Kent v. Callaway Gardens Resort, Inc., No. 4:2009cv00070 - Document 47 (M.D. Ga. 2010)
Court Description: ORDER denying 35 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 06/18/2010. (jbo)
Download PDF
<![CDATA[
Kent v. Callaway Gardens Resort, Inc. Doc. 47 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION TAMMY KENT, as mother and next friend of TK, * * Plaintiff, * vs. CASE NO. 4:09-CV-70 (CDL) * CALLAWAY GARDENS RESORT, INC., a Georgia corporation doing business in Alabama, * * Defendant. * O R D E R This action arises from the alleged negligence of Defendant Callaway Gardens Resort, Inc. in maintaining the premises of its Cecil B. Day Butterfly Center (“Butterfly Center”). Plaintiff Tammy Kent alleges that due to Defendant’s negligence, Plaintiff’s minor daughter (“TK”) sustained serious injury when she slipped and fell while visiting the Butterfly Center. Presently pending before the Court is Defendant’s Motion for Summary Judgment (Doc. 35). For the following reasons, Defendant’s motion is denied. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” 56(c)(2). Fed. R. Civ. P. In determining whether a genuine issue of material fact Dockets.Justia.com exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id. FACTUAL BACKGROUND Viewing the evidence in the light most favorable to Plaintiff reveals the following: In December of 2007, several members of the Kent family visited the Butterfly Center while they were vacationing in Georgia. Those present at the Butterfly Center were TK, her father Norman Kent (“Mr. Kent”), her older sister (“PK”), and other family members. 11:17-12:5, Nov. 11, 2009.)1 Center with her camera (TK Dep. As TK walked through the Butterfly getting ready butterfly, she fell and was injured. to take a picture (Id. at 25:1-26:8.) of a At the time of TK’s fall, the Butterfly Center floor was “slippery and wet.” (Ex. A to Pl.’s Resp. to Def.’s Mot. for Summ. J. [hereinafter Pl.’s Resp.], TK Aff. ¶ 5, Feb. 19, 2010.) 1 TK never saw water on the TK’s mother, Plaintiff Tammy Kent, was not present. 23.) 2 (TK Dep. 13:19- Butterfly Center floor;2 however, she felt wetness as soon as she fell. (TK Dep. 52:11-21; TK Aff. ¶ 5 (“The surface of the floor had enough water immediately upon it that my hands after my fall.”).) and clothing became wet TK alleges, therefore, that she slipped and fell because of the slippery and wet condition of the Butterfly Center floor. (TK Dep. 24:14-15; TK Aff. ¶ 5.) Although they did not see TK fall, Mr. Kent and PK were each present at the Butterfly Center and came to TK’s aid after she fell. (Norman Kent Dep. 17:9-14, Nov. 11, 2009 [hereinafter N. Kent Dep.]; PK Dep. 10:8-16, Nov. 11, 2009.) saw any water where TK fell. 15.) Like TK, neither Mr. Kent nor PK (N. Kent Dep. 18:20-22; PK Dep. 12:13- PK, however, saw water on TK’s pants after her fall. 11:5-7.)3 TK did not tell PK that she had slipped in water until the family was leaving the Butterfly Center. unclear (PK Dep. when TK told Mr. Kent why she (Id. at 14:1-16.) fell. (N. Kent It is Dep. 18:23-19:14.) 2 There was nothing down, and the lighting explained, however, that encountered it because photographs. (TK Aff. ¶ to block TK’s view of the water had she looked that day was “okay.” (TK Dep. 27:8-16.) TK she did not see the water on the floor before she she was looking at the butterflies and taking 6.) 3 Mr. Kent and PK also testified that there was nothing to block their view of any water had it been present. (N. Kent Dep. 24:15-21; PK Dep. 12:3-8.) 3 Defendant’s policy was to have an employee in the Butterfly Center at all times when it was open to the public.4 23:15-23, Jan. 11, 2010.) (Buckman Dep. Mr. Michael Buckman, one of Defendant’s employees at the Butterfly Center, was on the premises on the day of TK’s slip and fall. (Id. at 18:16-21.) The Butterfly Center did not assign employees to inspect the facility on a regular basis for guest safety. (Id. at 23:6-11.) Specifically, the Butterfly Center had no policy, written or otherwise, for inspecting the facility’s floors for moisture. (Id. at 40:2-10.) Instead, Butterfly Center employees “would walk through the conservatory and the rest of the facility on a daily basis to check the readiness of the facility for the guests.” (Id. at 17:12-15.) The employees any specific guidelines, written or otherwise, to inspect the facility. (Id. at 16:22-17:8, 18:10-15, 19:7-18.) cleanliness” and would clean did not use Instead, they “were looking for up to the best of “[a]nything that would impact the guest experience.” 18:9, 21:23-22:8.) their ability (Id. at 17:16- Although the Butterfly Center did not have any policies regarding keeping the floors dry, Mr. Buckman testified that when he walked through the facility, he would inspect the floors and look for “anything that would hinder the guest experience,” including water. (Id. at 21:12-22:3.) Mr. Buckman testified that he had a 4 The Butterfly Center did not keep an employee log, so it is possible there were times where the facility was open to the public but no employee was present. (Buckman Dep. 23:24-24:5, Jan. 11, 2010.) 