Benefield v. Tominich

708 S.E.2d 563, 308 Ga. App. 605, 2011 Fulton County D. Rep. 1013, 2011 Ga. App. LEXIS 241
CourtCourt of Appeals of Georgia
DecidedMarch 22, 2011
DocketA10A2242
StatusPublished
Cited by70 cases

This text of 708 S.E.2d 563 (Benefield v. Tominich) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benefield v. Tominich, 708 S.E.2d 563, 308 Ga. App. 605, 2011 Fulton County D. Rep. 1013, 2011 Ga. App. LEXIS 241 (Ga. Ct. App. 2011).

Opinions

Dillard, Judge.

In this premises-liability action, Margaret Benefield sued April Marie Tominich, doing business as Taylor’s Gin Store (“TGS”), alleging that TGS breached a duty it owed her as an invitee when she tripped on a rubber mat outside of the entrance to the store and suffered injuries as a result. TGS filed a motion for summary judgment, which the trial court granted. Benefield now appeals, arguing that the trial court erred in finding that there existed no genuine issue of material fact as to whether TGS had superior knowledge of the hazard posed by the rubber mat. For the reasons set forth infra, we are constrained to reverse.

Viewed in the light most favorable to Benefield (i.e., the non-moving party),1 the record shows that on August 1, 2007 around noon, Benefield went to TGS—which operates as a gasoline station and a convenience store—to pick up a few groceries. After parking and exiting her vehicle, Benefield stepped onto an orange-colored rubber mat that had been laid across a rise in the pavement serving as a wheelchair ramp (leading up to the sidewalk). Although Bene-field was a frequent customer of TGS and had walked across this same rubber mat on numerous occasions, she, nevertheless, tripped [606]*606on a curled-up corner of the mat that afternoon and fell hard to the ground. As a result of her fall, she suffered abrasions and a broken wrist, and was unable to get back on her feet. Lying on the ground, Benefield cried out for help, but the sole TGS clerk working inside the store could not hear her pleas for assistance. Consequently, she did not receive assistance until another customer arrived at the store approximately 20 minutes later.

Thereafter, Benefield sued TGS to recover damages for the injuries she suffered as a result of her trip and fall on the rubber mat located outside the convenience store. TGS filed an answer, and discovery ensued. In her deposition testimony, Benefield acknowledged that the subject mat had been in place for several months and that she had walked over it on numerous occasions. However, she further testified—during her deposition and by affidavit—that because she was not looking down during her walk up to the store, she did not notice until after her fall that a corner of the mat had curled up, causing her to trip and fall. No employees of TGS were deposed, but both the store’s manager and its sole employee, who was on duty at the time of the accident, filed affidavits, averring that they had inspected the interior and exterior of the store, as well as the surrounding parking lot, for debris when the store opened in the morning, pursuant to a duty list that was distributed to all employees. The duty list, which was filed as an exhibit to both of the foregoing affidavits, directed that “[e]ach employee is responsible for keeping the store neat and tidy, inside and out, at all times,” as well as “[k]eeping the outside area free of debris (trash, cigarette butts, leaves, etc.).” Additionally, the store manager’s affidavit specifically averred that she inspected the subject rubber mat when the store opened on the morning of the accident and did not notice any curling of its corners.

After discovery concluded, TGS filed a motion for summary judgment, arguing that it could not be held liable for Benefield’s injuries because it had no constructive knowledge of the hazard posed by the rubber mat and because Benefield had equal or superior knowledge of the open and obvious hazard. Benefield filed a response, arguing that genuine issues of material fact remained as to whether TGS’s inspection procedures were reasonable and thus whether TGS had constructive knowledge of the hazard. The trial court concluded that TGS lacked superior knowledge of the hazard posed by the mat because it was open and obvious, and granted summary judgment in favor of TGS. This appeal follows.

1. In her sole enumeration of error, Benefield contends that the trial court erred in granting summary judgment in favor of TGS, arguing that genuine issues of material fact remain as to whether TGS lacked superior knowledge of the hazard posed by the rubber [607]*607mat that caused her to trip and fall. We agree.

The standards for summary adjudication are well settled. Summary judgment is proper “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.”2 A summary judgment enjoys “no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.”3 Indeed, in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with viewing the evidence, “and all reasonable conclusions and inferences drawn from the evidence . . . in the light most favorable to the nonmovant.”4

With regard to premises-liability cases, our Supreme Court has held that (1) “as a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication^] but should [instead] be resolved by trial in the ordinary manner”;5 and (2) “[t]he trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.”6 In practical terms,

this means that issues such as how closely a particular retailer should monitor its premises and approaches, what retailers should know about the property’s condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.7

And in Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe,8 which “includes inspecting the premises to discover possible dangerous conditions of which the [proprietor] does not have actual knowledge, and taking reasonable [608]*608precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.”9 Nevertheless, in order for a plaintiff to recover damages for injuries sustained in a slip-and-fall action, “an 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 or conditions within the control of the owner/occupier.”10 A plaintiffs evidentiary proof concerning the second prong of this test is not, however, “shouldered until the defendant [first] establishes negligence on the part of the plaintiff.”11 Finally, we have previously held that “ [floor mats subject to periodic folding, bunching, rolling, and shifting can constitute hazards for which landowners may be liable.”12 With the foregoing principles in mind, we now consider Benefield’s sole enumeration of error.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chittranjan Thakkar v. Naresh Parikh
Court of Appeals of Georgia, 2025
Terminal Investment Corporation v. Isaiah Johnson
Court of Appeals of Georgia, 2025
Ricardo Johnson v. Lt Energy, LLC
Court of Appeals of Georgia, 2023
Todd Campbell v. Courtesy Ford Inc.
Court of Appeals of Georgia, 2023
In Re Estate of Charles Darrell Henry
Court of Appeals of Georgia, 2023
CITY OF SANDERSVILLE v. TONYA BROOK USRY
Court of Appeals of Georgia, 2022
Jennifer Duncan v. Olga Rawls
Court of Appeals of Georgia, 2021
Joshua Brumbelow v. Jeannie Mathenia
Court of Appeals of Georgia, 2021
Rudy Aguila v. Kennestone Hospital, Inc.
Court of Appeals of Georgia, 2019
Pasha v. Battle Creek Homeowners Association, Inc.
829 S.E.2d 618 (Court of Appeals of Georgia, 2019)
MOATS Et Al. v. MENDEZ.
824 S.E.2d 808 (Court of Appeals of Georgia, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
708 S.E.2d 563, 308 Ga. App. 605, 2011 Fulton County D. Rep. 1013, 2011 Ga. App. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benefield-v-tominich-gactapp-2011.