SECOND DIVISION MILLER, P. J., MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
June 18, 2020
In the Court of Appeals of Georgia A20A0363. RICHEY et al. v. THE KROGER COMPANY et al.
MILLER, Presiding Judge.
This appeal involves the death of Joshua Ray Richey after he was shot in the
parking lot of a Kroger grocery store. The trial court granted summary judgment to
Kroger and Norred & Associates, Inc. (the company that provided Kroger with
security services), solely on the basis that recovery was barred as a matter of law
because Richey had voluntarily taken affirmative steps to leave a clear position of
safety and engage with a person who had entered his work truck without permission.
Richey’s surviving spouse appeals from the order, arguing that the trial court erred
in granting summary judgment. The single issue that we decide today is whether there
is a genuine issue of material fact regarding Richey’s exercise of ordinary care.
Having carefully considered the proper legal standards on summary judgment, as applied to the facts of this case, we determine that a jury, and not the courts, must
decide the question of Richey’s exercise of ordinary care. Accordingly, we reverse,
and this case is remanded to the trial court for further proceedings.
When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, this court conducts a de novo review of the law and the evidence.
(Citations omitted.) Habersham Venture, Ltd. v. Breedlove, 244 Ga. App. 407, 407-
408 (535 SE2d 788) (2000).
So viewed, the evidence shows that, as employees of RG Williams
Construction, Richey and a co-worker were clearing debris from a bridge on Kroger’s
property during daylight hours. Richey had driven his work truck to the Kroger
property and parked it in the lot. While the men worked, a black car parked next to
Richey’s truck, and a man exited the car, went into Richey’s truck, and sat in the
driver’s seat. Richey and his co-worker jumped from a retaining wall and ran toward
Richey’s truck. When Richey approached the truck, he knocked on or slapped the
driver’s seat window, and the man in the driver’s seat shot him through the window.
2 Richey died at the scene. Damarius Thompson was later convicted of Richey’s
murder and other offenses related to the incident.1
The appellant, individually, as the surviving spouse, and as the adminstratrix
of Richey’s estate, filed a lawsuit against Kroger and Norred & Associates. Richey
alleged that both defendants were negligent in numerous respects, including failing
to maintain, inspect, secure, patrol, and manage the premises; failing to warn of latent
dangers on the premises; and failing to “remediate a very long history of crime at this
property and others nearby.” Kroger filed a motion for summary judgment, arguing
in part that Richey chose to engage in combat and voluntarily joined an affray when
he approached Thompson and that Richey failed to exercise ordinary care when he
deliberately opted to leave a safe situation and run across the parking lot upon seeing
Thompson inside his vehicle. Norred & Associates also filed a motion for summary
1 The appellant argues that evidence from the criminal trial was not admissible for purposes of summary judgment. This issue was discussed at the summary judgment hearing, but the trial court did not rule on it. Therefore, we will not address the admissibility of such evidence in the first instance and instead “will consider only whether the record as we now find it . . . is enough to get [the appellant] past summary judgment.” Toyo Tire North America Mfg., Inc. v. Davis, 299 Ga. 155, 159- 161 (2) (787 SE2d 171) (2016) (urging caution about deciding questions of admissibility upon which a trial court has not ruled because “questions of admissibility generally are committed to the sound discretion of the trial courts”).
3 judgment, arguing, inter alia, that Richey had not exercised due care for his own
safety when he ran across the parking lot to confront Thompson.
After a hearing, the trial court granted summary judgment to Kroger and
Norred & Associates. The trial court determined that Richey had been in a position
of safety and had the opportunity to consider options such as calling the police before
he chose to leave his position of safety and engage the individual who had broken
into his truck, and thus Richey’s decision barred recovery as a matter of law. This
appeal followed.
1. The appellant argues that the trial court erred in granting summary judgment
to both defendants because Richey did not join an affray in returning to his truck and
there is a jury question regarding whether his actions were reasonable under the
circumstances. We determine that genuine issues of material fact exist regarding any
negligence by Richey and the grant of summary judgment was therefore error.
