Wallace v. Nissan of Union City, Inc.

• Decision Date: 03 November 1999
• Docket Number: No. A99A0791.,A99A0791.
• Citation: 524 S.E.2d 542,240 Ga. App. 658
• Parties: WALLACE et al. v. NISSAN OF UNION CITY, INC.
• Court: Georgia Court of Appeals

524 S.E.2d 542

240 Ga. App. 658

WALLACE et al. v. NISSAN OF UNION CITY, INC.

No. A99A0791.

Court of Appeals of Georgia.

November 3, 1999.

Decker & Hallman, Richard P. Decker, Atlanta, for appellants.

The Hines Firm, John P. Hines, E. Lee Redfern, Atlanta, for appellee.

SMITH, Judge.

Lamar E. Wallace and his wife, Mary L. Wallace, sued Nissan of Union City, Inc. ("Nissan") for Lamar Wallace's injuries and for Mary Wallace's loss of consortium after Lamar Wallace slipped and fell on ice in Nissan's car lot while shopping for a vehicle. Finding that Nissan lacked any knowledge of the icy hazard on its premises, the trial court granted summary judgment to Nissan. Wallace contends that the evidence did not authorize that judgment, and we agree. Premises liability cases are not susceptible to summary adjudication except where the evidence is "plain, palpable, and undisputed." Robinson v. Kroger Co., 268 Ga. 735, 748, 493 S.E.2d 403 (1997). Here, it was not.

When viewed in the light most favorable to Wallace, the nonmovant, the evidence showed the following. On December 20, 1996, Lamar Wallace left home and drove to this Nissan dealership intending to purchase a used pickup truck. Wallace testified that when he arrived at about 11:00 a.m., it was a "brilliant day" and described the weather as "cool." A few days earlier, it had snowed, and unknown to Wallace, some ice remained on Nissan's lot. According to Wallace, the snow from a few days earlier was gone completely, and neither snow nor ice appeared on the roads or even on the sides of the roads.

As Wallace was inspecting a new truck, Harry Powell, a car salesman, left the sales building to offer help. When Wallace expressed his interest in obtaining a used vehicle, Powell informed him that all the used pickups were on the other side of the building. Powell then escorted him to a different section of the sales lot. While they were walking and as Powell engaged Wallace in conversation, Wallace suddenly slipped and fell on some ice. After landing near the northwest corner of the sales building, Wallace noticed that underneath him was a "thin skim of ice." No cones or salt had been placed in the immediate area of Wallace's fall. Wallace denied seeing any warning cones on Nissan's premises.

In support of its motion for summary judgment, Nissan offered the affidavits of Powell, the salesman assisting Wallace, and Samuel Ajayi, Nissan's sales manager. In his affidavit, Powell admitted that "I was aware of ice accumulations on the sidewalk and around the entrances to the sales building, but did not have knowledge of ice elsewhere on the premises." Powell testified that to the best of his knowledge no one else had slipped or fallen on the premises.

Ajayi testified that it was standard practice "for a member of the service department, who arrives at the dealership first every morning, to inspect the premises and take the necessary precautions to remedy any hazards, or to place adequate warnings to alert customers of same." According to Ajayi, "[t]hat morning, red cones had been placed on the sidewalk and around the entrances to the sales building, where there were apparent ice accumulations. Melting agents were also placed on all visible ice."¹ Ajayi also averred that "[t]o the best of my knowledge, no one had knowledge of the ice that caused Plaintiff's fall."

1. Wallace contends that material issues of disputed fact precluded summary judgment. We agree.

The formation of ice even from natural forces unaffected by human agency "does not preclude examination into the question of whether or not the defendant was negligent in failing to take remedial action." Fincher v. Fox, 107 Ga.App. 695, 698(1), 131 S.E.2d 651 (1963). Liability for injuries resulting from an invitee's slip and fall on a proprietor's premises is predicated in part upon the relative knowledge of the respective parties as to the condition or hazard which caused the injuries. Shansab v. Homart Dev. Co., 205 Ga.App. 448, 450(3), 422 S.E.2d 305 (1992). As a general rule, when the plaintiff's knowledge of the hazard equals or exceeds that of the defendant, the plaintiff cannot recover if, by using ordinary care, he could have avoided the consequences of the defendant's negligence. Id.

Here, the threshold inquiry is whether the evidence, when construed most favorably toward Wallace, demonstrates that he had knowledge superior to or equal to that of Nissan as to the icy hazard that precipitated his fall. Dumas v. Tripps of North Carolina, 229 Ga.App. 814, 815, 495 S.E.2d 129 (1997). Although Powell admitted knowing that there were accumulations of ice around the sales building, Wallace denied seeing any ice anywhere that morning. It therefore cannot be said as a matter of law that Wallace had knowledge of this specific hazard that equaled or surpassed that of Nissan. See Ingram v. Toccoa Triple Cinema, 222 Ga.App. 409, 411, 474 S.E.2d 293 (1996); compare Shansab, supra at 451, 422 S.E.2d 305 (despite knowing about icy condition, plaintiff nevertheless attempted to cross icy parking deck).

Even assuming that an unnamed employee had inspected the sales lot earlier in the morning, such an inspection would not necessarily foreclose Wallace's recovery. Whether the employee conducted a cursory and inadequate inspection which failed to disclose the ice on which Wallace apparently slipped and whether the ice was discoverable upon a reasonable inspection are issues necessitating jury resolution. See Davis v. Piedmont Hosp., 222 Ga.App. 97, 98-99, 473 S.E.2d 531 (1996). Similarly, a jury must decide whether Nissan breached its statutory...