BARTLETT v. McDONOUGH BEDDING COMPANY (2012)

Court of Appeals of Georgia.

BARTLETT et al. v. McDONOUGH BEDDING COMPANY.

No. A12A0392.

Decided: January 24, 2012

John H. Ridley Jr., for Bartlett et al. Marc Alan Avidano, McDonough, for McDonough Bedding Company.

Lynwood Bartlett, who was injured when he fell down stairs in a shop leased by McDonough Bedding Company (“McDonough”), brought this premises liability action against McDonough in the Superior Court of Henry County.¹ Following a hearing, the trial court granted McDonough's motion for summary judgment, and Bartlett appeals. Because the evidence of record establishes that Bartlett failed to exercise ordinary care for his own safety, we affirm.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law[.]” (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623(1)(a), 697 S.E.2d 779 (2010).² In moving for summary judgment, “a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party's case.” (Citation and punctuation omitted.) Id.

Summary judgments enjoy 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. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Id. at 624(1)(a), 697 S.E.2d 779.

So viewed, the record shows the following undisputed facts. On the afternoon of May 5, 2007, a sunny day, the Bartletts visited the McDonough Bedding Company, a bedding and antiques shop. At the back of the shop, a stairwell connected the main level to a lower level where there was a bookshop. The stairwell was bounded on one side by the rear wall and on the other side by a half-height wall. The stairwell was illuminated by ceiling fixtures and by natural light through windows at the top and bottom of the stairs.

By agreement between McDonough and the proprietor of the bookshop, no one was permitted to use the stairs to travel between the two floors. Cecelia Lawrence, who worked in the shop, deposed that, on the day at issue, there was a chain across the top of the stairs, attached to the end of the half wall and to the rear wall. Merchandise, including a small table, a chair, and a fireplace screen, was displayed around the landing area at the top of the stairs.

In his deposition, Bartlett testified that, as he was looking at merchandise, he took a step, his left foot went down into the stairwell, and he fell backwards. According to Bartlett, he was unaware of the stairwell's presence, despite lighting that was “sufficient” for viewing the merchandise in the landing area. When asked how he could have failed to see the stairwell, Bartlett deposed that merchandise on the floor in the landing area prevented him from seeing the stairs going down and that “things shouldn't have been covered up as well as they were[.]” In addition, he stated, “I was not looking for a stairway, so I didn't see one.” Sandra Bartlett, who did not see her husband fall, deposed that, as she walked into the landing area to go to his aid, she had no trouble seeing the stairs because she was watching where she was going rather than looking at merchandise. In addition, she deposed that the fireplace screen was before the landing and that she had to walk around it to get to the stairs.

Under Georgia law,

[a]n owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for any invitees. OCGA § 51–3–1. However, an owner or occupier of land is not an insurer of an invitee's safety. Rather, the basis of an owner/occupier's liability to an invitee injured on the premises is the owner/occupier's superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. On the other hand, an invitee must exercise ordinary care to avoid the consequences of any such negligence on the part of an owner/occupier, and the failure to do so bars an invitee's recovery against the owner/occupier. OCGA § 51–11–7[.] ․ It is incumbent upon the plaintiff to use the degree of care necessary under the circumstances to avoid injury to [himself or] herself. The reasonable selection of a route of travel is a part of the invitee's duty to exercise ordinary care for [his or] her own safety. While an invitee need not necessarily choose the safest course [through or] across the owner/occupier's property, where an invitee voluntarily departs from the route designated and maintained by the owner/occupier for the invitee's safety and convenience, the degree of caution required by the invitee's duty to exercise ordinary care for her own safety is heightened by any increased risk resulting from that choice. Under such conditions, the invitee assumes the risk of those hazards existent in the selected route where the conditions do not constitute a hazard when the traversed property is used for its intended purpose, unless the hazard is common to both areas or the owner has notice that the unauthorized route is being regularly used improperly.

(Citations and punctuation omitted.) Gaydos v. Grupe Real Estate Investors, 211 Ga.App. 811, 812–813, 440 S.E.2d 545 (1994). See Chamblee v. Grayco, Inc., 266 Ga.App. 154, 156, 596 S.E.2d 683 (2004) (noting the continuing applicability of the voluntary departure rule following the Supreme Court of Georgia's decision in Robinson v. Kroger Co., 268 Ga. 735, 493 S.E.2d 403 (1997)).

In this case, viewed in the light most favorable to Bartlett's contentions, the record shows that the static hazard³ which led to his injuries lay just behind an array of merchandise arranged on the floor so tightly that it completely concealed an opening in the floor of the dimensions of the stairwell. Despite his inability to see beyond the merchandise, however, Bartlett continued to move in that direction. His attempt to walk between or over the thick clutter of merchandise, where there was not an aisle or clear area of floor visible, constituted a voluntary departure from the route designated and maintained by McDonough for customers' safety and convenience and imposed a heightened duty of care for his own safety.⁴ Even if the opening to the stairwell was not visible from the direction Bartlett approached it, as he contends,

[he] was aware of that lack of visibility and should have exercised greater caution for [his] own safety. [Bartlett's] failure to react to the diminished visibility of the [floor] beyond the [merchandise], and conduct [himself] accordingly, itself constituted a failure to exercise ordinary care for [his] own safety. Consequently, [he] may not recover from [McDonough] for [his] injuries resulting from that static defect, and the trial court thus properly granted summary judgment for [McDonough].

(Emphasis in original.) Gaydos v. Grupe Real Estate Investors, 211 Ga.App. at 813–814, 440 S.E.2d 545. “Further, the sole distraction [Bartlett] asserts, looking [at merchandise], cannot be accepted under the distraction theory because that was the very activity that brought him to [McDonough].” Harper v. Kroger Co., 212 Ga.App. 570, 443 S.E.2d 7 (1994).⁵

Judgment affirmed.

ELLINGTON, Chief Judge.

PHIPPS, P.J., and DILLARD, J., concur.