Fitzpatrick v. Hyatt Corporation ( 2015 )


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  •                                THIRD DIVISION
    ELLINGTON, P. J.,
    DILLARD 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.
    http://www.gaappeals.us/rules
    November 4, 2015
    In the Court of Appeals of Georgia
    A15A0943. FITZPATRICK v. HYATT CORPORATION.
    MCFADDEN, Judge.
    Kimberly Fitzpatrick filed this premises liability action to recover for injuries
    she sustained when she fell off a stage at a conference she was attending at the Hyatt
    Regency in Savannah. The trial court granted Hyatt summary judgment. On appeal,
    Fitzpatrick argues that whether Hyatt knew of the stage’s unsafe configuration and
    whether Fitzpatrick exercised ordinary care for her own safety are questions of fact
    that preclude summary judgment. She also argues that the trial court erred in applying
    a “heightened sense of awareness” standard of care. Finally she argues that the trial
    court erred by failing to consider whether Hyatt had a duty to install railings or other
    safety measures when assembling the stage. We agree with Fitzpatrick that whether
    Hyatt knew of the stage’s unsafe configuration and whether Fitzpatrick exercised
    ordinary care for her own safety are fact questions. Accordingly, we reverse Hyatt’s
    grant of summary judgment. We reject Fitzpatrick’s other arguments.
    1.     Facts.
    In order to survive a defendant’s summary judgment motion,
    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.
    American Multi-Cinema v. Brown, 
    285 Ga. 442
    , 444-445 (2) (679 SE2d 25) (2009).
    (citation omitted).
    Viewed in a light most favorable to Fitzpatrick, the evidence shows that she
    injured herself while attending a conference of the Southern Early Childhood
    Association at the Hyatt Regency in Savannah. One of the sessions at the conference
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    featured an entertainer, Don Monopoli, who invited audience members up on the
    stage. Fitzpatrick volunteered and climbed the stage. She was listening to the
    entertainer, facing outward toward the audience, when another woman began to leave
    the stage. Fitzpatrick stepped back to allow the other woman to pass and fell off the
    stage, injuring her neck and upper back.
    The stage was two feet high. At the time of Fitzpatrick’s fall, the stage was
    configured as a rectangle with a rectangular-shaped area cut out of the back corner.
    Fitzpatrick was standing directly in front of the cutout section and fell when she
    stepped backward into the area where there was no stage. Marquis Dillard, the Hyatt’s
    banquet manager, and other Hyatt employees assembled the stage in the hotel
    ballroom using components called risers. They set up the stage as a rectangle using
    the modular risers. At some point, Don Monopoli, the entertainer, asked to have the
    stage split into two smaller stages, and Dillard did so. But Dillard testified that he did
    not configure the stage to have the cutout section in the back. He also testified that
    as banquet manager, he would have been notified had another Hyatt employee
    changed the configuration, but he was never alerted that any changes had been made.
    When shown a drawing of the stage as described by Fitzpatrick – the rectangle with
    the rectangular cutout – he testified that it was possible to configure the stage into
    3
    that shape, but they would never configure a stage to leave a gap in the back because
    it was unsafe; they always squared off the risers to be even on all sides. Monopoli, the
    entertainer, did not remember how the stage was configured, but he did not personally
    change the configuration nor did he recall whether he asked anyone to change it.
    2. Questions of fact.
    To recover for injuries sustained in a fall, “[t]he plaintiff must plead and prove
    that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the
    plaintiff, despite exercising ordinary care for his or her own personal safety, lacked
    knowledge of the hazard due to the defendant’s actions or to conditions under the
    defendant’s control.” American Multi-Cinema v. Brown, 
    285 Ga. at 444
     (2).
    (a) Hyatt’s knowledge.
    Hyatt argues that the evidence establishes that it did not have superior
    knowledge of the hazardous configuration because it did not set up the stage in the
    configuration alleged by Fitzpatrick. It relies on the testimony of Dillard, the banquet
    manager, that he did not construct the stage in its unsafe configuration and that he
    would have been notified had another Hyatt employee done so. That evidence goes
    to Hyatt’s actual knowledge of the hazard, and Fitzpatrick has not come forward with
    direct evidence to create a fact question on the issue of Hyatt’s actual knowledge.
    4
    However, Fitzpatrick has presented some evidence from which a factfinder could
    conclude that Hyatt had constructive knowledge of the hazard.
    To show Hyatt’s constructive knowledge, Fitzpatrick could
    show[ either] that an employee was positioned in the immediate vicinity
    and had the opportunity and means to discover and remove the hazard
    . . . [or] that the alleged hazard was present for such a length of time that
    it would have been discovered had the proprietor exercised reasonable
    care in inspecting the premises.
    Osman v. Olde Plantation Apartments, 
    270 Ga. App. 627
    , 631 (1) (607 SE2d 236)
    (2004) (citation and punctuation omitted).
    Here, Dillard’s uncontradicted testimony established that he did not configure
    the stage to have the cutout section in the back. But it is likewise undisputed that at
    the time of Fitzpatrick’s fall, the stage was configured as a rectangle with a
    rectangular-shaped area cut out of the back corner. Hyatt, through Dillard’s
    testimony, acknowledged that this configuration was unsafe. There is no evidence
    explaining who reconfigured the stage or when it was reconfigured. Fitzpatrick
    presented evidence that Hyatt employees set up the sound system on the stage and
    that she fell after the session had begun, after Monopoli had sung several songs, after
    the volunteers had sung, and after Monopoli had begun telling a story, all while the
    5
    stage was set up in the hazardous configuration. From this evidence a factfinder could
    conclude that Hyatt had the means and opportunity to discover and remedy the
    hazardous configuration, or would have discovered the hazardous configuration had
    it exercised reasonable care in inspecting the premises and stage. See Smith v. Tenet
    HealthSystem Spalding, 
    327 Ga. App. 878
    , 881 (2) (761 SE2d 409) (2014). Hyatt, as
    the movant on summary judgment, failed to negate this theory of liability. See
    Thompson v. Regency Mall Assoc., 
    209 Ga. App. 1
    , 4 (1) (432 SE2d 230) (1993).
    (b) Fitzpatrick’s exercise of reasonable care for her own safety.
    Fitzpatrick argues that whether she exercised reasonable care for her own
    safety is a question for jury resolution. We agree. “[H]ow vigilant patrons must be for
    their own safety in various settings, and where customers should be held responsible
    for looking or not looking are all questions that, in general, must be answered by
    juries as a matter of fact rather than by judges as a matter of law.” American Mutli-
    Cinema, 
    285 Ga. at 445
     (2).
    Fitzpatrick testified that it was possible that had she looked “way back to [her]
    left,” she might have seen the cutout section through which she fell, but on the stage
    was a table with musical equipment that blocked her peripheral view to her left. Had
    she looked to her right, she would not have seen the cutout section because there was
    6
    no cutout section on that side; instead the stage extended back on her right.
    Fitzpatrick testified that had she turned around 180 degrees and faced the back of the
    stage, “it [was] possible that more than likely [she] would [have seen] that the stage
    was not there.” Whether the exercise of reasonable care required Fitzpatrick to turn
    around 180 degrees before she moved out of the way of another person leaving the
    stage is a question for resolution by the factfinder.
    The cases cited by Hyatt are distinguishable. In Keister v. Creative Arts Guild,
    
