MILLER, P. J., ANDREWS and BROWN, JJ.
MILLER, PRESIDING JUDGE.
tripping and falling over a concrete wheel stop in the
parking lot of a Chick-fil-A restaurant, Jeanette Bartenfeld
sued Chick-fil-A, Inc. ("CFA") and Christopher
Darley, the restaurant's owner and franchisee, on
theories of negligence and nuisance. The trial court granted
full summary judgment to Darley, ruling that he had no
control over the design or repair of the parking lot, and
partial summary judgment to CFA, finding that
Bartenfeld's negligent design and nuisance claims failed
as a matter of law, but that she could proceed against CFA
under the "distraction doctrine." Bartenfeld
appeals, and CFA cross-appeals. We conclude that both
defendants were entitled to summary judgment on all claims
because Bartenfeld failed to establish that a hazard existed.
We therefore affirm in part and reverse in part.
prevail on a motion for summary judgment, the moving party
must show that there is no genuine issue as to any material
fact and that the undisputed evidence warrants judgment as a
matter of law. OCGA § 9-11-56 (c). We review de novo a
trial court's ruling on a motion for summary judgment,
viewing the evidence in the light most favorable to the
nonmovant. H. J. Wings & Things v. Goodman, 320
Ga.App. 54 (739 S.E.2d 64) (2013).
viewed, the record shows that on the morning of September 26,
2013, Bartenfeld visited a Chick-fil-A restaurant with her
nephew and his girlfriend. Bartenfeld's nephew parked the
car in a row of parking spaces facing the restaurant on the
other side of a drive-through window and lane. A strip of
asphalt painted with white hatch marks served as a buffer
between the drive-through lane and the parking spaces, and a
similarly-marked pedestrian walkway crossed the drive-through
lane and led to the restaurant. Centered at the head of each
parking space was a low cement barrier, called a wheel stop,
intended to prevent parked cars from encroaching into the
buffer strip and drive-through lane. Bartenfeld, her nephew,
and his girlfriend exited the car, walked across the
drive-through lane next to the pedestrian path, and entered
the three later exited the restaurant, they followed the same
route they had taken to enter. Bartenfeld testified at her
deposition that she became distracted by a vehicle stopped at
the drive-through window, and she looked in the direction of
that vehicle as she crossed the drive-through lane. Once
Bartenfeld cleared the drive-through lane and reached the
buffer strip, she stopped looking at the drive-through window
and instead looked forward. As Bartenfeld approached her car,
her foot hit the wheel stop in the parking space next to the
one where her car was parked. Bartenfeld tripped and fell,
suffering a broken arm and bruises.
deposition, Bartenfeld testified that she did not see the
wheel stop over which she tripped when she entered or exited
the restaurant. There was no car parked in the space
containing that wheel stop at either time. The parking lot
was black asphalt, and the wheel stop was unpainted cement.
According to Bartenfeld, she did not see the wheel stop
because it "blended in" with the white hatch marks
on the buffer strip and pedestrian path. Bartenfeld admitted
that she was familiar with wheel stops and had encountered
them previously in other parking lots.
Darley owned and operated the restaurant as a franchisee,
managing day-to-day operations; however, CFA owned the real
property and designed the improvements thereon, including the
building and parking lot. Shortly before Bartenfeld's
fall, CFA resurfaced the parking lot and restriped it with
fresh paint. The wheel stops were removed for this work and
then replaced following its completion. Darley had no input
in the parking lot work.
sued CFA and Darley, alleging that her fall resulted from
their negligence and maintenance of a nuisance. In addition,
Bartenfeld sought punitive damages from CFA based upon its
alleged violation of professional standards, internal policy,
and a municipal code governing the use of wheel stops.
defendants moved for summary judgment on all claims. The
trial court granted Darley's motion for summary judgment
in full, finding that he owed Bartenfeld "no duty . . .
with respect to the premises" because the undisputed
evidence showed that CFA, not Darley, exercised control over
the design of the restaurant's parking lot and the
selection and placement of wheel stops.
trial court granted CFA's motion for summary judgment in
part. The trial court found that (1) "any claims based
on negligent or defective design or engineering" failed
because Bartenfeld "offered no expert testimony
regarding the appropriate standard for such engineering and
design decisions"; (2) Bartenfeld failed to show that
the professional standards she cited had been adopted in
Georgia or that a violation of those standards established a
hazardous condition; (3) the wheel stop did not present a
hazardous condition under Georgia law; (4) there was no
evidence to support Bartenfeld's claim of nuisance; and
(5) summary judgment was proper on Bartenfeld's claim for
punitive damages. However, the trial court denied summary
judgment to CFA to the extent that Bartenfeld claimed the
drive-through was a distraction.
No. A18A0042, Bartenfeld appeals from the trial court's
grant of full summary judgment to Darley and partial summary
judgment to CFA. In Case No. A18A0043, CFA cross-appeals from
the trial court's denial of its motion for summary
judgment with respect to Bartenfeld's "distraction
begin with CFA's cross-appeal, as it is dispositive of
the issues before us. CFA argues that "[i]n the absence
of evidence that the premises were defectively or negligently
designed and engineered or that the wheelstop was a hazardous
condition, CFA, Inc.'s motion for summary judgment should
have been granted in its entirety." We agree.
Bartenfeld's negligence claim sounds in professional
negligence and fails for lack of supporting expert testimony
that a hazard existed. Further, even if the claim could be
characterized as one for simple negligence, it fails because
the wheel stop was not a hazard as a matter of law. And in
the absence of a hazard, Bartenfeld's nuisance claim also
trial court ruled that "it appears that [Bartenfeld] is
alleging, at least in part, that the parking lot was
defectively designed and engineered." We agree with the
trial court's characterization of Bartenfeld's
allegations and conclude that Bartenfeld presented a claim
for professional negligence.
hazard results from allegedly negligent design or
engineering, then the plaintiff's claim is one for
professional malpractice. Dept. of Transp. v.
Mikell, 229 Ga.App. 54, 56-59 (1) (a) (493 S.E.2d 219)
(1997); see also H. Elton Thompson & Assoc., P. C. v.
Williams, 164 Ga.App. 571, 572 (298 S.E.2d 539) (1982).
"Whether a complaint alleges ordinary negligence or
professional malpractice is a question of law for the court,
regardless of how the plaintiff categorizes it."
(Citation and punctuation omitted.) Grady Gen. Hosp. v.
King, 288 Ga.App. 101, 102 (653 S.E.2d 367) (2007).
Although complaints against professionals may state claims
based on ordinary as well as professional negligence, where
the allegations of negligence against a professional involve
the exercise of professional skill and judgment within the
professional's area of expertise, the action states
professional negligence. If a claim of negligence goes to the
propriety of a professional decision rather than to the
efficacy of conduct in the carrying out of a decision
previously made, the claim sounds in professional
malpractice. However, administrative, clerical, or routine
acts demanding no special expertise fall in the realm of
(Citation and footnote omitted.) Hamilton-King v. HNTB
Ga., 311 Ga.App. 202, 204 (715 ...