4 personal practice of walking through the Butterfly Center ten to fifteen times per day in the course of his work. (Id. at 22:14-18.) However, the purpose of his walk-throughs was not to inspect the facility for safety, but rather to “come and go from the lab, to converse with guests, answer questions, [and] attend the programs in the lobby.” from rain (Id. at 22:21-23:5.) leaks and “misters” Although he was aware that water occasionally accumulated on the Butterfly Center floor (id. at 32:13-33:10), Mr. Buckman testified that the Butterfly Center floors are generally safe and that “the floors [are not] even slippery when [they are] wet” (id. at 31:5-18). DISCUSSION Under Georgia law, a landowner is liable to invitees for injuries caused by his failure to exercise ordinary care in keeping his premises and approaches safe.5 ordinary care requires the O.C.G.A. § 51-3-1. owner to protect the This duty of invitee from unreasonable risks of harm of which the owner has superior knowledge and to inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge. Robinson v. Kroger Co., 268 Ga. 735, 740, 493 S.E.2d 403, 408-09 (1997). 5 The Court has jurisdiction over this 28 U.S.C. § 1332, based on diversity of citizenship The parties appear to agree Georgia law controls. will apply the substantive law of the State of Defendant’s summary judgment motion. Erie R.R. Co. 64, 78-80 (1938). 5 The case pursuant to between the parties. Therefore, the Court Georgia in deciding v. Tompkins, 304 U.S. Georgia Supreme Court has adopted a two-prong test in slip-and-fall cases. Id. at 748, 493 S.E.2d at 414. To establish liability, a plaintiff-invitee “must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions owner/occupier.” or Id. conditions within the control of the Further, as with all negligence cases, a slip- and-fall plaintiff must establish causation. Pennington v. WJL, Inc., 263 Ga. App. 758, 760, 589 S.E.2d 259, 261 (2003). Finally, the Georgia Supreme Court instructs 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, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson, 268 Ga. at 748, 493 S.E.2d at 414. I. Defendant’s Knowledge There is no evidence that Defendant had actual knowledge of the wet floor Plaintiff contends caused TK’s fall.6 The question, therefore, is whether Plaintiff has produced evidence that Defendant 6 There is some evidence Defendant knew wet spots occasionally formed on the Butterfly Center floor. (Buckman Dep. 32:13-33:10.) There is no evidence, however, that Defendant knew of the specific wet spot Plaintiff contends caused TK’s fall. 6 had constructive knowledge. A lack of reasonable inspection procedures evinces constructive knowledge: Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident . . . . Accordingly, the determinative question in this [case] is whether, viewed in the light most favorable to plaintiff[], the evidence shows that [the owner] followed reasonable inspection procedures at the time of the incident. Avery v. Cleveland Ave. Motel, Inc., 239 Ga. App. 644, 645, 521 S.E.2d 668, 670 (1999) quotation marks omitted). (third alteration in original) (internal Here, Plaintiff produced evidence that Defendant did not have a reasonable inspection program in place at the time of TK’s fall. (Buckman Dep. 21:14-16 (“[W]ere there any policies with regard[] to keeping the floors dry? A. No, sir.”); id. at 23:6-11 (“Q. Was there -- was there anyone that was assigned, as of December 28, 2007, to walk through the butterfly house on a regular basis to check to make sure that everything was still safe for the guests? A. No, sir.”).) Evidence of Defendant’s practice of having employees walk through the Butterfly Center to check the readiness of the facility for the guests and to ensure cleanliness, not safety, is not sufficient to establish a reasonable inspection procedure as a matter of law. Hartley v. Macon Bacon Tune, Inc., 234 Ga. App. 815, 818, 507 S.E.2d 259, 262 (1998) (finding policy that 7 employees should “tidy up” insufficient to negate constructive knowledge as a matter of law); KMart Corp. v. Jackson, 239 Ga. App. 176, 178, consisting 521 of S.E.2d 93, 96 (1999) (finding Court policy “having employees walk the store” insufficient to negate constructive knowledge as a matter of law). the inspection assumed Defendant did have a Further, even if reasonable inspection procedure in place, Defendant has not produced any evidence that its inspection procedure was actually carried out at the time of TK’s fall. (See Buckman Dep. 23:12-14 (“Q. And so obviously there was no log kept of