Richardson v. Mapoles ( 2016 )

FIFTH DIVISION
DILLARD, P. J.,
PETERSON and REESE, 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
December 8, 2016
In the Court of Appeals of Georgia
A16A2184. RICHARDSON v. MAPOLES
PETERSON, Judge.
Plaintiff Rebecca Joy Richardson, who fell while trying to enter a Chick-Fil-A
restaurant on Christmas Eve in 2012, appeals the trial court’s grant of summary
judgment to Greg Mapoles, the operator of the restaurant. Richardson argues that the
trial court erred by concluding that she failed to offer sufficient evidence of causation.
Because the evidence taken in the light most favorable to Richardson shows no more
than a mere possibility that a hazard on the restaurant’s property caused her fall, we
affirm.
Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We
review a grant or denial of summary judgment de novo and construe the evidence in
the light most favorable to the nonmovant. See Home Builders Ass’n of Savannah v.
Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).
So viewed, Richardson visited a Chick-Fil-A restaurant midday on a rainy
December 24, 2012. Richardson attempted to enter the restaurant at an entry point
that included two sets of doors. She passed through the outer set of doors easily but
found herself unable to open the left-hand door at the interior set of doors.
As Richardson struggled with that door, she fell. Richardson testified:
Q. Okay. Were you able to eventually open that second set of doors?
A. No, no. I kept pushing, and it just — my feet just slipped out from
under me, and I just fell. And then when I went to get up like you
normally do, I could not move. I just could not move at all.
Q. Okay. All right. Do you remember kind of what sort of movement
your feet made when you ended up on the floor?
A. No. I just was pushing on the door, and the next thing I remember
right now is just falling.
Richardson testified that she did not recall seeing any water on the floor at the time
she tried to open the door. Richardson recalled sitting on the floor “for a long time”
after she fell and recalled that the floor was damp, “because it had been raining.” The
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floor where Richardson landed was covered in some sort of rug or mat. But
Richardson also testified that she could not recall whether the rug or mat that she sat
on after she fell was damp, because “[a]ll [she] was thinking about was pain.”
Before the close of Richardson’s deposition, defense counsel pressed her
repeatedly about the cause of her fall:
Q. Okay. All right. And you don’t know kind of what happened with
your feet at that point; right?
A. No. I just know I fell and was sitting, sort of sitting.
...
Q. But you don’t know exactly what caused you to fall; right?
A. I kept pushing on the door, and it was just so frustrating because, I
mean, I was literally just rattling it trying to get it to open, and it just
would not open.
...
Q. But you don’t know exactly, like I said, what caused you to fall;
right?
[Objection.]
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THE WITNESS: I don’t know how to answer that. I just — it happened
so fast. Just like — I just remember pushing on the door, and the next
thing I remember is just sitting there.
Q. . . . Okay.
A. I don’t remember the time between the fall, you know, when I was
pushing and falling.
Q. So you don’t remember exactly what happened?
A. No. Well —
Q. You were pushing on the door, and then you’re on the ground. That’s
what you remember?
A. Yeah, uh-huh.
Richardson was injured in the fall and transported to a hospital by ambulance.
She sued Mapoles, the operator of the Chick-fil-A where she fell, seeking damages
for her injuries. Mapoles filed an affidavit saying that he was aware of no problems
with the restaurant’s entry doors or any repairs done on the doors related to their
ability to open and close. He moved for summary judgment, arguing that
Richardson’s claims failed because she had not shown what caused her to fall. The
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trial court granted Mapoles’ motion for summary judgment, concluding that
Richardson had failed to point to evidence sufficient to create a genuine issue of
material fact that any negligence by Mapoles caused her injuries.
In her sole enumeration of error, Richardson argues that the trial court failed
to construe all reasonable inferences to be drawn from the evidence in her favor,
leading to the court’s incorrect finding that she failed to offer sufficient evidence of
causation to defeat Mapoles’ motion for summary judgment. The trial court did not
err.
Our Supreme Court has explained that “‘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.” Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493
SE2d 403) (1997). But a plaintiff’s mere speculation about causation is not enough
to prevent summary judgment.
Causation is always an essential element in slip or trip and fall cases.
Where the plaintiff does not know of a cause or cannot prove the cause,
there can be no recovery because an essential element of negligence
cannot be proven. A mere possibility of causation is not enough and
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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.
