Jeanette Bartenfeld v. Chick-Fil-A, Inc. , 815 S.E.2d 273 ( 2018 )

SECOND DIVISION
MILLER, P. J.,
ANDREWS and BROWN, 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
June 15, 2018
In the Court of Appeals of Georgia
A18A0042. BARTENFELD v. CHICK-FIL-A, INC. et al.
A18A0043. CHICK-FIL-A, INC. v. BARTENFELD.
MILLER, Presiding Judge.
After tripping and falling over a concrete wheel stop in the parking lot of a
Chick-fil-A restaurant, Jeanette Bartenfeld sued Chick-fil-A, Inc. (“CFA”) and
Christopher Darley, the restaurant’s owner and franchisee, on theories of negligence
and nuisance. The trial court granted full summary judgment to Darley, ruling that he
had no control over the design or repair of the parking lot, and partial summary
judgment to CFA, finding that Bartenfeld’s negligent design and nuisance claims
failed as a matter of law, but that she could proceed against CFA under the
“distraction doctrine.” Bartenfeld appeals, and CFA cross-appeals. We conclude that
both defendants were entitled to summary judgment on all claims because Bartenfeld
failed to establish that a hazard existed. We therefore affirm in part and reverse in
part.
To prevail on a motion for summary judgment, the moving party must show
that there is no genuine issue as to any material fact and that the undisputed evidence
warrants judgment as a matter of law. OCGA § 9-11-56 (c). We review de novo a trial
court’s ruling on a motion for summary judgment, viewing the evidence in the light
most favorable to the nonmovant. H. J. Wings & Things v. Goodman, 320 Ga. App.
54 (739 SE2d 64) (2013).
So viewed, the record shows that on the morning of September 26, 2013,
Bartenfeld visited a Chick-fil-A restaurant with her nephew and his girlfriend.
Bartenfeld’s nephew parked the car in a row of parking spaces facing the restaurant
on the other side of a drive-through window and lane. A strip of asphalt painted with
white hatch marks served as a buffer between the drive-through lane and the parking
spaces, and a similarly-marked pedestrian walkway crossed the drive-through lane
and led to the restaurant. Centered at the head of each parking space was a low
cement barrier, called a wheel stop, intended to prevent parked cars from encroaching
into the buffer strip and drive-through lane. Bartenfeld, her nephew, and his girlfriend
2
exited the car, walked across the drive-through lane next to the pedestrian path, and
entered the restaurant.
When the three later exited the restaurant, they followed the same route they
had taken to enter. Bartenfeld testified at her deposition that she became distracted
by a vehicle stopped at the drive-through window, and she looked in the direction of
that vehicle as she crossed the drive-through lane. Once Bartenfeld cleared the drive-
through lane and reached the buffer strip, she stopped looking at the drive-through
window and instead looked forward. As Bartenfeld approached her car, her foot hit
the wheel stop in the parking space next to the one where her car was parked.
Bartenfeld tripped and fell, suffering a broken arm and bruises.
In her deposition, Bartenfeld testified that she did not see the wheel stop over
which she tripped when she entered or exited the restaurant. There was no car parked
in the space containing that wheel stop at either time. The parking lot was black
asphalt, and the wheel stop was unpainted cement. According to Bartenfeld, she did
not see the wheel stop because it “blended in” with the white hatch marks on the
buffer strip and pedestrian path. Bartenfeld admitted that she was familiar with wheel
stops and had encountered them previously in other parking lots.
3
Christopher Darley owned and operated the restaurant as a franchisee,
managing day-to-day operations; however, CFA owned the real property and
designed the improvements thereon, including the building and parking lot. Shortly
before Bartenfeld’s fall, CFA resurfaced the parking lot and restriped it with fresh
paint. The wheel stops were removed for this work and then replaced following its
completion. Darley had no input in the parking lot work.
Bartenfeld sued CFA and Darley, alleging that her fall resulted from their
negligence and maintenance of a nuisance. In addition, Bartenfeld sought punitive
damages from CFA based upon its alleged violation of professional standards,
internal policy, and a municipal code governing the use of wheel stops.
Both defendants moved for summary judgment on all claims. The trial court
granted Darley’s motion for summary judgment in full, finding that he owed
Bartenfeld “no duty . . . with respect to the premises” because the undisputed
evidence showed that CFA, not Darley, exercised control over the design of the
restaurant’s parking lot and the selection and placement of wheel stops.
