United States District Court, S.D. Georgia, Augusta Division
Randal Hall, Judge
the Court is Defendant's motion for summary judgment.
(Doc. 35.) The Clerk has given Plaintiff notice of the
summary judgment motion and the summary judgment rules, of
the right to file affidavits or other materials in
opposition, and the consequences of default. Therefore, the
notice requirements of Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985) (per curiam), have been
satisfied. For the following reasons, Defendant's motion
all inferences in favor of Plaintiff, the facts of this case
are as follows. On August 26, 2014, Plaintiff went to lunch
with her daughter at Defendant's restaurant. (Knoeferl
Dep., Doc. 37-1, at 29.) After being unable to find a
disability parking space, Plaintiff's daughter offered to
drop Plaintiff off at the restaurant's entrance and park
the car. (Id.) After eating their meal and
purchasing a few items in the restaurant's gift shop,
Plaintiff and her daughter left the restaurant.
(Id.) Rather than have her daughter pull around,
Plaintiff decided to walk to her car, which was parked on the
other side of the lot. (Id. at 32.)
Plaintiff placed her purse in the front seat of her car and
when she turned around to open the back door, she fell and
broke her femur. (Id. at 3 9) Plaintiff alleges that
an indentation in the pavement caused her fall. (Id.
eleven years Defendant has owned the lot, Plaintiff is the
only person who had a trip and fall injury. (Brannon Aff.,
Doc. 37-2, ¶¶ 4, 10.) Although Defendant does not
have a written policy regarding lot maintenance, twice a day,
one of Defendant's employees goes around the lot
inspecting for debris and other potential hazards.
(Id. ¶ 18.) Additionally,
Steve Brannon, manager of Defendant's restaurant, drives
around the lot every day to conduct a third inspection.
(Brannon Dep., Doc. 41-1, at 13.) Such inspections took place
on the day of Plaintiff's injury. (Brannon Aff., Doc.
37-2, ¶ 20.)
August 22, 2016, Plaintiff initiated this action alleging
that Defendant, as landowner, breached its duty of I ordinary
care and was liable for Plaintiff's injuries. Defendant
now moves for summary judgment arguing that Plaintiff has
failed to provide evidence showing Defendant knew about the
indentation, and that Plaintiff was not exercising ordinary
care when she fell.
motion for summary judgment will be granted if there is no
disputed material fact and the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). Facts are material if
they could affect the results of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court
must view facts in the light most favorable to the non-moving
party and draw all inferences in its favor. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The movant initially bears the burden of
proof and must demonstrate the absence of a disputed material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The movant must also show no reasonable jury could
find for the non-moving party on any of the essential
elements. Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).
movant carries its burden, the non-moving party must come
forward with significant, probative evidence showing there is
a material fact in dispute. Id. at
1116. The non-movant must respond with affidavits or other
forms of evidence provided by Federal Rule of Civil Procedure
56. Id. at 1116 n.3. The non-movant cannot survive
summary judgment by relying on its pleadings or conclusory
statements. Morris v. Ross, 663 F.2d 1032, 1033-34
(11th Cir. 1981) . After the non-movant has met this burden,
summary judgment is granted only if "the combined body
of evidence is still such that the movant would be entitled
to a directed verdict at trial - that is, such that no
reasonable jury could find for the non-movant."
Fitzpatrick, 2 F.3d at 1116.
Georgia law, a landowner who invites people onto its property
owes a duty of ordinary care to keep those premises safe.
O.C.G.A. § 51-3-1. To prevail on a premises liability
claim, a plaintiff must show the hazard was one the owner
"should have removed in the exercise of ordinary care
for the safety of the invited public." Am.
Multi-Cinema, Inc., v. Brown, 679 S.E.2d 25, 27-28 (Ga.
2009). In a "trip and fall" case, the plaintiff
must present some evidence that: (1) the owner had actual or
constructive knowledge of the hazard, and (2) the plaintiff
lacked such knowledge, despite exercising reasonable care.
McLemore v. Genuine Parts Co., 722 S.E.2d 366, 368
(Ga.Ct.App. 2012) (quoting Prikle v. Robinson
Crossing, LLC, 612 S.E.2d 83, 84 (Ga.Ct.App.
2005)). “[T]he plaintiff's evidentiary burden
concerning the second prong is not shouldered until the
[land]owner establishes that the plaintiff was negligent,
that is, she intentionally and unreasonably exposed herself
to a hazard of which she knew or, in the exercise of
reasonable care, should have known existed."
Id. ("With respect to the second prong, we
determine whether the record shows plainly, palpably and
without dispute that plaintiff had knowledge of the hazard
equal or superior to that of defendants.").
argues that since no similar accident occurred on its
property during the eleven years it has been owner, Plaintiff
failed to show constructive knowledge. However, constructive
knowledge can be inferred if there is evidence that the owner
did not have a reasonable inspection program. Landrum v.
Enmark Stations, Inc., 712 S.E.2d 585, 588 (Ga.Ct.App.
2011) . To prevail at summary judgment due to lack of
constructive knowledge, the owner must show it had a
reasonable inspection policy which was followed on the day of
the accident. Matthews v. The Varsity, Inc., 546
S.E.2d 878, 880-81 (Ga.Ct.App. 2001).
parties do not dispute that Defendant had an inspection
procedure that was followed on the day of the accident.
Instead, the question is whether Defendant's inspection
procedure was reasonable. Nevertheless, this question cannot
be decided by summary judgment. Wallace v. Nissan of
Union City, Inc., 524 S.E.2d 542, 544-45 (Ga.Ct.App.
1999). While Defendant has introduced evidence showing it
performed daily inspections, there is no evidence that
Defendant's procedure is reasonable as a matter of law.
Moreover, Defendant has failed to demonstrate that the
hazardous nature of the uneven pavement could not have been
revealed through a reasonable inspection procedure. Cf.
Chastain v. CF Ga. North DeKalb, L.P., 569 S.E.2d 914,
916 (Ga.Ct.App. 2002) (summary judgment was appropriate where
a reasonable inspection procedure could not reveal ...