MILLER, P. J., RICKMAN and REESE, JJ.
Miller, Presiding Judge.
Simon appeals from the trial court's grant of summary
judgment to The Kroger Company ("Kroger") and
Michael Murphy, the manager of a Kroger store in Decatur,
Georgia. Simon filed suit against both parties after she
tripped and fell over an elevated metal portion of a cart
corral in the Kroger parking lot. On appeal, Simon contends
that the trial court erred in granting the appellees'
summary judgment motion and that it also erred in denying her
motion to compel discovery. Having reviewed the record, we
determine that the trial court erred in granting the summary
judgment motion but did not clearly abuse its discretion in
denying Simon's motion to compel. We therefore affirm in
part and reverse in part.
standards for summary adjudication are well settled."
Berni v. Cousins Properties, Inc., 316
Ga.App. 502, 504 (729 S.E.2d 617) (2012). A moving party is
entitled to summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." Id. "On appeal, we review the grant
or denial of summary judgment de novo, construing the
evidence and all inferences in a light most favorable to the
nonmoving party." (Citation omitted.) Washington v.
J.D. Royer Wholesale Florist, 275 Ga.App. 407 (620
S.E.2d 626) (2005).
viewed, the record shows that in August 2016, Simon went to a
Kroger store in Decatur, Georgia. After exiting the store,
Simon loaded her groceries into her car and pushed her
shopping cart over to the corral. While leaving the corral,
Simon's right foot caught on the steel base of the corral
("the crossbar"), which caused her to fall and
break her arm. The crossbar, which typically lies flat on the
asphalt, was raised off the ground on one side, at a height
of approximately one and one-eighth inches. This damage had
occurred after a delivery truck hit the corral. Simon was
"very certain" that she tripped over the damaged
section of the crossbar because she "felt [her] foot
hang up on something" and when she looked back at the
corral, she saw that the elevated part of the crossbar had
been in her path. Kroger and Murphy concede on appeal - as
they did at the hearing on their motion for summary judgment
- that they knew of the damaged condition of the cart corral
months before Simon's fall. Murphy testified that he had
called the district operations manager to inform him that the
corral was "hit and bent," but that the corral had
not been replaced.
filed a complaint against Kroger and Murphy in DeKalb County
State Court, alleging that they knew of the condition of the
corral and were negligent in failing to maintain it and warn
her of its dangerous condition. Both appellees moved for
summary judgment, arguing that the condition of the corral
was open and obvious, that Simon had successfully traversed
the crossbar before she eventually tripped, and that Simon
had failed to exercise ordinary care. Murphy also argued in a
separate motion that any negligent acts that he allegedly
committed were done in the scope of his employment and that
those acts were attributable to Kroger, rendering him an
unnecessary party to the lawsuit.
hearing, the trial court determined that the damage to the
crossbar was a "clearly visible static condition,"
that nothing had obstructed Simon's view of the damage,
and that it had been present for months. The trial court
granted the appellees' motion for summary judgment and
denied Murphy's separate motion for summary judgment as
moot. This timely appeal followed.
First, Simon argues that the trial court erred in granting
summary judgment. According to Simon, there is a fact issue
as to whether the hazard was a clearly visible static
condition, and that, even assuming it was, there is also a
fact issue regarding her knowledge of the condition that
precipitated her fall. We agree that the grant of summary
judgment was improper.
prevail on a 'trip and fall' claim, the plaintiff
must prove that (1) the premises owner had actual or
constructive knowledge of the hazard; and (2) the plaintiff
lacked knowledge of the hazard, despite her exercise of
ordinary care, due to actions or conditions within the
owner's control." (Citation omitted.) McLemore
v. Genuine Parts Co., 313 Ga.App. 641, 643 (722 S.E.2d
366) (2012). "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 or would have had
equal or superior knowledge had the plaintiff exercised
ordinary care for personal safety." (Citation and
punctuation omitted.) Id.
approach our analysis, we are mindful of the Supreme Court of
Georgia's cautioning that
the 'routine' issues of premises liability, i.e., the
negligence of the defendant and the plaintiff, and the
plaintiff's lack of ordinary care for personal safety are
generally not susceptible of summary adjudication . . . .
[A]n invitee's failure to exercise ordinary care is not
established as a matter of law by the invitee's admission
that he did not look at the site on which he placed his foot
or that he could have seen the hazard had he visually
examined the floor before taking the step which led to his
downfall. Rather, the issue is whether, taking into account
all the circumstances existing at the time and place of the
fall, the invitee exercised the prudence the ordinarily
careful person would use in a like situation.
Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (B)
(493 S.E.2d 403) (1997). See Sadtler v. Winn-Dixie
Stores, Inc., 230 Ga.App. 731, 732-733 (498 S.E.2d 101)
(1998) (applying these principles to a trip and fall claim).
"Where reasonable minds can differ as to the conclusion
to be reached with regard to questions of whether an
owner/occupier breached the duty of care to invitees and
whether an invitee exercised reasonable care for personal
safety, summary adjudication is not appropriate."
Robinson, supra, 268 Ga. at 740 (1).
the appellees have conceded their knowledge of the hazard,
the determinative question is whether there is a fact issue
regarding the second prong of a premises liability claim,
that is, whether there is a genuine issue of material fact
regarding whether Simon lacked knowledge of the damaged
portion of the crossbar despite her exercise of ordinary
determine that fact issues remain regarding Simon's
knowledge of the hazard as well as her exercise of ordinary
care. In his report, Simon's expert explained that the
area in which Simon fell was a foreseeable or predictable
pedestrian path, and the change in elevation was
"inherently hazardous." He explained that according
to standard practices for safe walking surfaces, abrupt
changes in elevation in surfaces exceeding ...