The trial court granted CFA’s motion for summary judgment in part. The trial
court found that (1) “any claims based on negligent or defective design or
engineering” failed because Bartenfeld “offered no expert testimony regarding the
4
appropriate standard for such engineering and design decisions”; (2) Bartenfeld failed
to show that the professional standards she cited had been adopted in Georgia or that
a violation of those standards established a hazardous condition; (3) the wheel stop
did not present a hazardous condition under Georgia law; (4) there was no evidence
to support Bartenfeld’s claim of nuisance; and (5) summary judgment was proper on
Bartenfeld’s claim for punitive damages. However, the trial court denied summary
judgment to CFA to the extent that Bartenfeld claimed the drive-through was a
distraction.
In Case No. A18A0042, Bartenfeld appeals from the trial court’s grant of full
summary judgment to Darley and partial summary judgment to CFA. In Case No.
A18A0043, CFA cross-appeals from the trial court’s denial of its motion for summary
judgment with respect to Bartenfeld’s “distraction doctrine” claim.
Case No. A18A0043
We begin with CFA’s cross-appeal, as it is dispositive of the issues before us.
CFA argues that “[i]n the absence of evidence that the premises were defectively or
negligently designed and engineered or that the wheelstop was a hazardous condition,
CFA, Inc.’s motion for summary judgment should have been granted in its entirety.”
We agree. Bartenfeld’s negligence claim sounds in professional negligence and fails
5
for lack of supporting expert testimony that a hazard existed. Further, even if the
claim could be characterized as one for simple negligence, it fails because the wheel
stop was not a hazard as a matter of law. And in the absence of a hazard, Bartenfeld’s
nuisance claim also fails.
1. Professional negligence.
The trial court ruled that “it appears that [Bartenfeld] is alleging, at least in
part, that the parking lot was defectively designed and engineered.” We agree with
the trial court’s characterization of Bartenfeld’s allegations and conclude that
Bartenfeld presented a claim for professional negligence.
When a hazard results from allegedly negligent design or engineering, then the
plaintiff’s claim is one for professional malpractice. Dept. of Transp. v. Mikell, 229
Ga. App. 54, 56-59 (1) (a) (493 SE2d 219) (1997); see also H. Elton Thompson &
Assoc., P. C. v. Williams, 164 Ga. App. 571, 572 (298 SE2d 539) (1982). “Whether
a complaint alleges ordinary negligence or professional malpractice is a question of
law for the court, regardless of how the plaintiff categorizes it.” (Citation and
punctuation omitted.) Grady Gen. Hosp. v. King, 288 Ga. App. 101, 102 (653 SE2d
367) (2007).
6
Although complaints against professionals may state claims based on
ordinary as well as professional negligence, where the allegations of
negligence against a professional involve the exercise of professional
skill and judgment within the professional’s area of expertise, the action
states professional negligence. If a claim of negligence goes to the
propriety of a professional decision rather than to the efficacy of conduct
in the carrying out of a decision previously made, the claim sounds in
professional malpractice. However, administrative, clerical, or routine
acts demanding no special expertise fall in the realm of simple
negligence.
(Citation and footnote omitted.) Hamilton-King v. HNTB Ga., 311 Ga. App. 202, 204
(715 SE2d 476) (2011).
In her complaint, Bartenfeld alleged that the defendants created and maintained
a dangerous condition through the use of wheel stops that (1) were identical in
appearance to the painted lines designating the buffer strip and pedestrian path and
(2) were too close to the drive-through, thereby distracting pedestrians.
These allegations challenge CFA’s configuration of the parking spaces, drive-through
lane, and pedestrian path, as well as the propriety of its choice among various
mechanisms to use these specific wheel stops to prevent cars from encroaching
beyond the parking spaces. These are design and engineering decisions that “involved
the exercise of professional skill and judgment.” Hamilton-King, supra, 311 Ga. App.
7at 205 (2). Indeed, as CFA points out, it retained professional architects and engineers
to design and construct the improvements on the property, including the parking lot,
drive-through, and pedestrian walkways. See Mikell, supra, 229 Ga. App. at 56 (1) (a)
(holding that “[b]ecause the plaintiffs are challenging the layout of the intersection
itself and the choice of traffic control devices which control it, they are asserting that
the intersection is negligently engineered and designed”).