“There are four elements to any tort action: duty, breach, causation, and
damages.” (Citation omitted.) Millan v. Residence Inn By Marriott, Inc., 226 Ga. App.
826, 828 (487 SE2d 431) (1997). As relevant to the trial court’s order, two
contributory negligence defenses may bar a plaintiff’s right of recovery in a
negligence action. Garrett v. NationsBank, N.A. (South), 228 Ga. App. 114, 118 (491
4 SE2d 158) (1997). “First[,] the plaintiff must at all times use ordinary care for [his]
own safety; . . . and second, the plaintiff must use ordinary care to avoid the
consequences of the defendant’s negligence when it is apparent or when in the
exercise of ordinary care it should become apparent.” (Citation and punctuation
omitted.) Id. The issue of a plaintiff’s exercise of ordinary care for his own safety
“may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear
and palpable.” (Citation omitted.) Rappenecker v. L.S.E., Inc., 236 Ga. App. 86, 87
(510 SE2d 871) (1999). See also North DeKalb Little League, Inc. v. Holland, 119
Ga. App. 439, 439 (1) (168 SE2d 169) (1969) (“One who recklessly tests an observed
and clearly-obvious peril is guilty of a lack of ordinary care[.]”) (citation omitted).
The second defense, known as the avoidable consequences doctrine, “denies recovery
for any damages which could have been avoided by reasonable conduct on the part
of the plaintiff.” (Citation omitted.) R & R Insulation Servs., Inc. v. Royal Indem. Co.,
307 Ga. App. 419, 433 (6) (a) (705 SE2d 223) (2010). See OCGA § 51-11-7. As a
general proposition, however, these issues “should be resolved by trial in the ordinary
manner.” (Citation omitted.) Bennett v. MARTA, 316 Ga. App. 565, 566 (730 SE2d
52) (2012). Therefore, “[e]xcept in plain, palpable and undisputed cases where
reasonable minds cannot differ as to the conclusions to be reached,” the questions of
5 “lack of ordinary care for one’s own safety,” and “lack of ordinary care in avoiding
the consequences of another’s negligence . . .
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SECOND DIVISION MILLER, P. J., MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
June 18, 2020
In the Court of Appeals of Georgia A20A0363. RICHEY et al. v. THE KROGER COMPANY et al.
MILLER, Presiding Judge.
This appeal involves the death of Joshua Ray Richey after he was shot in the
parking lot of a Kroger grocery store. The trial court granted summary judgment to
Kroger and Norred & Associates, Inc. (the company that provided Kroger with
security services), solely on the basis that recovery was barred as a matter of law
because Richey had voluntarily taken affirmative steps to leave a clear position of
safety and engage with a person who had entered his work truck without permission.
Richey’s surviving spouse appeals from the order, arguing that the trial court erred
in granting summary judgment. The single issue that we decide today is whether there
is a genuine issue of material fact regarding Richey’s exercise of ordinary care.
Having carefully considered the proper legal standards on summary judgment, as applied to the facts of this case, we determine that a jury, and not the courts, must
decide the question of Richey’s exercise of ordinary care. Accordingly, we reverse,
and this case is remanded to the trial court for further proceedings.
When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, this court conducts a de novo review of the law and the evidence.
(Citations omitted.) Habersham Venture, Ltd. v. Breedlove, 244 Ga. App. 407, 407-
408 (535 SE2d 788) (2000).
So viewed, the evidence shows that, as employees of RG Williams
Construction, Richey and a co-worker were clearing debris from a bridge on Kroger’s
property during daylight hours. Richey had driven his work truck to the Kroger
property and parked it in the lot. While the men worked, a black car parked next to
Richey’s truck, and a man exited the car, went into Richey’s truck, and sat in the
driver’s seat. Richey and his co-worker jumped from a retaining wall and ran toward
Richey’s truck. When Richey approached the truck, he knocked on or slapped the
driver’s seat window, and the man in the driver’s seat shot him through the window.
