Reginald Bennett v. Metropolitan Atlanta

• Court: Court of Appeals of Georgia
• Decided: July 3, 2012
• Docket: A12A0158
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

July 3, 2012

In the Court of Appeals of Georgia A12A0158. BENNETT v. MARTA.

BARNES, Presiding Judge.

Reginald Bennett was assaulted in the Hamilton Holmes MARTA station and

sued MARTA for failing to keep its premises safe from reasonably foreseeable

unlawful acts. MARTA answered and denied liability, and following discovery,

moved for summary judgment, arguing that Bennett had equal or superior knowledge

of the danger and failed to exercise ordinary care for his own safety. The trial court

agreed and granted summary judgment to MARTA. After reviewing the record,

including the depositions of Bennett and the MARTA agent on duty, as well as video

recordings of the assault, we reverse.

“On appeal from the trial court’s grant of summary judgment, we conduct a de

novo review of the record to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact.”

Walker v. Aderhold Props., 303 Ga. App. 710 (694 SE2d 119) (2010). Summary

judgment is proper only when no issue of material fact exists, and the moving party

is entitled to judgment as a matter of law. Id. Generally, in premises liability cases,

to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant’s own actions or conditions under the defendant’s control.

(Footnote omitted.) American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444-445 (2)

(679 SE2d 25) (2009). See also OCGA § 51-3-1. Liability is these cases is based on

the landowner’s superior knowledge of perils on the property and the resultant danger

to visitors. Gateway Atlanta Apts. v. Harris, 290 Ga. App. 772, 774 (1) (660 SE2d

2 750) (2008). While a plaintiff who fails to exercise ordinary care for his safety may

be precluded from recovery even if the landowner has superior knowledge of the risk,

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 be resolved by trial in the ordinary manner. The 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.

Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997).

Bennett, who is five feet three inches tall, was a regular MARTA customer, and

on the night he was attacked, he asked a man in the elevator standing in front of him

with a backpack to move over a little. Another passenger began to scold Bennett and

the other man not to bump into her baby, and Bennett and the man told her they had

not been talking to her. The woman began cussing at them, and continued “ranting

and raving and carrying on” after they got off the elevator as Bennett headed toward

his bus. When the woman began threatening to “whip [Bennett’s] behind,” he

responded that she did not know him and was not going to whip him. Another man

on crutches who was with the woman “kind of picked up the slack where she left off

3 about what he was going to do,” and continued to threaten him. Bennett answered,

“[N]o, you’re not,” and continued toward his bus stop.

Bennett became concerned that the man was “rounding up his little troops

[from] all over the place,” and aware that the station had a gang problem, and

suddenly four additional men surrounded him, all threatening to “kick his MFA.”

Bennet observed to the man that he had a lot of friends, and a MARTA station agent,

whose job was to “look for safety issues” walked up, put his hands on Bennett’s

shoulder, and said, “[D]on’t worry about it. Don’t waste your time. You know, it ain’t

worth it.” The gang of men dispersed and Bennett went to wait for his bus at the loop.

The agent testified that the station was a “fast-paced environment” that

required video surveillance and a constant police presence nearby. Agents were

trained in “verbal judo” to control tense situations, and are supposed to contact a

police officer when a confrontation arises. A woman came up to him the night of this

incident and reported that a fight was about to occur by the elevator, and the agent

went to the area “because incidents happen all the time” and he was trained in conflict

resolution. His job was to control the situation, and his goal was “protection, not

confrontation.” When he arrived in the area he saw “six black males shouting at a

middle-aged, heavyset black male,” and he tried to use his radio to contact Central

4 Dispatch “to let them know what was going on,” but it did not work because his

battery was too low. He told the group to break it up and go their separate ways or

they would end up in jail, and several of the men agreed that the agent made sense.

“Everybody stopped” and started to walk away.

The station agent “wanted to make sure [he] verbally resolved the situation,”

because at that station, “you have a lot of situations.” He watched two of the men go

to one side of the loop to wait for a bus, Bennett go to the other side to wait for his

bus, and the other men walk off. The agent “was hoping they left” and because the

men waiting for their buses were far apart and the situation appeared to have

resolved, he returned to finish his lunch in the station office.