To support a claim for negligent design or engineering, a plaintiff must present
evidence of the applicable standard of care against which to measure the acts of the
defendant. Mikell, supra, 229 Ga. App. at 58 (1) (a). The plaintiff generally satisfies
this requirement by presenting expert opinion testimony. See Marquis Towers v.
Highland Group, 265 Ga. App. 343, 346 (1) (593 SE2d 903) (2004) (“Expert
testimony is required because the court and jury are not permitted to speculate as to
the standard against which to measure the acts of the professional in determining
whether he exercised a reasonable degree of care.”) (punctuation and footnote
omitted); see also Anderson v. Atlanta Gas Light Co., 324 Ga. App. 801, 813-815 (2)
(751 SE2d 589) (2013). “The exception to this rule is where the alleged professional
negligence is so ‘clear and palpable’ that it may be understood by a jury absent the
8
production of expert testimony.” Minnix v. Dept. of Transp., 272 Ga. 566, 572 n. 32
(533 SE2d 75) (2000) (citation omitted).
It is undisputed that Bartenfeld presented no expert testimony concerning the
appropriate standard of care by which to measure CFA’s design and engineering
decisions in this case. Nevertheless, she argues that expert testimony was not required
here because the issues are “not beyond the ken of an average juror” and because
CFA violated various applicable professional and internal corporate standards. We
are not persuaded.
(a) Citing Pinder v. H & H Food Svcs., 326 Ga. App. 493 (756 SE2d 721)
(2014) (physical precedent only), Bartenfeld argues that the issues in this case are
simple enough that expert testimony is unnecessary. In Pinder, however, the plaintiff
tripped over a parking bumper that was “sitting about one to one-and-one-half feet
up on the sidewalk” with a broken, rusted bolt sticking out of the top. Id. at 495. We
held that the plaintiff was not required to present expert testimony to survive
summary judgment because her allegations centered on poor maintenance and
inadequate lighting. Id. at 498-499 (1).
In this case, by contrast, Bartenfeld challenges the design and configuration of
the parking lot structures, not the condition in which CFA maintained them.
9
Bartenfeld has not asserted that CFA had allowed the condition of the premises to
deteriorate in an unsafe manner, as was the allegation in Pinder. Accordingly, her
claim is one for negligent design or engineering, not negligent maintenance. Pinder,
therefore, does not help her avoid the requirement of providing expert testimony.
(b) In the absence of expert testimony showing the existence of a hazard,
Bartenfeld attempts to prove that the wheel stop was hazardous by citing several
allegedly authoritative standards prohibiting wheel stops. “[E]vidence of . . . a
violation of professional standards in some cases may be so clear and palpable that
it may be understood by a factfinder without expert evidence as to a professional
standard of care.” (Citation and punctuation omitted.) Ga. Real Estate Appraisers Bd.
v. Krouse, 299 Ga. App. 73, 77 (1) (681 SE2d 737) (2009). To avoid the requirement
of presenting explanatory expert testimony, however, the plaintiff must show that the
standards were “authoritative” and “mandatory.” Mikell, supra, 229 Ga. App. at 57
(1) (a). In addition, the standards must “clearly and unambiguously” express the
applicable standard of care, and the defendant’s conduct must be “so blatant that it
clearly violates the standards.” Georgia Real Estate Appraisers Bd., supra, 299 Ga.
App. at 78-79; see also Mikell, supra, 229 Ga. App. at 58 (1) (a) (where authoritative
professional standard contemplates the exercise of discretion, or is “permissive and
10
advisory,” it is insufficient to establish standard of care). Here, Bartenfeld fails to
demonstrate that the standards she cites were mandatory, clear, and unambiguous, or
that CFA blatantly violated them.
First, Bartenfeld asserts that CFA violated the American Society for Testing
and Materials’ (“ASTM”) standard for safe walking surfaces. However, as the trial
court noted, ASTM’s website expressly states, “ASTM standards are voluntary in that
we do not mandate their use.” https://www.astm.org/ABOUT/faqs.html.1 Moreover,
CFA’s use of the wheel stop was not inconsistent with the ASTM standard because
the color of the wheel stop contrasted with the surrounding black asphalt and the
wheel stop was not located in the pedestrian walkway.2 Thus, the ASTM standard did
not “clearly and unambiguously” express a standard prohibiting the use of wheel
stops, and CFA committed no “blatant” violation of such a standard. See Ga. Real
Estate Appraisers Bd., supra, 299 Ga. App. at 77 (1).