Pennington v. WJL, Inc., 263 Ga. App. 758, 760 (1) (589 SE2d 259) (2003) (footnotes
omitted).
We have consistently reversed trial courts that have refused to grant summary
judgment to the defense in cases in which the plaintiffs were unable to point to more
than mere speculation as to what caused their fall. See, e.g., Canaan Land Props., Inc.
v. Herrington, 330 Ga. App. 17, 18-21 (1) (766 SE2d 493) (2014) (plaintiff’s
testimony that hole in parking lot “had to be” the cause of his shopping cart veering
and tripping him shows “mere possibility” that the divot caused his fall and thus
defense was entitled to summary judgment); Bryan Bank & Trust v. Steele, 326 Ga.
App. 13, 14-16 (1) (755 SE2d 828) (2014) (summary judgment warranted where
plaintiff testified that it was not clear to her whether her foot caught on something and
she could not say for certain that flower bed fencing she blamed for the fall was on
the sidewalk before she fell); see also Imperial Invs. Doraville, Inc. v. Childers, 303
Ga. App. 490, 493 (1) (693 SE2d 834) (2010) (trial court erred in denying defense
motion for directed verdict where plaintiff testified that he did not know what he
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tripped over). We have reversed denials of summary judgment even when there was
evidence of the presence of a hazard that clearly might cause a fall in certain
circumstances. For example, in Willingham Loan & Realty Co. v. Washington, 311
Ga. App. 535 (716 SE2d 585) (2011), a witness to the plaintiff’s fall deposed that he
noticed ice on a metal exterior staircase at the time the plaintiff fell down it. Id at
535. But the witness could not say whether the ice caused the fall. Id. The plaintiff
deposed that she had previously complained to building management about broken
and loose steps but could say only that it was “possible” that the condition of the
stairs caused the fall and testified at one point, “I don’t know what caused me to fall.”
Id. at 535-36. In the light of that plaintiff’s testimony that she did not know what
caused her to fall, and her failure to offer any other evidence of causation, we
reversed the denial of summary judgment to the defendant apartment complex
owners, saying “the evidence of record raises a mere possibility that a defect in the
stairs caused [the plaintiff]’s fall[.]” Id. at 536.
The evidence here raises no more than a mere possibility that a hazard on the
defendant’s property caused Richardson’s fall. Richardson argues that a defect in the
restaurant door caused her to be unable to open it, which in turn caused her to fall on
the wet floor. Construing the evidence in her favor, as we must, we assume (1) that
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the door was not operating properly; and (2) the rug or mat on which she fell was
damp. But Richardson has pointed to no evidence establishing a causal connection
between any problem with the door and her fall. Although Richardson argues that her
testimony shows that she fell because of her struggle with the door, all that her
testimony shows is that she fell while she struggled with the door. Additionally,
although she testified that the area where she fell was damp, she has put forth no
evidence that the rug or mat on which she landed was slippery or somehow caused
her fall. Rather than offer testimony explaining how she fell and in particular how any
hazard on the defendant’s property caused her fall, Richardson testified that she could
not remember exactly what happened when she fell and “d[id]n’t know how to
answer” the question of what caused her accident. The record places this case
squarely within our cases in which the plaintiff, unable to say for sure what caused
his or her accident, cannot maintain a claim.
Richardson argues that a video provided by Mapoles in discovery creates a
genuine issue of material fact precluding summary judgment. The video, apparently
taken by some sort of security camera, shows the doorway of the restaurant at the time
of the incident. After showing several people enter the store, the video shows
Richardson passing through the outer set of doors. The video then appears to have a
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gap of several seconds, before skipping to an image of Richardson on the floor
between the two sets of doors. Richardson suggests that this gap supports her
testimony that she had difficulty opening one of the inner doors, creating a question
of material fact as to whether the door was defective. But this gap in the video —
which the defense notes is consistent with other gaps in the poor-quality tape — tells
us nothing about what went on between the time Richardson walked in the outer
doors of the restaurant and the time she found herself on the ground. Richardson has
never argued that the gap is the result of some improper act of spoliation by the
defendant such that it should give rise to some particular adverse inference. The video
adds nothing by way of evidence that any hazard on the defendant’s property caused
Richardson’s injuries, and it cannot save her claims from summary judgment.
Judgment affirmed. Dillard, P. J., and Reese, J., concur.
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