2 Richey died at the scene. Damarius Thompson was later convicted of Richey’s
murder and other offenses related to the incident.1
The appellant, individually, as the surviving spouse, and as the adminstratrix
of Richey’s estate, filed a lawsuit against Kroger and Norred & Associates. Richey
alleged that both defendants were negligent in numerous respects, including failing
to maintain, inspect, secure, patrol, and manage the premises; failing to warn of latent
dangers on the premises; and failing to “remediate a very long history of crime at this
property and others nearby.” Kroger filed a motion for summary judgment, arguing
in part that Richey chose to engage in combat and voluntarily joined an affray when
he approached Thompson and that Richey failed to exercise ordinary care when he
deliberately opted to leave a safe situation and run across the parking lot upon seeing
Thompson inside his vehicle. Norred & Associates also filed a motion for summary
1 The appellant argues that evidence from the criminal trial was not admissible for purposes of summary judgment. This issue was discussed at the summary judgment hearing, but the trial court did not rule on it. Therefore, we will not address the admissibility of such evidence in the first instance and instead “will consider only whether the record as we now find it . . . is enough to get [the appellant] past summary judgment.” Toyo Tire North America Mfg., Inc. v. Davis, 299 Ga. 155, 159- 161 (2) (787 SE2d 171) (2016) (urging caution about deciding questions of admissibility upon which a trial court has not ruled because “questions of admissibility generally are committed to the sound discretion of the trial courts”).
3 judgment, arguing, inter alia, that Richey had not exercised due care for his own
safety when he ran across the parking lot to confront Thompson.
After a hearing, the trial court granted summary judgment to Kroger and
Norred & Associates. The trial court determined that Richey had been in a position
of safety and had the opportunity to consider options such as calling the police before
he chose to leave his position of safety and engage the individual who had broken
into his truck, and thus Richey’s decision barred recovery as a matter of law. This
appeal followed.
1. The appellant argues that the trial court erred in granting summary judgment
to both defendants because Richey did not join an affray in returning to his truck and
there is a jury question regarding whether his actions were reasonable under the
circumstances. We determine that genuine issues of material fact exist regarding any
negligence by Richey and the grant of summary judgment was therefore error.
“There are four elements to any tort action: duty, breach, causation, and
damages.” (Citation omitted.) Millan v. Residence Inn By Marriott, Inc., 226 Ga. App.
826, 828 (487 SE2d 431) (1997). As relevant to the trial court’s order, two
contributory negligence defenses may bar a plaintiff’s right of recovery in a
negligence action. Garrett v. NationsBank, N.A. (South), 228 Ga. App. 114, 118 (491
4 SE2d 158) (1997). “First[,] the plaintiff must at all times use ordinary care for [his]
own safety; . . . and second, the plaintiff must use ordinary care to avoid the
consequences of the defendant’s negligence when it is apparent or when in the
exercise of ordinary care it should become apparent.” (Citation and punctuation
omitted.) Id. The issue of a plaintiff’s exercise of ordinary care for his own safety
“may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear
and palpable.” (Citation omitted.) Rappenecker v. L.S.E., Inc., 236 Ga. App. 86, 87
(510 SE2d 871) (1999). See also North DeKalb Little League, Inc. v. Holland, 119
Ga. App. 439, 439 (1) (168 SE2d 169) (1969) (“One who recklessly tests an observed
and clearly-obvious peril is guilty of a lack of ordinary care[.]”) (citation omitted).
The second defense, known as the avoidable consequences doctrine, “denies recovery
for any damages which could have been avoided by reasonable conduct on the part
of the plaintiff.” (Citation omitted.) R & R Insulation Servs., Inc. v. Royal Indem. Co.,
307 Ga. App. 419, 433 (6) (a) (705 SE2d 223) (2010). See OCGA § 51-11-7. As a
general proposition, however, these issues “should be resolved by trial in the ordinary
manner.” (Citation omitted.) Bennett v. MARTA, 316 Ga. App. 565, 566 (730 SE2d
52) (2012). Therefore, “[e]xcept in plain, palpable and undisputed cases where
reasonable minds cannot differ as to the conclusions to be reached,” the questions of
5 “lack of ordinary care for one’s own safety,” and “lack of ordinary care in avoiding
the consequences of another’s negligence . . . are for the jury.” (Citation omitted;
emphasis supplied.) McCray v. FedEx Ground Package System, Inc., 291 Ga. App.