1
We also note that safety standards promulgated by private, voluntary
associations generally require expert testimony to “identify, authenticate, and explain
them.” Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 581 (2)
(b) (521 SE2d 600) (1999).
2
The standard provides, in relevant part, that “[p]arking lots should be
designed to avoid the use of wheel stops,” “[w]heel stops shall not be placed in
pedestrian walk way or foreseeable pedestrian paths,” and “[w]heel stops shall be in
contrast with their surroundings.”
11
Bartenfeld also contends that CFA violated its own internal civil engineering
standards regarding the use of wheel stops. “Although a company’s private policy
may be admissible for the purpose of illustrating negligence (or lack thereof) under
circumstances to which the policy would be applicable, the policy does not establish
the governing standard of care.” (Citations omitted.) Youngblood v. All American
Quality Foods, 338 Ga. App. 817, 821-822 (792 SE2d 417) (2016) (physical
precedent only). Thus, CFA’s internal policies cannot, by themselves, substitute for
expert testimony establishing the governing standard of care or the existence of a
hazardous condition.
In any event, there is no evidence that CFA violated its internal standards.
Although CFA’s standards note that wheel stops are “only to be used when no other
practical option exists,” they also provide detailed instructions for the installation of
wheel stops. Nothing in the record shows that CFA’s standards prohibited the use of
wheel stops or that other practical options existed in this case.
Bartenfeld also contends that CFA’s standards mandated the use of yellow
polymer wheel stops instead of concrete wheel stops.3 The record shows that, for
3
Bartenfeld asserts that she might not have fallen if CFA had used yellow
wheel stops at the restaurant, but this is mere speculation and is therefore insufficient
to create an issue of fact to avoid summary judgment. See Canaan Land Properties
12
many years, CFA followed the industry standard of using concrete wheel stops. A few
years before Bartenfeld’s fall, CFA amended its standards to recommend that wheel
stops installed at new CFA locations be made from yellow polymer rather than
concrete because polymer is a more durable material. Even after the shift to polymer
wheel stops for new locations, however, CFA’s internal policy was to replace wheel
stops “like for like” at existing store locations, meaning that it would simply replace
the same wheel stop that was present at that location, in the absence of damage. Thus,
the record does not show that CFA had a clear, mandatory policy requiring yellow
polymer wheel stops at all locations.
Finally, Bartenfeld argues that CFA’s use of the concrete wheel stops violated
the City of Marietta’s municipal code, which she claims incorporated a traffic
engineering standard recommending that wheel stops be avoided or painted yellow.
There is no evidence, however, that the restaurant is located in Marietta and thus
subject to that city’s municipal code.4
v. Herrington, 330 Ga. App. 17, 19 (1) (766 SE2d 493) (2014) (“A mere possibility
of causation is not enough and when the matter remains one of pure speculation or
conjecture and the probabilities are at best evenly balanced it is appropriate for the
court to grant summary judgment to the defendant.”) (citation and footnote omitted).
4
CFA claims that the restaurant is not located in Marietta.
13
Because Bartenfeld presented no expert testimony and no evidence that CFA
blatantly violated a governing professional standard, her professional negligence
claim fails and both CFA and Darley were entitled to summary judgment on that
claim.
2. Ordinary negligence.
Even if Bartenfeld’s negligence claim could be construed as an ordinary
negligence claim, she failed to present evidence that the wheel stop constituted a
hazardous condition under an ordinary negligence analysis.5
“The plaintiff’s first burden in a premises liability case is to show the premises
were defective or hazardous.” (Citation and footnote omitted.) Cohen v. Target Corp.,
256 Ga. App. 91, 92 (567 SE2d 733) (2002); see also Aubain-Gray v. Hobby Lobby
Stores, 323 Ga. App. 672, 674 (1) (747 SE2d 684) (2013) (“the plaintiff’s threshold
burden” is to demonstrate a defect or hazard). In the absence of “evidence of the
existence of a condition that would subject an invitee to an unreasonable risk of
injury,” the plaintiff cannot recover. (Footnote omitted.) Garrett v. Hanes, 273 Ga.
5Claims for ordinary negligence need not be supported by expert testimony.
See Mikell, supra, 229 Ga. App. at 59-60 (1) (c).
14
App. 894, 895 (616 SE2d 202) (2005) (landowner was entitled to summary judgment
because there was no evidence that step over which plaintiff tripped was hazardous).
