The initial inquiry by trial courts in Georgia in slip and fall cases can result in summary judgment and end Plaintiff’s case before the jury has a chance to render a verdict. However, attempts by the defendant stores to move for summary judgment and escape liability for the injuries caused by their negligence are substantially hampered by Georgia case law from the 1960’s. In fact other jurisdictions have cited a 1967 Georgia case as precedent for the evolving principle that a store’s “mode of operation” can fulfill the superior knowledge or constructive notice requirement in a premises liability case. Colonial Stores, Inc. v. Donovan, 154 S.E.2d 659 (Ga. App. 1967), addresses hazards created by the manner of displaying merchandise in a retail store. Pursuant to the Colonial Stores, Inc. decision:
“A person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care. A storekeeper who balances merchandise on display in a precarious manner (or allows another to so arrange a display) should anticipate that slight force, not sufficient ordinarily to suggest to the actor who does not know of the peril that injury will result, may be sufficient to cause injury, and the storekeeper is not relieved of the consequences of this negligence by an intervening act which he should have anticipated. Constructive knowledge of a defect, i.e., that the defendant ought to have known of the defect in the exercise of ordinary care, is sufficient to charge the defendant with liability for injuries caused by the defect. Ordinarily, whether the owner or occupant of land exercises ordinary care in keeping premises in a safe condition, upon which an invitee goes and is injured, whether the invitee could have avoided injury in the exercise of ordinary care, or whether both were negligent in some degree, as the proximate cause of an injury, or the absence of any negligence, are questions for jury determination, which the court will not decide as a matter of law on demurrer except as to acts declared by law to be negligence, or palpable and indisputable cases where reasonable minds cannot differ as to the conclusion to be reached.”
Citing Colonial Stores, Inc., in Keaton v. A.B.C. Drug Co., 467 S.E.2d 558, 561 (Ga. 1996), the Georgia Supreme Court affirmed a reversal of summary judgment for the defendant premises owner. Importantly, the Supreme Court of Georgia focused on the manner in which the merchant/store owner displayed merchandise which created the likelihood that a spill would occur rather than the spill itself and held: the merchant had constructive knowledge of a hazard, superior to the knowledge of the plaintiff, under the following circumstances. The jury was authorized to find that by placing a caustic substance contained in a package without some sort of leakage preventer, such as a protective wrap, at a level above the eyes of an average adult, ABC should have anticipated that in the event of a leakage, injury would result. Further, by placing the bleach at such a level, ABC created a high risk of injury from spilling bleach by virtue of a loose cap, and created an impediment to a person’s ability to exercise caution by checking to see if the cap was loose. Clearly, had ABC placed the bleach at a level significantly below the eyes of an average adult, the risk of injury is different in type and scope from the risks presented when the bleach is placed at a higher level. Also, the ability of a plaintiff to avoid injury by exercising caution for his or her own safety is substantially heightened if the bleach is placed at a lower level.” (internal citations omitted)
The inquiry of superior knowledge is always an important one in these types of cases and the plaintiff’s attorney should address this, and other critical issues in these types of cases, to avoid the possibility of summary judgment being awarded to defendants when they have created a dangerous condition and are not entitled to summary judgment on these issues.
Attorney Robert J. Fleming has been handling premises liability, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.