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Bartenfeld v. Chick-Fil-A, Inc.

Court of Appeals of Georgia, Second Division

June 15, 2018


          MILLER, P. J., ANDREWS and BROWN, JJ.


         After 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.

         To 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).

         So 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 restaurant.

         When 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.

         In her 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.

         Christopher 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.

         Bartenfeld 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.

         Both 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.

         The 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.

         In Case 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 doctrine" claim.

         Case No. A18A0043

         We 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 fails.

         1. Professional negligence.

         The 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.

         When a 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 simple negligence.

(Citation and footnote omitted.) Hamilton-King v. HNTB Ga., 311 Ga.App. 202, 204 (715 ...

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