“[O]ccupiers of premises whereon the public is invited to come are not required
to keep their parking lots and other such areas free from irregularities and trifling
defects. One coming upon such premises is not entitled to an absolutely smooth or
level way of travel.” Wright v. JDN Structured Finance, 239 Ga. App. 685, 686-687
(2) (522 SE2d 4) (1999) (affirming summary judgment to the defendant where the
plaintiff alleged that she tripped over a curb and planter in a shopping center).
Accordingly, it has long been the law in Georgia that wheel stops and similar static
structures are common features of parking lots that should be anticipated by invitees
and do not generally constitute hazards. See McMullan v. Kroger Co., 84 Ga. App.
195, 198 (65 SE2d 420) (1951) (concrete bar in parking lot was not a hazard because
“it could easily have been seen by anyone with normal vision while walking there and
exercising ordinary care for his own safety”); see also McHugh v. Trust Co. of Ga.,
102 Ga. App. 412, 412-413 (116 SE2d 512) (1960) (“cement separator” in parking
lot presented no unreasonable danger because such structures “can be anticipated by
persons traversing a parking lot”).
15
In light of this precedent, Bartenfeld acknowledges that CFA’s “mere use of
a wheel stop alone does not automatically amount to a hazard.” She argues, however,
that the wheel stop in this case was a hazard because it “blended in with the striping[,]
creating an optical illusion that the wheel stop was not an elevated trip hazard,” and
because it was positioned near the drive-through window, thereby creating a
distraction. Neither of these arguments is persuasive.
(a) With respect to Bartenfeld’s “optical illusion” argument, we rejected a
similar contention in Carmichael v. Timothy, 104 Ga. App. 16 (120 SE2d 814)
(1961), and held that a parking divider that allegedly blended in with its surroundings
was not a hazard because “there is a duty on the part of parking lot users to anticipate
the presence of parking dividers, day or night.” Id. at 18 (1); see also Pirkle v. Robson
Crossing, LLC, 272 Ga. App. 259, 261 (612 SE2d 83) (2005) (plaintiff who alleged
that she tripped over a parking lot curb due to an “optical illusion” disguising the
curb’s height could not survive summary judgment because “there is no evidence,
expert or otherwise, that the allegedly ‘hazardous’ curb was negligently designed,
constructed, or maintained”).6
6
We have ruled that fact issues exist, however, where the plaintiff has
submitted expert testimony to support a claim that a structure was obscured due to an
“optical illusion.” See, e.g., Perkins v. Val D’Aosta Co., 305 Ga. App. 126 (699 SE2d
16
Bartenfeld’s reliance on Krystal Co. v. Butler, 149 Ga. App. 696 (256 SE2d 96)
(1979), for the proposition that a parking lot obstruction may pose an unreasonable
risk for an invitee is misplaced. In Krystal, the plaintiff was forced to walk through
the parking lot due to parked cars, trash cans, and trees that blocked a pedestrian
walkway. The plaintiff tripped over a “speed breaker” that was the same color and
material as the pavement. Id. at 696. We held that the multiple obstructions in the
pedestrian walkway “and the evidence of a failure to distinguish the speed breaker by
color” could demonstrate a hazardous condition. Id. at 697. In this case, however,
nothing obstructed Bartenfeld from using the marked pedestrian walkway; the object
over which she tripped was a wheel stop, a common feature of parking lots; and the
wheel stop’s natural cement color contrasted with the surrounding black asphalt.
Thus, Bartenfeld’s reliance on this case is unavailing.
(b) We also find no merit in Bartenfeld’s assertion that the wheel stop was
hazardous because of its proximity to the drive-through window. First, this claim falls
entirely within the realm of negligent design and engineering and thus fails as
380) (2010) (plaintiff who fell from a curb that he described as an “optical illusion”
submitted the affidavit of an expert professional engineer, who opined that the curb
was defective and presented a fall hazard); Hagadorn v. Prudential Ins. Co., 267 Ga.
App. 143 (598 SE2d 865) (2004) (similar facts). Again, Bartenfeld offered no expert
testimony.
17
discussed in Division 1, supra. Second, Bartenfeld testified that when she fell, she had
already successfully traversed the drive-through lane, was no longer even looking at
the drive-through window, and was instead looking forward. “This testimony refutes
any claim that [Bartenfeld] was distracted by concerns over traffic hazards
immediately before the fall.” Wiley v. Family Dollar Store of Swainsboro, Ga., 208
Ga. App. 461, 462 (430 SE2d 839) (1993).
