SIMON v. MURPHY Et Al.
SIMON v. MURPHY Et Al.
Opinion
*291 Wanda Simon appeals from the trial court's grant of summary judgment to The Kroger Company ("Kroger") and Michael Murphy, the manager of a Kroger store in Decatur, Georgia. Simon filed suit against both parties after she tripped and fell over an elevated metal portion of a cart corral in the Kroger parking lot. On appeal, Simon contends that the trial court erred in granting the appellees' summary judgment motion and that it also erred in denying her motion *382 to compel discovery. Having reviewed the record, we determine that the trial court erred in granting the summary judgment motion but did not clearly abuse its discretion in denying Simon's motion to compel. We therefore affirm in part and reverse in part.
"The standards for summary adjudication are well settled."
Berni v. Cousins Properties
,
Inc.
,
So viewed, the record shows that in August 2016, Simon went to a Kroger store in Decatur, Georgia. After exiting the store, Simon loaded her groceries into her car and pushed her shopping cart over to the corral. While leaving the corral, Simon's right foot caught on the steel base of the corral ("the crossbar"), which caused her to fall and break her arm. The crossbar, which typically lies flat on the asphalt, was raised off the ground on one side, at a height of approximately one and one-eighth inches. This damage had occurred after a delivery truck hit the corral. Simon was "very certain" that she tripped over the damaged section of the crossbar because she "felt [her] foot hang up on something" and when she looked back at the corral, she saw that the elevated part of the crossbar had been in her path. Kroger and Murphy concede on appeal - as they did at the hearing on their motion for summary judgment - that they knew of the damaged condition of the cart corral months before Simon's fall. Murphy testified that he had called the district operations manager to inform him that the corral was "hit and bent," but that the corral had not been replaced.
Simon filed a complaint against Kroger and Murphy in DeKalb County State Court, alleging that they knew of the condition of the corral and were negligent in failing to maintain it and warn her of its dangerous condition. Both appellees moved for summary judgment, arguing that the condition of the corral was open and obvious, that Simon had successfully traversed the crossbar before she eventually tripped, and that Simon had failed to exercise ordinary care. Murphy also argued in a separate motion that any negligent acts that he allegedly committed were done in the scope of his employment and that those acts were attributable to Kroger, rendering him an unnecessary party to the lawsuit.
After a hearing, the trial court determined that the damage to the crossbar was a "clearly visible static condition," that nothing had obstructed Simon's view of the damage, and that it had been present for months. The trial court granted the appellees' motion for summary judgment and denied Murphy's separate motion for summary judgment as moot. This timely appeal followed.
1. First, Simon argues that the trial court erred in granting summary judgment. According to Simon, there is a fact issue as to whether the hazard was a clearly visible static condition, and that, even assuming it was, there is also a fact issue regarding her knowledge of the condition that precipitated her fall. We agree that the grant of summary judgment was improper.
*293
"To prevail on a 'trip and fall' claim, the plaintiff must prove that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner's control." (Citation omitted.)
McLemore v. Genuine Parts Co.
,
*383 As we approach our analysis, we are mindful of the Supreme Court of Georgia's cautioning that
the 'routine' issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety are generally not susceptible of summary adjudication .... [A]n invitee's failure to exercise ordinary care is not established as a matter of law by the invitee's admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.
Robinson v. Kroger Co.
,
Because the appellees have conceded their knowledge of the hazard, the determinative question is whether there is a fact issue regarding the second prong of a premises liability claim, that is, whether there is a genuine issue of material fact regarding whether *294 Simon lacked knowledge of the damaged portion of the crossbar despite her exercise of ordinary care.
We determine that fact issues remain regarding Simon's knowledge of the hazard as well as her exercise of ordinary care. In his report, Simon's expert explained that the area in which Simon fell was a foreseeable or predictable pedestrian path, and the change in elevation was "inherently hazardous." He explained that according to standard practices for safe walking surfaces, abrupt changes in elevation in surfaces exceeding one-quarter of an inch are not permitted, and he also explained the manner in which such elevations must be beveled.
