257 Ga.App. 215, 216, 570 S.E.2d 650 (2002).

In support of its motion for summary judgment, Home Depot pointed out that there were no reported complaints alleging injury from a tomato tower at this Home Depot within the three years prior to this incident. Home Depot submitted a list of twenty-three incidents involving tomato towers at other stores, and Thomas points out that in three of these incidents customers were injured by the tomato towers. But, in order for these incidents to show superior knowledge on the part of Home Depot, they must have been sufficiently similar. An owner has no duty "to foresee and warn against dangers which are not reasonably expected, and which would not occur except under exceptional circumstances or from unexpected acts of the person injured." Sutton v. Sutton, 145 Ga.App. 22, 25, 243 S.E.2d 310 (1978). In this case, none of the previous injuries occurred after the towers had been put in a cart and none involved the independent acts of a third party.

In a similar case, the appellant and her fiancé were shopping in Wal-Mart when the fiancé took a "super soaker" water gun off the shelf and pulled the trigger, hitting appellant in the ear with a forceful stream of water. It was never determined how the water got into the gun. This Court held that a proprietor is under no duty to foresee dangers which are not reasonably expected and which would not occur except from unexpected acts. Yager, supra at 217, 570 S.E.2d 650.

Likewise, in Cook v. Home Depot, 214 Ga.App. 133, 447 S.E.2d 35 (1994), this Court rejected the same arguments advanced by Thomas in the instant case. Id. at 133-134, 447 S.E.2d 35. The appellant in Cook was injured when a piece of plywood fell off the top of the pile of stacked wood. This Court held that an injury resulting from the manner in which the plywood was stacked was not sufficiently similar to incidents where lumber was pulled down by customers or other objects had fallen on customers. Id. at 134, 447 S.E.2d 35; thus, there was no evidence that Home Depot had superior knowledge as to any defect or hazard. Id.

The dissent mentions that a nursery owner's affidavit states that he helps customers in loading the tomato towers in their vehicles. This is not relevant. The practices of a nursery owner cannot change the standard of care for Home Depot from that of ordinary to extraordinary, and that is what the dissent is advocating in this case. Contrary to the dissent's response to the special concurrence, Home Depot is not obligated to protect its customers from any object that could present a danger to them. "Almost every physical object can be inherently dangerous or potentially dangerous in a sense. A lead pencil can stab a man to the heart or puncture his jugular vein, and due to that potentiality it is an `inherently dangerous' object .... But the doctrines fashioned by the law for inherently dangerous objects do not encompass these things." Stovall & Co. v. Tate, 124 Ga.App. 605, 610, 184 S.E.2d 834 (1971).

Here, because none of the accidents involving tomato towers was in any way similar to the manner in which Thomas was injured, it was not foreseeable that a customer would place the tower in his cart with the sharp tips protruding through the front of the cart and then push the cart forward just as Thomas was bending over, striking her in the eye. Therefore, the trial court did not err in concluding that Home Depot had no duty to protect Thomas against the unforeseeable acts of a third party. Yager, supra; Cook, supra.

In light of our holding that Home Depot breached no duty to Thomas, we need not address her argument that the trial court erred in determining that there was no issue of fact as to proximate cause.

Judgment affirmed.

JOHNSON, P.J., SMITH, P.J., MILLER and ELLINGTON, JJ., concur.

ADAMS, J., concurs specially.

BARNES, C.J., dissents.

ADAMS, Judge, concurring specially.

I concur fully in the majority opinion and write separately to stress that to allow liability to attach to Home Depot under these circumstances will overextend the law of premises liability for retail establishments.

Surely it is a known and obvious fact that there are many, many sharp items available in a hardware store. It is also obvious, therefore, that another customer could be holding or carrying one of these items. The sharp item at issue in this case was in the possession of another customer. Although it was in his cart, I see no analytical difference between this situation and one in which the customer is holding the sharp item. Thus, the simple facts of the case are that the plaintiff was injured when she made a sudden and unexpected movement that brought her into contact with a sharp item held by another customer. And the fact that the item had sharp points was open and obvious to anyone who cared to look. The case would be the same if the unknown customer had been holding a pitchfork, shovel, rake, hoe, screwdriver, saw, pick, nail, or any one of a number of other items available for sale in a hardware store. Normally, a retailer is not liable for the actions of customers who are carrying store merchandise in a dangerous manner unless the retailer is on notice of the probability of danger:

If the conduct of third persons ... is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury. This duty of interference on the proprietor's part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger.

(Citations and punctuation omitted; emphasis in original.) Towles v. Cox, 181 Ga.App. 194, 197(1), 351 S.E.2d 718 (1986)....