In sum, because Bartenfeld failed to present evidence of a hazard under
theories of either professional negligence or ordinary negligence, the defendants were
entitled to summary judgment on her negligence claim.
3. The “distraction doctrine.”
Although the trial court found that there was no hazard here, it proceeded to
conclude that an issue of fact existed as to whether Bartenfeld was distracted by the
drive-through. In this respect, the trial court erred.
The distraction doctrine “holds that one is not bound to the same degree of care
in discovering or apprehending danger in moments of stress or excitement or when
the attention has been necessarily diverted.” (Citation and punctuation omitted.)
Robinson v. Kroger Co., 268 Ga. 735, 744 (2) (A) (493 SE2d 403) (1997). The
distraction doctrine “is not an independent theory of recovery but may operate to
18
excuse or negate a plaintiff’s failure to discover the hazard when the source of the
distraction is attributable to the defendant.” Wallace v. Nissan of Union City, 240 Ga.
App. 658, 661 (2) (524 SE2d 542) (1999). Thus, the distraction doctrine is relevant
only if the plaintiff has established that a hazard exists and that the defendant had
superior knowledge of that hazard.
As explained in Divisions 1 and 2, supra, Bartenfeld failed to carry her
threshold burden of establishing that a hazard existed. Accordingly, the trial court
erred by permitting a “distraction doctrine” claim to survive summary judgment, as
there exists no such independent claim. We therefore reverse that portion of the trial
court’s order.
Case No. A18A0042
In her appeal, Bartenfeld argues that the trial court erred by finding that she
asserted a claim for professional negligence. For the reasons discussed in Division 1,
supra, we find no merit in this argument. Bartenfeld also argues that the trial court
erred by rejecting her nuisance and punitive damages claims and by awarding
summary judgment to Darley. We disagree.
19
4. Nuisance.
To recover on a nuisance claim, the plaintiff must first show the existence of
a nuisance. Bord v. Hillman, 335 Ga. App. 18, 21 (1) (780 SE2d 725) (2015).
Specifically, “there must be the maintenance of a dangerous condition on a
continuous or regular basis over a period of time in which no action or inadequate
action is taken to correct the condition after knowledge thereof.” (Capitalization
omitted; emphasis supplied.) City of Bowman v. Gunnells, 243 Ga. 809, 810 (1) (256
SE2d 782) (1979). As explained in Divisions 1 and 2, supra, Bartenfeld failed to
show that a dangerous condition existed. Accordingly, the trial court properly granted
summary judgment to the defendants on her nuisance claim. See Nemeth v. RREEF
America, 283 Ga. App. 795, 797-798 (1) (643 SE2d 283) (2007) (affirming summary
judgment for defendants on plaintiff’s premises liability and nuisance claims because
defendants lacked superior knowledge of any hazard).7
5. Punitive damages.
7
In light of this conclusion, we need not address Bartenfeld’s contention that
the defendants were on notice of a continuing hazard because three other customers
allegedly tripped and fell over wheel stops in the parking lot during the 13 years that
the restaurant was open prior to Bartenfeld’s fall.
20
“Under Georgia law, a plaintiff cannot recover punitive damages when the
underlying tort claim fails.” Lewis v. Meredith Corp., 293 Ga. App. 747, 750 (5) (667
SE2d 716) (2008). Accordingly, CFA was entitled to summary judgment on the
punitive damages claim.
6. Darley’s liability.
Bartenfeld contends that Darley was not entitled to summary judgment because
he had a nondelegable duty to protect invitees from injury. Without any evidence of
a hazardous condition, however, there is no basis for holding Darley liable. See
Garrett, supra, 273 Ga. App. at 895. The trial court therefore did not err by granting
summary judgment to Darley.
In conclusion, we affirm the trial court’s grant of full summary judgment to
Darley and grant of summary judgment to CFA on Bartenfeld’s claims for negligent
design or engineering, nuisance, and punitive damages. We reverse the trial court’s
denial of summary judgment to CFA on any ordinary negligence or “distraction
doctrine” claim. Both defendants were entitled to summary judgment on all claims.
Judgment affirmed in part and reversed in part. Andrews and Brown, JJ.,
concur.
21