Simon also testified that although she had previously visited this specific Kroger store, she usually parked on another side of the lot. She estimated that she had parked by the corral only once or twice before and that she can usually see only the sign indicating the location of the corral. On the occasions that she had used the corral, she did not notice any damage. On the day of the incident, Simon saw that the side of the cart corral was damaged and heard the sound of the cart rolling over the crossbar, but she testified that she did not see the damage to the crossbar. 1
We are unpersuaded by the appellees' argument that although Simon did not see the specific portion of the bar that caused her fall, her general knowledge that the crossbar was present precludes her from recovering as a matter of law. "[I]n our opinion, the critical inquiry is not whether [Simon] had knowledge of the existence of the [crossbar], which she clearly did, but whether she had knowledge of the existence of the danger created by the [elevation in a damaged section of the crossbar]."
Food Giant, Inc. v. Witherspoon
,
Second, we cannot conclude as a matter of law that, during her entry into the corral Simon successfully negotiated the specific hazard that caused her fall. Simon testified only that she heard the "bounce" of the cart as she placed it in the corral. The corral was 68 inches wide, only a portion of the crossbar was elevated, and the record does not indicate what portion of the crossbar Simon traversed as she entered the corral. See
Bullard
, supra,
There are also fact issues regarding Simon's exercise of ordinary care. First, when the evidence is viewed in the light most favorable to Simon, we conclude that reasonable minds can differ on whether the damaged section of the grey steel crossbar in this case, elevated slightly more than an inch above grey asphalt, was open and obvious. See
Stenhouse v. Winn Dixie Stores, Inc.
,
*296
Given the record before us, including the photographic evidence of the damaged crossbar, "the extent to which [Simon's] conduct contributed to [her] fall, if at all, is certainly not plain, palpable, and undisputable, rendering this issue inappropriate for summary adjudication."
Baker v. Harcon, Inc.
,
2. Next, Simon claims that the trial court committed reversible error in denying her motion to compel discovery. We disagree.
The Civil Practice Act allows discovery of matters which are "relevant and reasonably calculated to lead to the discovery of admissible evidence." (Punctuation omitted.)
*385
Apple Investment Properties, Inc. v. Watts
,
According to deposition testimony, Kroger stores feature a program called the Star 360 program, "designed for employees to give feedback and/or have discussion on safety issues whether good or bad at the store." In connection with this program, Kroger stores keep a binder that "covers store safety" for the entire year and contains information regarding Kroger's workers' compensation and general liability matters. Although Kroger produced a blank version of the binder, outlining its safety requirements and procedures, Simon filed a motion to compel the production of the entire binder for 2016 for the Kroger store at issue.
Here, however, the human resources assistant manager for Kroger testified, "we do not get 360's for incidents in the parking lot." He later explained that incidents which occur outside the store are not documented in the Star 360 binder, but rather, in an incident report. Also, in their responses to Simon's interrogatories, the appellees stated that prior to Simon's fall, they were not aware of any
*297
injuries due to tripping, falling or stumbling over the damaged cart corral at the Kroger store at issue. Counsel for the appellees submitted a sworn affidavit indicating that she had reviewed the binder maintained in the store and that it did not reference Simon's fall or any other outdoor incidents. Given such evidence in the record, Simon has not demonstrated the trial court's clear abuse of its discretion in denying her motion to compel. See
Dagel v. Lemcke
,
In sum, we affirm the trial court's denial of Simon's motion to compel but reverse the trial court's grant of the appellees' motion for summary judgment. In so doing, we note that Murphy's separate motion for summary judgment, in which he argued that he is not subject to liability as the store manager, is no longer moot, and the trial court should address this motion on remand.
Judgment affirmed in part and reversed in part.
Rickman and Reese, JJ., concur.
We have recognized the general principle that, "[i]f nothing obstructs the invitee's ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks." (Citation omitted.)
Rentz v.
Prince of Albany, Inc.
,
In light of our conclusion, we do not address Simon's argument that the trial court erred in considering materials filed by the appellees the day prior to the hearing on the summary judgment motion.
Reference
- Full Case Name
- Wanda Simon v. Michael Murphy
- Cited By
- 8 cases
- Status
- Published