Houston v. Wal-Mart Stores East, L.P.

749 S.E.2d 400, 324 Ga. App. 105, 2013 Fulton County D. Rep. 3104, 2013 WL 5477840, 2013 Ga. App. LEXIS 805
CourtCourt of Appeals of Georgia
DecidedOctober 3, 2013
DocketA13A1525
StatusPublished
Cited by6 cases

This text of 749 S.E.2d 400 (Houston v. Wal-Mart Stores East, L.P.) 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
Houston v. Wal-Mart Stores East, L.P., 749 S.E.2d 400, 324 Ga. App. 105, 2013 Fulton County D. Rep. 3104, 2013 WL 5477840, 2013 Ga. App. LEXIS 805 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

In this slip-and-fall premises liability case, plaintiff Ronald Houston appeals the trial court’s grant of summary judgment in favor of defendant Wal-Mart Stores East, L.P., and two of its employees, defendants Dawn Atkins and Tim Holt. Because the uncontroverted evidence shows that Houston had equal knowledge of the hazard that caused his fall, the trial court did not err in granting summary judgment to the defendants.

Summary judgment is proper if the pleadings and evidence “show that there is no genuine issue as to any material fact and that [106]*106the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). We review the grant of summary judgment de novo and view the evidence in the light most favorable to the nonmovant. Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

So viewed, the record reflects that at approximately 5:14 a.m. on September 18, 2009, Houston was shopping at a Wal-Mart store in Morrow, Georgia. While pushing his shopping cart through the meat section of the grocery department, Houston walked across some flattened cardboard boxes that had been left on the floor by an employee who had been restocking shelves earlier that morning. Seconds after walking across the flattened boxes, Houston turned around without his cart and began walking back over the same boxes on his way to the other side of a freezer. As he did so, Houston slipped on the boxes and fell to the ground, injuring himself.

Houston subsequently brought this premises liability action against Wal-Mart and two of its two employees, Atkins and Holt, who had been working at the store on the morning of the incident. Following discovery, the defendants moved for summary judgment. The slip-and-fall incident had been captured by one of the store’s security cameras, and the defendants relied upon a DVD recording of the camera footage and screenshots taken from the footage to support their motion. The defendants also relied upon Houston’s deposition testimony in which he admitted that he had seen the flattened cardboard boxes lying on the floor, that he had walked across the boxes once without incident, and that he slipped and fell on the same boxes as he walked back over them.1

After reviewing the record and hearing oral argument from the parties, the trial court granted summary judgment in favor of the defendants, concluding that the uncontroverted evidence showed that Houston had equal knowledge of the hazard — i.e., the flattened cardboard boxes lying on the store floor — that had caused his fall. The trial court further concluded that there was no evidence that either Atkins or Holt caused or contributed to Houston’s accident. This appeal followed.

[107]*1071. We conclude that the trial court committed no error in granting summary judgment to the defendants on the ground that Houston had equal knowledge of the hazard that caused his fall.

An owner or occupier of land must exercise ordinary care to keep his premises safe for invitees. See OCGA § 51-3-1; American Multi-Cinema v. Brown, 285 Ga. 442, 447 (3) (679 SE2d 25) (2009). To prove negligence in a slip-and-fall premises liability case,

a plaintiff must show 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. However, the plaintiff’s evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. 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.) LeCroy v. Bragg, 319 Ga. App. 884, 885 (1) (739 SE2d 1) (2013). See Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

While there was evidence that Wal-Mart had actual or constructive knowledge of the flattened cardboard boxes on the floor, the uncontroverted evidence shows “plainly, palpably, and without dispute” that Houston had equal knowledge of the presence of the boxes before he slipped and fell on them. As previously noted, during his deposition, Houston admitted that he had seen the boxes on the floor, walked across the boxes once without any problem, and then slipped and fell on the boxes when he chose to walk back over them to get to the other side of a freezer.2 The DVD recording and screenshots of the [108]*108incident confirm this version of events. In light of this uncontradicted evidence, we conclude that Houston had as much knowledge of the hazard that caused his injuries as the defendants, and thus he cannot recover. See Barnes v. Morganton Baptist Assn., 306 Ga. App. 755, 757-758 (1) (703 SE2d 359) (2010) (affirming grant of summary-judgment to defendants, where evidence showed that plaintiff was aware of retaining wall and drop-off before choosing to ride bicycle near it); Right Stuff Food Stores v. Gilchrist, 279 Ga. App. 784, 786 (632 SE2d 405) (2006) (reversing denial of summary judgment to defendant, where evidence showed that plaintiff saw gas pump on ground before deciding to walk by it). See generally Ponder v. Brooks, 256 Ga. App. 596, 597-598 (569 SE2d 267) (2002) (“If an invitee knows of the condition or hazard, he has as much knowledge as the proprietor does[,] and then by voluntarily acting in view of his knowledge, he assumes the risks and dangers incident to the known condition.”) (citation and punctuation omitted).3

Houston nevertheless contends that summary judgment was inappropriate because even though he saw the boxes lying on the floor, he “did not appreciate the hazard presented by the boxes.” But this is not a case where the specific hazard that caused the plaintiff’s injury was hidden or outside the realm of an ordinary person’s understanding. Rather, large, flattened cardboard boxes in plain and unobstructed view on a store floor are items “which any person with ordinary, common sense would recognize as something that might cause a person to trip, slip, or fall.” (Punctuation and footnote omitted.) Music v. Steamco, Inc., 265 Ga. App. 185, 186 (593 SE2d 370) (2004) (ordinary person would recognize that standing water in plain view might cause a person to slip and fall). See also Landings Assn. v. Williams, 291 Ga. 397, 399-400 (728 SE2d 577) (2012) (ordinary person who had seen small alligators living in and around [109]*109lagoon in residential community would recognize risk of larger alligators being present and moving from one lagoon to another); Means v. Marshalls of MA., 243 Ga. App. 419, 420-421 (1) (532 SE2d 740) (2000) (physical precedent only) (ordinary person would recognize risk of slipping and falling on “garment debris in plain view on a dressing room floor”). In fact, in Capes v.

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749 S.E.2d 400, 324 Ga. App. 105, 2013 Fulton County D. Rep. 3104, 2013 WL 5477840, 2013 Ga. App. LEXIS 805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-v-wal-mart-stores-east-lp-gactapp-2013.