Legal Issues

Recent Developments in Premises Liability in Georgia

The Georgia Court of Appeals has made it more difficult for defendants to prevail on summary judgment, at least in foreign substance cases under several recent premises liability cases. A bare majority of the Court has abrogated to some extent the longstanding authority of Alterman Foods v. Ligon, 264 Ga. 620, 272 S.E.2d 327 (1980). In Alterman Foods, the Court had outlined a two-part test for foreign-substance slip and fall cases: the plaintiff must establish (1) that the defendant had actual knowledge of a foreign substance and (2) that the plaintiff was without knowledge or for some reason attributable to the defendant, was prevented from discovering the foreign substance. The Court expressly held that merchandise on store shelves does not constitute a distraction which would shift the responsibility for the fall to the defendant. In any event, a plaintiff is charged with the duty of exercising due care for his or her own safety. The general rule previously followed by the Court was that if a plaintiff could have, in the exercise of reasonable care, observed the foreign substance, equal knowledge on the plaintiff's part would be established. Each of these principles has been eroded by the following cases:

In Dill's Food City v. Johnson, 96 F.C.D.R. 29 (Ga. App., 12/5/95), the plaintiff was looking at pickles (what else?) shortly before she slipped and fell in a brown puddle of tea on the white tile floor. In a deposition, the plaintiff admitted that she could have seen the twelve-inch spill if she had looked down. The evidence indicated that the store had actual knowledge of the hazard. The Court, finding that the pickles distracted the plaintiff, determined that she had no knowledge of the foreign substance on the floor. As a consequence, the Court ruled that a jury question existed as to the plaintiff's failure to exercise care for her safety. Judge Beasley, pointing out the principle that merchandise on shelves is not a legal distraction, nevertheless concurred with the 5-4 majority.

J. H. Harvey Co. v. Edwards, 96 F.C.D.R. 33 (Ga. App., 12/5/95), involved a plaintiff who slipped on a green bean while pushing her cart toward a display table loaded with beans. She testified that a store employee had remarked just prior to her fall that, "These are mighty pretty beans", but that she was not distracted by anything but the beans. She admitted that, if she had looked at the floor, she could have seen the beans. Nevertheless, in a 7-2 decision, the Court of Appeals found that the store employee's greeting represented some evidence of distraction and affirmed the trial court's denial of summary judgment to the defendant.

In another green bean case, the Court affirmed summary judgment in favor of the defendant. The plaintiff in Baker v. Winn-Dixie, 95 F.C.D.R. 3912 (Ga. App., 12/4/95), stepped on a bean as she was exiting the supermarket. She was looking straight ahead and admitted that she could have seen the bean if she had looked down. The case did not involve any distraction, but in a special concurrence, Judge J. D. Smith announced the rule that some conduct on the part of an employee must distract the plaintiff in order to permit recovery under the distraction theory.

In another 5-4 decision, Department of Human Resources v. Thomas, 217 Ga. App. 174, 456 S.E.2d 724 (1995), the majority ruled that the defendant was not entitled to a directed verdict. The plaintiff had slipped and fallen on cream of broccoli soup on the floor of the cafeteria at the West Central Georgia Regional Hospital. She insisted that she never saw the spill, but made inconsistent statements about whether she could have seen it if she had looked. In his dissent, Judge Andrews stated, "apparently one may now trip over a battleship and recover if one states that he did not see it, or can verbalize any excuse for not seeing it."

Until recently, it has been generally accepted that if an individual could have seen a foreign object on the floor by looking at the floor, then summary judgment would be granted for the defendant. Several recent decisions, have brought this presumption into question. In Barentine v. Kroger Company, 264 Ga. 224, 443 S.E.2d 485 (1994), the plaintiff was searching for a checkout counter that was open when he slipped and fell on a puddle of clear liquid. The plaintiff admitted that if he had been looking down he would have seen the foreign object but stated that instead of looking down he was distracted by looking for the cashier who was missing from the checkout counter. The court found that this testimony gave some evidence that the plaintiff was exercising reasonable care for his own safety in approaching the checkout counter and did not demand a finding that the plaintiff had failed to exercise reasonable care.

In Axom v. Wendy's International, Inc., 95 F.C.D.R. 3909 (Ga. App., 12/4/95), the Georgia Court of Appeals took Barentine's reasoning one step further. In Axom, the plaintiff admitted that if she had been looking down she would have seen the water on the floor. However, instead she was maneuvering through a busy dining area with her hands full of food, a drink and a purse, and her attention was focused on getting back to her car where her child had been waiting for thirty minutes. The court in this situation found that there was some evidence that plaintiff was exercising reasonable care for her own safety by focusing on the people in the restaurant rather than the floor and therefore reversed the granting of summary judgment to the defendant.

Similarly, in McDonald's Restaurant of Georgia, Inc. v. Banks, 96 F.C.D.R. 36 (Ga. App., 12/5/95), the Georgia Court of Appeals affirmed the denial of summary judgment to the McDonald's Restaurant. The court found that the plaintiff, who admits that if she had looked down she would have seen the puddle of water in front of her, was reasonable in focusing on ordering at the counter directly ahead of her and dodging customers who were leaving rather than on the floor in front of her. Therefore, the trial court was correct in denying summary judgment.

Clearly, the Georgia Court of Appeals has shifted away from its longstanding position that individuals are expected to inspect the path in front of them absent some kind of distraction from the property owner. In so doing, the court is attempting to demonstrate that in normal life experience it is not always reasonable to require that individuals look down and that sometimes it is more reasonable for the individual to look forward. The end result should be more cases to try to the jury.