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Keisha, LLC v. Dundon

Court of Appeals of Georgia, Fourth Division

January 22, 2018

KEISHA, LLC
v.
DUNDON.

          DILLARD, C. J., RAY and SELF, JJ.

          Ray, Presiding Judge.

         Keisha, LLC, which owns and operates a Sunoco gas station in Richmond Hill, Ga., filed this interlocutory appeal from the trial court's denial of its motion for summary judgment in a slip-and-fall case brought by William Dundon. Keisha argues that the trial court erred because: (1) Keisha lacked actual and constructive knowledge of the hazard; (2) Dundon assumed the risk of his injury; (3) the rescue doctrine does not apply; and (4) Dundon's derivative negligent hiring and negligent retention claims fail as a matter of law because his underlying negligence claim fails. For the reasons that follow, we agree and reverse.

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.

(Citation omitted.) Adamchick v. Cracker Barrel Old Country Store, Inc., 281 Ga.App. 677, 677 (637 S.E.2d 44) (2006).

         The evidence shows that Dundon stopped at the Sunoco station to get gasoline on April 23, 2014. Dundon's wife told him that a patron at a different pump needed help because the pump "was spilling gas all over the place." Dundon saw gas spilling, ran around the corner of the car to help the patron, and slipped on the gas, which had formed a "fairly big" puddle occupying three-to-four feet. He fell about one-third of the way across the puddle, and he deposed that he fell and injured his elbow five-to-ten seconds after he first saw the spray of gasoline. Dundon also deposed that he saw the gasoline spilling and knew that the ground could be slippery because of the spill.

         The patron whom Dundon attempted to help, Sarah Moore, deposed that 15-to-20 seconds elapsed from the time the gasoline began spilling and the time Dundon fell. He got up, however, and helped Moore shut off the pump.

         Moore had intended to pump gas for her truck, which was pulling a 29-foot camper, but when she lifted the nozzle "without touching the lever[, ]" gas began spraying out, and she was unable to turn it off. At the time of the incident, the gas station owner/manager, Mrudula Patel, was inside the gas station. Her view of the spillage area was blocked by Moore's vehicle and Dundon's vehicle. There is no evidence that a gas station employee was outside at the time of the spill or Dundon's fall.

         Dundon's wife deposed that she went into the store and told Patel, "there's a woman having a problem at the first pump." Patel did not come out, so she "went back and [she] said there's gasoline going all over the place, " and Patel then came out demanding that someone pay for the gas. Patel shut off the gasoline from inside the store.

         Dundon deposed that he did not know what caused the pump to spray gasoline and had no knowledge of prior or subsequent problems with the pumps. Moore also deposed that she did not know what caused the pump to spray gas. Patel deposed that although the gas station keeps no written maintenance logs, an employee conducts daily, routine maintenance checks of the fuel pumps and that her husband performed such a check on the date of the incident. Another company, located across the street from the gas station, also does maintenance checks two or three times per week. Patel also deposed that no prior or subsequent similar spillage incidents had occurred.

         Dundon sued the gas station to recover for his injuries, alleging that it was negligent in "failing to provide sufficient warning of the subject dangerous substance, by failing to remove the dangerous substance, by failing to use ordinary care in preventing hazardous conditions[, ] . . . and by hiring and retaining . . . unsafe [John Doe] employee(s)[.]" Keisha moved for summary judgment, arguing that there was no evidence of the gas station's superior knowledge, that Dundon had assumed the risk of his injuries, and that no evidence supported the negligent hiring/retention claim. The trial court denied Keisha's motion in an order which did not reveal its reasoning, and Keisha filed the instant appeal.

         Under OCGA § 51-3-1, where an owner or occupier of land induces others to visit the premises for any lawful purpose, he is liable to those persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. To prevail on a slip-and-fall claim, the plaintiff must show: (1) that the premises owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite an exercise of ordinary care, because of actions or conditions within the owner's control. McLemore v. Genuine Parts Co., 313 Ga.App. 641, 643 (722 S.E.2d 366) (2012). The plaintiff's evidentiary burden as to the second prong of the test does not arise until the owner shows that the plaintiff was negligent, that is, that the plaintiff had knowledge of the hazard equal to or superior to the owner's, or that the plaintiff would have had such knowledge had he exercised ordinary care for his own safety. Id.

         1. Keisha argues that the trial court erred in denying its motion for summary judgment because the undisputed evidence shows that Dundon had actual and superior knowledge of the hazard, and because there is no evidence that Keisha had actual or constructive knowledge of the spill.

         As outlined above, there is no evidence, nor does Dundon argue on appeal, that Keisha had actual knowledge of the spill. See Watson v. Williams Travelcenter, Inc., 265 Ga.App. 362, 364 (1) (a) (593 S.E.2d 908) (2004) (where nozzle popped out of tank and spilled gasoline on which plaintiff immediately fell, gas station had no actual knowledge of this ...


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