Weickert v. Home Depot United Statesa., Inc.
| Decision Date | 30 October 2018 |
| Docket Number | A18A0904 |
| Citation | 821 S.E.2d 110,347 Ga.App. 889 |
| Parties | WEICKERT v. HOME DEPOT U.S.A., INC. |
| Court | Georgia Court of Appeals |
Louis Levenson, George Leotis Lott, Atlanta, Patrick Cory Barnwell, for Appellant.
Derrick Lee Bingham, Stephen H. Sparwath, Ian K. Hall, Atlanta, for Appellee.
Denis Weickert filed a negligence action against Home Depot U.S.A., Inc., after he slipped and fell in water on the floor of the garden center in one of its stores. Weickert appeals the trial court’s grant of summary judgment to Home Depot, arguing that (1) he lacked knowledge of the "specific hazard" that caused his fall, and (2) he was distracted by a Home Depot employee, such that he was prevented from seeing the hazardous condition. For the reasons that follow, we affirm.
Viewed in the light most favorable to Weickert,1 the record shows that he was a frequent patron of a Home Depot store in Suwanee for almost a decade. Each morning, the live plants in the store’s garden center are watered, and "caution" signs are placed on the floor in areas that are wet. On May 21, 2014, Weickert visited the garden center, which he had done on many occasions, to purchase a timer for his sprinkler. On the date in question, Weickert entered the store through the garden center, immediately approached an employee at the cashier stand, and requested assistance. The employee told Weickert to follow him, and Weickert began walking behind the employee. In Weickert’s own words, when the employee came from behind the register, "I was talking to him and fell right in behind him. ..." Within five to ten steps, Weickert realized that he was slipping in water, and he fell on his right leg, resulting in serious injuries and, ultimately, amputation of the leg.
Thereafter, Weickert sued Home Depot to recover damages, including medical expenses and lost wages, that he allegedly incurred as a result of his fall. Home Depot answered, and discovery ensued.
The store manager prepared an affidavit, explaining that on the day of the incident the floor in the garden center was "noticeably and visibly wet, and it was surrounded by wet floor signs, including one not more than five feet from" where Weickert fell. Attached to the affidavit were photographs taken just after his fall depicting water on the floor and several "caution" signs.
In his deposition, Weickert acknowledged that plants need to be watered, and some of that water will inevitably end up on the floor. He also agreed that the garden center has a significant amount of natural light and that there were no visibility issues on the day he fell. Finally, Weickert conceded that he might have seen water on the floor had he looked down. Nevertheless, Weickert explained that he did not glance down at the floor before he slipped and fell because he was looking at and following the cashier. According to Weickert, he was "more concerned in following" the employee as instructed, stating, Similarly, he did not see any signs on the floor because he was "talking to [the employee] and fell right in behind him," such that he did not "have time to look around and stuff." Weickert also claimed that he walked three to four steps behind the employee, such that he could not see the water or path in front of him, and he did not anticipate that the employee would lead him through water. But during his deposition, Weickert admitted that in the photographs taken just after his fall, he could see which areas of the floor were wet and which were dry, as well as the caution signs.
Home Depot moved for summary judgment on the basis that Weickert had constructive knowledge of the hazardous condition, arguing that he slipped and fell in water that was (1) in plain view, (2) surrounded by "caution" signs, and (3) located in an area where he should have anticipated the presence of standing water. In response, Weickert argued that there was a genuine issue of material fact as to whether he was distracted by the Home Depot employee at the time of his fall. Following a hearing, the trial court concluded that Home Depot had actual or constructive knowledge of the hazard, but exercised ordinary care by placing multiple, visible caution signs on the floor. With regard to Weickert’s claim of distraction, the trial court found that the employee’s statement to Weickert to follow him and Weickert’s act of following the employee did not constitute distractions, nor did they relieve Weickert of his obligation to exercise ordinary care. This appeal followed.