anyone doing any regular inspections? A. No, sir.”).) Therefore, genuine issues of material fact remain as to whether Defendant had constructive knowledge of the wet floor which Plaintiff contends caused TK’s fall. Defendant argues that its constructive knowledge cannot be inferred since “Plaintiff has produced no evidence to suggest that even a thorough inspection immediately before the fact would have discovered the water Miss TK believed caused her to slip.” Br. in Supp. of Mot. for Summ. J. 9.) (Def.’s The Court disagrees. Defendant is correct that “[i]f there is no evidence that the water could have been discovered during a reasonable inspection, then no inference arises that [D]efendant[’s] failure to discover the defect was the result of any alleged failure to inspect.” Chastain v. CF Ga. N. Dekalb L.P., 256 Ga. App. 802, 803, 569 S.E.2d 914, 916 8 (2002). However, there is evidence in this case from which a reasonable jury could conclude that Defendant would have discovered the hazard if it had a reasonable inspection implemented at the time of the accident. program that was The common thread running through those cases finding that a hazard could not be discovered during a reasonable inspection is testimony that the hazard was difficult to see on the floor, even if someone was looking for it. See, e.g., id. (“Q[uestion to Ms. Chastain]: Would the water on the floor have been easily visible to you if you had been looking down? A: No.” (alteration in original) (internal quotation marks omitted)); Haskins v. Piggly Wiggly S., Inc., 230 Ga. App. 350, 351, 496 S.E.2d 471, 473 (1998) (“[Plaintiff] testified that she would not have been able to have seen the water before she fell even if she had been looking down at the floor.”). No such testimony exists here.7 Defendant has produced insufficient evidence that the wet floor would not have been discovered during 7 a reasonable inspection (when TK, PK, and Mr. Kent each testified that they did not see the water because they did not look for it, not because the water hazard was difficult or impossible to see had they been looking for it. (TK Dep. 27:3-7 (“Q. If you had physically looked down at the walking surface before you stepped in the water, could you have seen the water? . . . A. I don’t know."); PK Dep. 11:19-21 ("Q. Did you look in the area, generally, where she had fallen? A. No."); N. Kent Dep. 23:15-24:14 ("I did not look for water. I was trying to help my daughter up off the ground, and I wasn’t looking for a determination of what happened. . . . Q. [I]f there was water or foreign substance there that would have contributed to the fall, would you have seen that by virtue of having walked in the area? . . . A. I just cannot say if I would have seen it or not.").) 9 Defendant’s employees would have been looking for it). To the contrary, Mr. Kent testified that water was visible on the Butterfly Center floor. (N. Kent Dep. 18:16-17 (“Q. Did you see any foreign substance . . . on the walking surface? it was wet in the butterfly area. that had small puddles floor.”).) and A. There were spots where There were just different areas just a little bit of water on the Further, Mr. Buckman testified that his practice during “walk-throughs” was to look for and remove, among other things, water (Buckman Dep. 21:12-22:3), thus further indicating that water was visible on the Butterfly Center floor. Finally, Plaintiff produced evidence regarding the amount of water on the Butterfly Center floor sufficient to call into question whether a reasonable inspection would have discovered it. (TK Aff. ¶ 5 (“The surface of the floor had enough water upon it that my hands and clothing became wet immediately after my fall.”).) Therefore, the Court finds that the lack of evidence produced by Defendant that water was difficult to see on the Butterfly Center floor, combined with evidence that, when viewed in the light most favorable to Plaintiff, supports a finding that the wet floor was discoverable pursuant to a reasonable inspection, creates genuine issues of material fact as to whether Defendant had constructive knowledge of the hazardous wet floor. 10 II. Plaintiff’s Lack of Knowledge Despite Ordinary Care The second prong of the Georgia Supreme Court’s slip-and-fall test typically requires the Court to examine “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.”8 S.E.2d at 414. Robinson, 268 Ga. at 748, 493 However, the Georgia Supreme Court has also held that “the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff-i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Id. Here, Defendant did not address TK’s knowledge of the wet Butterfly Center floor in its summary judgment motion or briefing. Therefore, the Court finds that Defendant failed to point the Court to any evidence establishing TK’s negligence. Accordingly, genuine issues of material fact remain as to whether TK lacked knowledge of the hazard. III. Causation Finally, “[c]ausation is always an essential element in slip or trip and fall cases.” Pennington, 263 Ga. App. at 760, 589 S.E.2d at 8 The Court notes that TK was ten years old at the time of her accident. Therefore, she was only required to use “such care as [her] mental and physical capacities enable[d] [her] to exercise in the actual circumstances of the occasion and situation under investigation.” O.C.G.A. § 51-1-5. 