317, 322 (1) (661 SE2d 691) (2008).
When the evidence is construed most favorably toward the appellant, as it must
be, “[w]e cannot find, as a matter of law, that no prudent person would have acted as
[Richey] did under the circumstances.” (Emphasis supplied.) McCray, supra, 291 Ga.
App. at 322. Similarly, we cannot say that Richey tested “an observed and
clearly-obvious peril,” such that he lacked ordinary care for his safety as a matter of
law.2
First, there is no evidence in the record that Richey saw Thomson with a
weapon or otherwise observed or knew that he was armed. Second, while we can
glean that Richey ran toward Thompson after seeing him inside his truck without
permission, Richey did not inject himself into an ongoing fight or situation which was
violent, combative, or assaultive, such that he had a clear and palpable knowledge
2 We note that although Kroger references the Supreme Court of Georgia’s decision in Lowry v. Atlanta Joint Terminals, 145 Ga. 782 (89 SE 832) (1916), in which the plaintiff was injured by a car thief, the Supreme Court in that case determined that the plaintiff could not recover because he had assumed the risk of his job as a railroad detective. Id. at 783. That holding is therefore inapplicable here.
6 of the risk of being physically harmed. Compare Habersham Venture v. Breedlove,
244 Ga. App. 407, 410 (4) (535 SE2d 788) (2000) (plaintiff “voluntarily chose to
enter into mutual combat with the assailants”); Fagan v. Atnalta, Inc., 189 Ga. App.
460, 460-461 (376 SE2d 204) (1988) (plaintiff at a bar “thrust himself into the melee”
after a man grabbed a bartender by the collar); Rappenecker, supra, 236 Ga. App. at
87-88 (1) (plaintiff injected himself into a volatile situation by confronting a person
who blocked his path and spit at him and also conceded that he had probably acted
in a manner calculated to put him in a precarious situation); Cornelius v. Morris
Brown College, 299 Ga. App. 83, 86 (3) (681 SE2d 730) (2009) (plaintiff joined a
fight already begun). Third, the record does not show that Richey had any prior
interaction or familiarity with Thompson which would have revealed that Thompson
intended to harm him, and we have no evidence whatsoever that Richey approached
Thompson amidst a fear of Thompson being violent toward him. Compare Snellgrove
v. Hyatt Corp., 277 Ga. App. 119, 124 (3) (625 SE2d 517) (2006) (“clear and
palpable evidence show[ed] that [the plaintiff] was aware of [the combatant’s]
intention to cause him harm based on their first altercation outside of the front
entrance” of the hotel); Fernandez v. Georgia Theatre Co. II, 261 Ga. App. 892, 892
(583 SE2d 926) (2003) (despite fearing violence from his attacker, plaintiff
7 confronted man who was cursing loudly).3 Lastly, while we recognize that Richey left
a place of relative safety when he ran toward his truck, given the facts above he did
not voluntarily assume a position of imminent danger of being murdered, so as to lead
us to the conclusion that recovery is barred as a matter of law. See Shuman v.
Mashburn, 137 Ga. App. 231, 235 (3) (223 SE2d 268) (1976) (explaining that a
person who is injured by voluntarily assuming a position of “imminent” danger when
there is an accessible place of safety cannot recover against a negligent party). See
also Swope v. Greenbriar Mall Ltd. Partnership, 329 Ga. App. 460, 461-462 (1) (765
SE2d 396) (2014) (describing the danger as “imminent” where the plaintiff
deliberately put himself in a robber’s line of fire to act as a shield).
To be sure, there may be a risk in approaching an intruder into one’s car. But
the operative question before us is whether this is such a plain, palpable, and
undisputable case, that the issue of ordinary care should be withheld from the jury
outright. This is not such a case. As the Supreme Court of Georgia held decades ago,
3 While Norred & Associates claims that Richey saw Thompson breaking into his vehicle and voluntarily confronted “a known criminal,” there is no telling from the record whether Richey saw Thompson as he was breaking into the truck or whether he only observed Thompson sitting in the driver’s seat of the truck. We therefore cannot say definitively that Richey had observed Thompson using force before deciding to confront him.
