Warner v. Hobby Lobby Stores, Inc.

741 S.E.2d 270, 321 Ga. App. 121, 2013 Fulton County D. Rep. 1299, 2013 WL 1277821, 2013 Ga. App. LEXIS 329
CourtCourt of Appeals of Georgia
DecidedMarch 29, 2013
DocketA12A2453
StatusPublished
Cited by9 cases

This text of 741 S.E.2d 270 (Warner v. Hobby Lobby Stores, Inc.) 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.

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Warner v. Hobby Lobby Stores, Inc., 741 S.E.2d 270, 321 Ga. App. 121, 2013 Fulton County D. Rep. 1299, 2013 WL 1277821, 2013 Ga. App. LEXIS 329 (Ga. Ct. App. 2013).

Opinion

Branch, Judge.

After she was injured by merchandise falling from a shelf in a Gwinnett County Hobby Lobby store, Dawn Evette Warner filed the current action against Hobby Lobby Stores, Inc., alleging that her injuries resulted from the store’s negligence in failing to properly install, inspect, or stock its shelving units. She now appeals from an order granting summary judgment against her and in favor of Hobby Lobby, arguing that there exists a genuine issue of fact as to whether Hobby Lobby had actual or constructive knowledge of the hazardous condition that caused her injuries. We disagree and affirm.

To prevail on a motion for summary judgment

the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial the defendant may show that [it] is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citation and punctuation omitted.) Beale v. O’Shea, 319 Ga. App. 1, 2 (735 SE2d 29) (2012). On an appeal from the grant or denial of a motion for summary judgment, we review the record de novo, construing the evidence in the light most favorable to the nonmovant. Samuels v. CBOCS, Inc., 319 Ga. App. 421, 422 (742 SE2d 141) (2012).

Construed in the light most favorable to Warner, as the nonmovant, the record shows that on September 24, 2008, Warner was shopping in a local Hobby Lobby. While in the store, Warner decided to look at some “white boards,” also known as dry-erase boards, that were on sale. The white boards were located on an end cap, which is a display unit located at the end of an aisle. This particular end cap was made of peg board, and the white boards rested inside a set of curved brackets mounted on the peg board. The brackets were attached to either end of a long piece of metal (“the bracket piece”), and welded to the back of each bracket was a flat metal piece, referred [122]*122to as the bracket joint. The joints attached to the peg board, holding the brackets and the bracket piece in place.

Warner decided to purchase a white board, and so she reached with both hands and took hold of the board closest to her. Warner testified that as she began to lift the board out of the brackets, the “shelving gave way,” and all five of the white boards in the brackets fell toward her and onto the floor. As the boards fell, the one in Warner’s hands came forward and hit her head and then her legs; two other boards fell and hit her hands. As a result of the incident, Warner suffered a fracture of, and other injuries to, her left hand.

A Hobby Lobby employee, later identified as Valerie Hopkins,1 came to Warner’s assistance. Warner testified at her deposition that Hopkins inspected the brackets immediately after the incident and told Warner that the brackets were misaligned, because the two bracket joints had not been placed in peg holes that were on the same level; rather, one bracket joint was situated in a peg hole that was located one peg hole above the opposite bracket joint. Warner further stated that both she and Hopkins could see that the left bracket joint had separated from the bracket itself, and that the joint was rusted.

In response to questions, Warner stated that before she reached for the white board she stood in front of the end cap and looked at the price, which was posted on one of the brackets. At that time, all of the white boards in the brackets were standing straight up and were perpendicular to the floor, and there did not appear to be anything wrong with either the peg board or the brackets.

Wendy Cochran was the store manager at the time of the incident and was still the store manager in September 2011, when she was deposed. Cochran testified that the store’s shelving, including all brackets that held merchandise, are inspected regularly. She explained that all brackets were inspected before being installed on an end cap, and any that appeared damaged, worn, or otherwise not in good working condition were thrown away. After installation, all brackets were inspected at least once a week. Specifically, Cochran testified that all brackets were inspected every Monday, when store employees counted merchandise to determine what, if any, replacement stock needed to be ordered. Additionally, brackets would be inspected again as merchandise was restocked, and white boards were restocked every week, as they were a popular product. According to Cochran, the brackets at issue would have been inspected only hours before the incident involving Warner, which occurred at around lunchtime on a [123]*123Wednesday. She knew this because the store received deliveries of new stock every Wednesday morning, and employees restocked the shelves on those mornings, before the store opened. Cochran also explained that because of the way in which the bracket had broken (by separating from the joint), the break would have been visible to anyone who passed by the left side of the end cap. And because this end cap was located across from the stock room, she had passed it a number of times on the day of the incident.

Additionally, Cochran stated that the broken bracket was not rusted and that the brackets were not misaligned. She also testified that there had not been any other incidents at the store involving brackets or shelving breaking or involving items falling from shelves or brackets.

Immediately after the incident, Cochran took the bracket piece (which contained the broken bracket) to her office, where she kept it until she gave it to the lawyer for Hobby Lobby. The bracket piece was produced for inspection at Cochran’s deposition, and she testified that it was in the same condition as it was on the day of the accident.

Following the close of discovery, Hobby Lobby moved for summary judgment on the grounds that the store had no superior knowledge of any dangerous condition that existed on its premises. The trial court held a hearing on that motion, at which time it inspected the bracket piece. At that hearing, Warner’s attorney acknowledged that the broken bracket on the bracket piece in the custody of Hobby Lobby’s attorney was “not rusted. It looks like the weld has popped.” But he argued that because there were no pictures of the bracket piece taken immediately after the incident, there was no way of telling whether the bracket piece produced at Cochran’s deposition and at the hearing was, in fact, the bracket piece involved in Warner’s injury.

The trial court granted Hobby Lobby’s motion for summary judgment, and this appeal followed.

To prevail in a premises liability action, a plaintiff must show: (i) the existence of a defective or hazardous condition on the premises; (ii) that the defendant had either actual or constructive knowledge of this condition; and (iii) that the plaintiff had no knowledge of the condition, despite the exercise of ordinary care. See Mucyo v. Publix Super Markets, 301 Ga. App. 599, 600 (688 SE2d 372) (2009); Cook v. Home Depot, 214 Ga. App.

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741 S.E.2d 270, 321 Ga. App. 121, 2013 Fulton County D. Rep. 1299, 2013 WL 1277821, 2013 Ga. App. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-hobby-lobby-stores-inc-gactapp-2013.