    139 Ga. App. 67
     (227 SE2d 880) (1976), we affirmed the grant of summary judgment
    to a defendant when the plaintiff stepped backwards and fell off an elevated stage or
    platform at an art exhibit. In Herschel McDaniel Funeral Home v. Hines, 
    124 Ga. App. 47
     (183 SE2d 7) (1971), we reversed the denial of the defendant’s motion for
    summary judgment. There, the plaintiff was injured when she entered an altar area of
    a funeral home chapel from a side door, stepped backward to see some flowers better,
    and fell to the chapel floor six inches below. Neither Keister nor Herschel McDaniel
    involved an admittedly hazardous condition as does the instant case.
    But we reject Fitzpatrick’s argument that the trial court erroneously imposed
    a heightened duty of care upon her. In its summary judgment order, the trial court
    wrote, “Common sense dictates a heightened sense of awareness of a potential hazard
    7
    when a person is standing on a raised platform.” That observation is unexceptionable.
    As noted above, whether Fitzpatrick exercised reasonable care for her own safety is
    an issue for the factfinder.
    3. Hyatt’s failure to install safety railings.
    We agree with Hyatt that Fitzpatrick has not shown that Hyatt had a duty to
    install safety railings. See Keister, 139 Ga. App. at 67.
    Judgment reversed. Ellington, P. J., and Dillard, J., concur.
    8
    

Document Info

Docket Number: A15A0943

Judges: McFadden, Ellington, Dillard

Filed Date: 11/23/2015

Precedential Status: Precedential

Modified Date: 11/8/2024