8 “[e]ven where there is no dispute as to the facts, it is . . . usually for the jury to say
whether the conduct in question met the standard of the reasonable man.” Ellington
v. Tolar Const. Co., 237 Ga. 235, 237 (II) (227 SE2d 336) (1976). And a reasonable
jury could conclude that because Richey did not see Thompson armed; did not
knowingly insert himself into an existing altercation; had no previous contact with
Thompson or knowledge that Thompson intended harm; and did not inject himself
into imminent danger, Richey did not fail to exercise ordinary care in approaching the
truck. Because a reasonable jury could arrive at this conclusion after taking into
account all the circumstances existing at the time, the summary adjudication of this
case would usurp the province of the jury. See, e.g., Brown v. All-Tech Inv. Group,
Inc., 265 Ga. App. 889, 896 (1) (595 SE2d 517) (2003) (affirming the trial court’s
grant of summary judgment because “no reasonable jury” could find in the plaintiff’s
favor on the issue of proximate cause); Pique v. Lee, 218 Ga. App. 357, 358 (461
SE2d 302) (1995) (“[N]either the presence nor absence of negligence should be
summarily adjudicated, but should be resolved by the trier of facts unless only one
conclusion is permissible.”). The evidence as to Richey’s own negligence, if any, is
not plain, palpable, and undisputable, and therefore this issue should be determined
9 by a jury. Accordingly, the trial court erred in granting summary judgment to Kroger
and Norred & Associates.
2. Kroger and Norred & Associates urge the Court to nevertheless affirm the
trial court’s grant of summary judgment on various other grounds, including
assumption of the risk and proximate cause. Kroger also argues that the appellant’s
claims for negligence per se, negligent training and supervision, failure to warn, loss
of consortium, attorney fees, and punitive damages all fail. Separately, Norred &
Associates claims that it is not liable to the appellant because Richey was not a third-
party beneficiary of its contract with Kroger and Norred & Associates neither owed
nor breached any duty to Richey under its contract. Norred & Associates also
advances its own arguments regarding the merits of the appellant’s claims for attorney
fees and punitive damages. We decline to affirm the trial court’s judgment based on
any of these arguments or otherwise consider them.
The trial court granted summary judgment to both Kroger and Norred &
Associates solely on the basis of Richey’s exercise of ordinary care. While this Court
periodically affirms a trial court’s grant of summary judgment as “right for any
reason,” our Supreme Court has characterized the application of this rule as
discretionary. Kammerer Real Estate Holdings, LLC v. Forsyth County Bd. of
10 Commrs., 302 Ga. 284, 285 (1) n.2 (806 SE2d 561) (2017). Further, “the tenant that
the appellate courts do not rule on issues not ruled on by the trial courts preserves the
appellate courts’ jurisdiction and delineates the proper roles of the courts.” (Citation
and punctuation omitted.) Maynard v. Snapchat, Inc., 346 Ga. App. 131, 137 (2) (816
SE2d 77) (2018). Given that the parties have presented multiple and separate grounds
for summary judgment, many of which were stridently contested below, we decline
to address the additional arguments which Kroger and Norred & Associates raise on
appeal. See Archer Forestry, LLC v. Dolatowski, 331 Ga. App. 676, 681 (4) (771
SE2d 378) (2015) (declining to affirm the grant of summary judgment on the
alternative ground that the plaintiff’s alleged negligence barred recovery though this
argument was raised below). See also Maynard, supra, 346 Ga. App. at 137 (2)
(declining to apply the right-for-any-reason rule where the arguments raised were
“hotly contested below and require[d] a review of issues within the trial court’s
discretion”). Accordingly, we reverse the trial court’s grant of summary judgment to
Kroger and Norred & Associates and we remand this case to the trial court so that it
may address the remaining grounds advanced by the parties.
Judgment reversed and case remanded. Mercier and Coomer, JJ., concur.