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DeMott v. Old Town Trolley Tours of Savannah, Inc.

Court of Appeals of Georgia

July 16, 2014

DeMOTT
v.
OLD TOWN TROLLEY TOURS OF SAVANNAH, INC

Reconsideration denied July 31, 2014.

Contract. Chatham State Court. Before Judge Coolidge.

Simon Weinstein, Jeffrey W. Lasky, Brian E. Krapf, for appellant.

Brennan & Wasden, Joseph P. Brennan, Sandra V. Foster, Kathryn A. Westberry, for appellee.

BOGGS, Judge. Doyle, P. J., Dillard and Branch, JJ., concur. Barnes, P. J., Ellington, P. J., and Miller, J., dissent.

OPINION

Page 704

Boggs, Judge.

Malissa DeMott filed a breach of contract action against Old Town Trolley Tours of Savannah, Inc. (" Old Town" ) contending that Old Town, as a common carrier, is liable for injuries she sustained when she fell in its parking lot. Old Town moved for summary [328 Ga.App. 658] judgment on the claim, the trial court granted the motion, and DeMott now appeals. For the following reasons, we affirm.

On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 S.E.2d 31)

Page 705

(2010); see OCGA § 9-11-56 (c).

So viewed, the evidence showed that on November 17, 2008, DeMott, her husband, mother-in-law, and a family friend arrived at the Savannah Visitor Center parking lot for the purpose of taking Old Town's trolley tour of the City of Savannah. DeMott entered the visitor center, purchased tickets for the trolley tour, and then walked across the parking lot to a kiosk to inquire about where to board the trolley. DeMott was told that she should board the trolley at the front door of the visitor center where she had just purchased the tickets. Because she had to walk back across the parking lot, DeMott's husband warned her to " watch the pot holes [sic]." En route back to the visitor center, DeMott tried to step around a pothole, but the asphalt under her foot gave way, and she fell.

On March 16, 2010, DeMott filed a premises liability action against the City of Savannah, but later determined that the parking lot where she fell was owned by Old Town. On November 16, 2011, three years following her injury, DeMott amended her complaint to allege a premises liability claim against Old Town.[1] When Old Town moved for summary judgment on DeMott's claim because the two-year statute of limitation had expired, see OCGA ยง 9-3-33, DeMott, on July 10, 2012, again amended her complaint in order to allege a breach of contract claim against Old Town as a common carrier. She alleged that Old Town, as a common carrier, owed her an extraordinary ...


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