Bennett initially sat on the bench in the bus loop area that was furthest from the

station and began talking on his cell phone, then got up and walked to an area closer

to the station while he continued to talk. Two people walked by him and got on a bus

that was waiting just forward of where Bennett was standing, then seven more people

walked by. A woman sat on the bench just behind Bennett and another man sat on the

bench just ahead of him. After Bennett had been standing and talking on his phone

facing the station for almost four and a half minutes, two men approached him

quickly. One passed Bennett then immediately turned back toward him as the other

5 man stepped up and struck Bennett to the ground with enough force that he turned a

complete somersault. Bennett got up and retrieved the cell phone and backpack that

had been knocked from his hands as three more men approached quickly. Bennett

began to walk quickly toward the front of the waiting bus and the five men followed.

Bennett stopped and one of the men circled around and came straight at him, striking

him again.

The men milled around Bennett as yet another patron walked by the group, but

their actions are not clear from the recording because they are standing behind the bus

shelter that is roofed and enclosed with glass panels. The woman who sat down in the

shelter before the assault began remained seated during the incident while one of the

mob stood directly in front of her. Bennett moved away from the crowd, into view of

the security camera as an assailant struck him repeatedly, then moved back behind the

shelter as he absorbed more blows. Suddenly five more men ran into view and joined

the assault, and the mob moved down the sidewalk past the front of the waiting bus,

hitting and kicking Bennett as they moved. During the assault, Bennett yelled for

help. As he was on the ground, someone took money from his pocket and from his

bookbag. One of the assailants raised a crutch over his head and slammed it down

into Bennett’s body, then the mob suddenly turned and ran away.

6 Bennett staggered toward the closest bench and sat down, while the man and

woman sitting on nearby benches during the entire assault ignored him. About 45

seconds later, the bus that had been parked at the curb right next to the mob drove

away. Bennett began to use his cell phone to try to call for help, and the recording

showed him standing, sitting, standing, and finally walking into the street while he

looked back and forth. He finally walked off camera eleven minutes after the assault

began, and another camera showed him approach a police officer a few minutes later.

Bennett was taken to Grady Memorial Hospital, where he was admitted and treated

for a fractured orbital socket in his face, among other things.

The station agent testified that he always rechecks the area where a

confrontation occurs “to make sure it’s okay,” and in this case, after he returned the

station office to finish his lunch, he decided to recheck the area. The agent “stepped

back out” and “saw these guys running around.” He figured “something was going

on,” but he could not contact a dispatcher because he had forgotten to charge the

battery in his radio. The agent ran downstairs, saw Bennett on the ground, and waived

down a nearby police officer, who caught one of the suspects. The agent and officer

located and arrested other assailants who had been hiding in a bus.

7 MARTA argued it was entitled to summary judgment because Bennett had

superior knowledge of the danger he would be assaulted when he chose “to inject

himself into a volatile and potentially dangerous situation by arguing with people on

the elevator.” Bennett also knew the assailants remained in the station after the

MARTA agent broke up the verbal fight but “made no effort to see to his own safety

by either remaining where he was [waiting for the bus], calling the police, or

notifying another MARTA employee.” Instead, MARTA argued, Bennett chose to

walk toward the mob when they began to approach him, and thus failed to exercise

ordinary care to avoid the danger of being physically assaulted.

The trial court granted summary judgment to MARTA, concluding that as an

adult of ordinary intelligence, Bennett was “aware of the manifest risks of

deliberately and voluntarily engaging in a verbal altercation,” and then, seeing a

“mob” moving toward him, chose to walk toward them instead of calling for help.

The court held that MARTA was entitled to summary judgment because Bennett had

equal or superior knowledge of the danger posed by the people who had threatened

to harm him and failed to exercise ordinary care,.

8 Bennett argues that the trial court erred in granting MARTA’s motion for

summary judgment because the evidence establishes that questions of fact exist for

a jury to determine. We agree.

