DAVIDSON et al.
METICULOUSLY CLEAN SWEEPERS, LLC
Negligence. Gwinnett State Court. Before Judge South.
Katherine L. McArthur, Caleb F. Walker, for appellants.
Green & Sapp, Henry D. Green, Jr., Daniel J. Moriarty, for appellee.
BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.
In January 2011, after a winter storm, plaintiff Nancy Davidson fell outside a Dollar Tree store in a Macon shopping center owned by three corporate entities (collectively, " Rivergate" ). Davidson and her husband sued Rivergate; its property management company; Dollar Tree; the Dollar Tree manager; and Meticulously Clean Sweepers, LLC (" MCS" ), an independent contractor which had applied a de-icing mixture to the area on the night before Davidson fell. After all defendants except MCS settled with the Davidsons, MCS moved for summary judgment, which was granted on grounds including that the Davidsons were not third-party beneficiaries of the contract between Rivergate and MCS and that there was no evidence that MCS had been negligent. On appeal, the Davidsons argue that the grant of summary judgment was error because questions of material fact remain as to whether MCS was negligent in its application of the de-icing mixture, which it had undertaken to do in its contract with Rivergate; whether that negligence was a proximate cause of Davidson's [329 Ga.App. 641] injury, and whether MCS had superior knowledge of the hazard posed by ice in the area where Davidson fell. We reject these contentions and therefore affirm.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991) (citations omitted).
Viewed in favor of the Davidsons, the record shows that in February 2010, Rivergate entered into a written contract with MCS to provide sweeping services, including the " sweeping and blowing of all trash, leaves and other matter throughout the front and rear parts" of the shopping center, " 7 days a week[.]" The contract specified that " [n]othing" in the contract " shall be deemed to establish any partnership, joint venture or agency relationship between the parties other than that of an independent contractor performing the services expressly provided for herein," that each party " shall have no authority to bind [the other] or its affiliates with respect to third parties," and that " [n]o third parties ... are intended to, nor shall they be deemed to have a right to benefit from, or seek to enforce, any of the provisions" of the contract. For an additional charge, MCS also agreed to " de-ice" the parking lot and sidewalks.
As a winter storm approached in January 2011, Rivergate asked MCS to de-ice the premises. MCS performed de-icing services on January 9, 11, 12, and 13. The storm arrived in the area on January 10. At around 10:30 p.m. on the evening of January 11, the owners of MCS, Mazahir Ataelsid and Ali Pruitt, went to the shopping center to perform both sweeping and de-icing services. As Ataelsid followed behind him in the company truck, which contained bags of de-icing salt and sand, Pruitt applied at least three to five bags of a mixture of these ingredients to
the parking lot and the sidewalks. Pruitt [329 Ga.App. 642] applied the mixture by hand from a five-gallon bucket he carried, returning several times to the truck to refill his bucket from the bags of salt and sand. Ataelsid testified that as Pruitt did his work, " [i]t was beginning to flurry, so there wasn't like an accumulation here and an accumulation here. ... I didn't look at the shopping center and say it was all white." Ataelsid also testified that she saw " not much" snow on the ramp from the parking lot to the sidewalk in front of the Dollar Tree and that " [t]here was no ice at all" in the area.
On the next morning, January 12, 2011, Davidson drove to the shopping center with her one-year-old grandson. As she got out of her car, she saw that the parking lot surface was " clear" and that " everything had dried up." Before crossing a traffic lane in front of the stores, Davidson picked up her grandson in order to carry him across the lane and onto a small paved ramp leading from the parking lot surface and running parallel to the sidewalk in front of the Dollar Tree. As she did so, Davidson noticed a " little puddle of water" along the curb of the sidewalk at the beginning of the ramp, which she stepped to avoid. According to Davidson, the puddle " did not look like ice." As she walked around the puddle and stepped onto the ramp, she fell, injuring her right leg. Davidson interpreted photographs of the area of her fall taken later that day as showing ...