On appeal from a grant or denial of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. The defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.2
With regard to premises liability cases, our Supreme Court has held that "as a general proposition[,] issues of negligence, contributory negligence[,] and lack of ordinary care for one’s own safety are not susceptible of summary adjudication[,] but should [instead] be resolved by trial in the ordinary manner."3 In Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe.4 Nevertheless, proof that an invitee tripped or fell, without more, "does not establish liability on the part of the property owner or occupier."5 Rather, in order for a plaintiff to recover damages for injuries sustained in a slip-and-fall action, an invitee 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."6 A plaintiff’s evidentiary burden of proof concerning the second prong of this test is not shouldered, however, "until the owner establishes that the plaintiff was negligent, that is, [he] intentionally and unreasonably exposed [him]self to a hazard of which [he] knew or, in the exercise of reasonable care, should have known existed."7
1. Weickert argues that the trial court erred by granting Home Depot’s motion for summary judgment because he lacked knowledge of the "specific hazard" he faced despite his exercise of ordinary care. Specifically, Weickert contends that he did not see the water on the floor, and, thus, he had no knowledge of the "specific hazard" which caused his fall, therefore creating an issue for the jury. He also contends that the "plain view" doctrine only applies to large objects, and that his frequent visits to the Home Depot store, without more, did not create constructive knowledge on his part of the particular standing water in which he slipped.
Weickert did not, however, make these arguments to the trial court. To the contrary, in his response to Home Depot’s motion for summary judgment, he asserted only two arguments: (1) Home Depot had actual and constructive knowledge of the hazard, and (2) under the particular facts of this case, the application of the distraction doctrine precluded summary judgment. Similarly, at the summary judgment motion hearing, Weickert focused on the distraction doctrine. We will not consider an issue raised for the first time on appeal "because the trial court has not had the opportunity to consider it."8 Consequently, we do not address these new arguments.
2. Weickert contends that the trial court erred by granting summary judgment to Home Depot because he presented some evidence that he was acting with ordinary care at the time of his fall but was distracted by Home Depot’s employee. We disagree.
The distraction doctrine holds that one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted. The distraction doctrine is not an independent theory of recovery but may operate to excuse or negate a plaintiff’s failure to discover the hazard when the source of the distraction is attributable to the defendant . Thus, the distraction doctrine is relevant only if the plaintiff has established that a hazard exists and that the defendant had superior knowledge of that hazard.9
(a) Here, there is no dispute that Home Depot had actual knowledge of the water on the floor of its garden center, and at summary judgment, Weickert conceded that Home Depot had arguably produced evidence that his "injury was a result of his own causal negligence." Therefore, the "the burden of production shift[ed] back to [him] to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by [Weickert] or tends to show that any such negligence resulted from [Home Depot’s] own actions or conditions under its control."10 Thus, the sole issue on appeal is whether Weickert met his burden to put forth evidence that he was excused from discovering the open and obvious water on the floor of the garden shop because he was distracted by "something in the control of [Home Depot ], which purported distraction is of such a nature that [Home Depot] might have anticipated that it would divert [a customer’s] attention."11
Weickert claims that his failure to see the water was excused because after he asked a store employee for assistance, the employee told him to "follow [him]," and Weickert followed so closely behind the employee that he could not see around him to see the water or the warning sign.
As explained by the Supreme Court of Georgia in Robinson...
To continue reading
Request your trial
- Bowen v. Laird
-
Salvati v. Deloach Brokerage, Inc.
...not consider this argument. See Wimpy v. Martin , 365 Ga. App. 55, 58 (1) (b), 846 S.E.2d 230 (2020) ; Weickert v. Home Depot USA , 347 Ga. App. 889, 892 (1), 821 S.E.2d 110 (2018) (citation and punctuation omitted); Kolb v. Daruda , 350 Ga. App. 642, 645 (1), 829 S.E.2d 881 (2019). 2. Salv......
-
Williams Investment Company v. Girardot
...to actions or conditions within the control of the owner/occupier. (Punctuation and footnote omitted.) Weickert v. Home Depot U. S. A. , 347 Ga. App. 889, 891, 821 S.E.2d 110 (2018).A plaintiff cannot recover on a premises liability claim unless the defendant had superior knowledge of the h......
-
Gutierrez v. Six Flags Over Ga. II, L.
... ... Weickert v. Home Depot U.S.A., Inc., 347 Ga.App ... ...
-
Real Property
...at 3-4, 821 S.E.2d at 108.82. Id. at 4, 821 S.E.2d at 109.83. Id. at 5, 821 S.E.2d at 109.84. Id. at 5, 821 S.E.2d 109-10.85. Id. at 5, 821 S.E.2d at 110.86. Id. at 6, 821 S.E.2d at 110. 87. 348 Ga. App. 145, 820 S.E.2d 254 (2018).88. Id. at 145, 820 S.E.2d at 255.89. Gens v. White, 299 Ga.......