There is no evidence that Bennett chose to assume the risk that he would be

physically assaulted by a gang of ten or more men because he had words with a rude

woman and her companions on an elevator, or that he had superior knowledge that

the gang would assault him. To the contrary, he testified that he was not arguing with

them, just telling them that they were not going to “whup [his] ass” that day. Bennett

thought that the exchange was “just words being thrown out, you know, and that

didn’t bother me. It wasn’t [any]thing physical.” He did not think they were going to

do anything to him physically, which is why he kept moving away toward his bus

stop. He had heard “trash talk” all his life, and “never got assaulted from trash

talking, from having somebody talk trash to me and by me responding to trash talk.”

Further, the recording of the assault contained in the record establishes that

Bennett did not move toward the mob to confront the men instead of taking some

other evasive action. He had been waiting for his bus for six minutes before the

assault began, and for three and a half of those minutes he stood at the curb, talking

on his cell phone. During that time at least eight MARTA patrons walked by him, and

9 he stood by a MARTA bus whose driver was aboard the entire time. He saw men

gathering inside the station, in the area where the station agent worked, and looked

to see if they were coming toward him. By that time, the men had crossed the short

distance between the station and Bennett at a “trot run” and were “almost in [his]

face” immediately. He did not attempt to call 911 when he first saw them because he

thought that “at 46 years old trying to run around with a cell phone running from 17-

to-20 year old, . . . athletic-looking youths, I wouldn’t have made it.” Rather than try

to run away, which would have taken him away from the station, he tried to “cover

up” and protect himself as best he could, and as soon as they reached him, he “went

down . . . and everything was blurry and pitch-black by then.”

In contrast, the record contains evidence that MARTA had superior knowledge

that the men might escalate the confrontation. The MARTA agent testified that he

always rechecks the area where a confrontation occurred “to make sure it’s okay. It’s

not the first time.” Usually he stayed on location, but in this case he returned to his

office instead, which was a “nice walk” from the area, and then decided to go back

and check on the situation, but by that time the assault had already occurred.

Given these facts, none of the cases MARTA cites control. In one case the

plaintiff got out of his car to confront someone who spit at him and was struck when

10 he got back in. Rappernecker v. L.S.E., 236 Ga. App. 86 (510 SE2d 871) (1999). In

another, the decedent crossed the street to join a fight. Cornelius v. Morris Brown

College, 299 Ga. App. 83, 86 (681 SE2d 730) (2009) (“an adult of ordinary

intelligence will be held to be aware of manifest risk or danger of possible injury

when he deliberately and voluntarily joins in an affray, as a matter of law”). Another

plaintiff failed to exercise ordinary care by returning to his motel room after he had

a fight with his co-workers, who were attending a party at the hotel and who fought

with him again. Snellgrove v. Hyatt Corp., 277 Ga. App. 119 (625 SE2d 517) (2006).

Finally, a theater patron chose to confront an audience member who was cursing

instead of moving or seeking help. Fernandez v. Ga. Theater Co., 261 Ga. App. 892

(583 SE2d 926) (2003). Here, Bennett did not approach the men who had begun a

verbal altercation with him earlier, nor did he exchange any words with them before

they physically attacked him. He was standing at the bus stop, which is what he had

been told to do by the MARTA agent, and his options were limited by the time he saw

the men gathering in the station, in the area where the station agent had been. He

would have had to run away from the station to get away from them, and according

to him, he had no time to summon help on his cell phone. The bus driver was sitting

in the bus parked right beside him, and other patrons were in the vicinity.

11 “[T]he ‘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.” Dickerson v.

Guest Srvcs. Co. of Va., 282 Ga. 771, 771-772 (653 SE2d 699) (2007), citing

Robinson, 268 Ga. at 749. The evidence in this case is not plain, palpable, and

undisputed, and liability should be determined by a jury. The trial court therefore

erred in granting summary judgment to MARTA.

Judgment reversed. Adams and McFadden, JJ., concur.