11 261. “Where the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven.” Id., 589 S.E.2d at 261-62. “A mere possibility of causation is not enough” to prevail; the plaintiff must point to something other than speculation and conjecture. Id., 589 S.E.2d at 262. Georgia courts routinely find that summary adjudication in favor of the landowner is appropriate speculate as to what caused a fall. where the plaintiff can only These cases generally involve plaintiffs who were unable to identify the hazard that caused their fall. Id. at 758, 589 S.E.2d at 261 (“[Plaintiff] does not recall feeling his feet strike anything. He only recalls the ‘feeling of falling.’”); Moore v. Teague, 255 Ga. App. 220, 220-21, 564 S.E.2d 817, 819 (2002) (“Plaintiff fell in the defendant’s kitchen but does not know why her legs and feet did a split; she assumed that it was from the wet floor, but she did not actually know if the floor was wet.”); Shadburn v. Whitlow, 243 Ga. App. 555, 556, 533 S.E.2d 765, 767 (2000) (“[A]ll three ladies [including plaintiff] testified that they were not actually certain what caused [plaintiff] to fall.”); Avery, 239 Ga. App. at 644, 521 S.E.2d at 669 (“[Plaintiff] testified that she was not actually certain what caused her to fall.”); Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220, 511 S.E.2d 579, 580 (1999) (“When asked during her deposition if she knew 12 why she fell that day, [Plaintiff] responded, ‘No.’”); Hammonds v. Jackson, 132 Ga. App. 528, 533, 208 S.E.2d 366, 369 (1974) (“[Plaintiff’s] testimony was ‘this one spot was-must have been mighty slippery, heavy wax or something. I don’t know, but it sure tripped me.’”). The Court finds distinguishable from the circumstances those in the in the foregoing present line of case cases. Plaintiff’s evidence on causation, while certainly disputed, does not rise to the level of speculation such that her claim should be decided by a lone judge rather than a jury of her peers. Robinson, 268 Ga. at 748, 493 S.E.2d at 414 (“In sum, we remind members of the judiciary 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, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.”). Plaintiff has produced evidence from which a reasonable jury could conclude that a hazardous condition, existed when and where TK fell. “slippery and wet Butterfly Center”).) condition a wet and slippery floor, (TK Aff. ¶ 5 (stating there was a on the floor of the Cecil B. Day Further, Plaintiff produced evidence that TK’s pants were wet immediately after her fall. (PK Dep. 11:7 (“[TK’s] pants ¶ were wet (indicating).”); 13 TK Aff. 5.) From this, a reasonable jury could conclude that TK stepped on Defendant’s wet floor causing her pants to become wet and causing her fall. The Court decision in acknowledges Christopher that v. the Georgia Donna’s Court Country of Store Appeals appears superficially to support Defendant’s argument that Plaintiff cannot create a genuine issue of material fact on causation. There, the plaintiff alleged she slipped and fell on a greasy substance that she did not see in the defendants’ parking lot. S.E.2d at 580. 236 Ga. App. at 219, 511 The plaintiff admitted she did not know why she fell and the sole basis of her allegations was the fact that she noticed a greasy substance on her arms and clothing after her fall. Id. The Georgia Court of Appeals found that “the fact that [the plaintiff] noticed a greasy substance on her arms and clothing as she cleaned up is not sufficient to show that she slipped because of any such greasy substance.” the Court Id. at 220, 511 S.E.2d at 581. finds Christopher Upon closer examination, distinguishable. Here, Plaintiff produced evidence that TK stepped in a wet slippery area on the floor. fell. TK also noticed water on her pants immediately after she The location of the water on her pants is consistent with and supportive of her testimony that she fell on a wet slippery floor. The Court finds that the Georgia Supreme Court in Robinson intended for these issues to be resolved by a jury and not by summary adjudication. Accordingly, summary judgment is not appropriate. 14 CONCLUSION For the reasons discussed above, Defendant’s Motion for Summary Judgment (Doc. 35) is denied. IT IS SO ORDERED, this 18th day of June, 2010. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
