Weickert v. Home Depot U.S.A., Inc. ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
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
October 30, 2018
In the Court of Appeals of Georgia
A18A0904. WEICKERT v. HOME DEPOT U.S.A., INC. DO-031
DOYLE, Presiding Judge.
Denis Weickert filed a negligence action against Home Depot U. S. A., Inc.,
after he slipped and fell in water on the floor of the garden center in one of its stores.
Weickert appeals the trial court’s grant of summary judgment to Home Depot,
arguing that (1) he lacked knowledge of the “specific hazard” that caused his fall, and
(2) he was distracted by a Home Depot employee, such that he was prevented from
seeing the hazardous condition. For the reasons that follow, we affirm.
Viewed in the light most favorable to Weickert,1 the record shows that he was
a frequent patron of a Home Depot store in Suwanee for almost a decade. Each
morning, the live plants in the store’s garden center are watered, and “caution” signs
1
See Shekhawat v. Jones, 293 Ga. 468, 469 (746 SE2d 89) (2013).
are placed on the floor in areas that are wet. On May 21, 2014, Weickert visited the
garden center, which he had done on many occasions, to purchase a timer for his
sprinkler. On the date in question, Weickert entered the store through the garden
center, immediately approached an employee at the cashier stand, and requested
assistance. The employee told Weickert to follow him, and Weickert began walking
behind the employee. In Weickert’s own words, when the employee came from
behind the register, “I was talking to him and fell right in behind him. . . .” Within
five to ten steps, Weickert realized that he was slipping in water, and he fell on his
right leg, resulting in serious injuries and, ultimately, amputation of the leg.
Thereafter, Weickert sued Home Depot to recover damages, including medical
expenses and lost wages, that he allegedly incurred as a result of his fall. Home Depot
answered, and discovery ensued. The store manager prepared an affidavit, explaining
that on the day of the incident the floor in the garden center was “noticeably and
visibly wet, and it was surrounded by wet floor signs, including one not more than
five feet from” where Weickert fell. Attached to the affidavit were photographs taken
just after his fall depicting water on the floor and several “caution” signs.
In his deposition, Weickert acknowledged that plants need to be watered, and
some of that water will inevitably end up on the floor. He also agreed that the garden
2
center has a significant amount of natural light and that there were no visibility issues
on the day he fell. Finally, Weickert conceded that he might have seen water on the
floor had he looked down. Nevertheless, Weickert explained that he did not glance
down at the floor before he slipped and fell because he was looking at and following
the cashier. According to Weickert, he was “more concerned in following” the
employee as instructed, stating, “I wanted to get in and get out. So when [the
employee] said follow me[,] I followed him.” Similarly, he did not see any signs on
the floor because he was “talking to [the employee] and fell right in behind him,”
such that he did not “have time to look around and stuff.” Weickert also claimed that
he walked three to four steps behind the employee, such that he could not see the
water or path in front of him, and he did not anticipate that the employee would lead
him through water. But during his deposition, Weickert admitted that in the
photographs taken just after his fall, he could see which areas of the floor were wet
and which were dry, as well as the caution signs.
Home Depot moved for summary judgment on the basis that Weickert had
constructive knowledge of the hazardous condition, arguing that he slipped and fell
in water that was (1) in plain view, (2) surrounded by “caution” signs, and (3) located
in an area where he should have anticipated the presence of standing water. In
3
response, Weickert argued that there was a genuine issue of material fact as to
whether he was distracted by the Home Depot employee at the time of his fall.
Following a hearing, the trial court concluded that Home Depot had actual or
constructive knowledge of the hazard, but exercised ordinary care by placing
multiple, visible caution signs on the floor. With regard to Weickert’s claim of
distraction, the trial court found that the employee’s statement to Weickert to follow
him and Weickert’s act of following the employee did not constitute distractions, nor
did they relieve Weickert of his obligation to exercise ordinary care. This appeal
followed.
On appeal from a grant or denial of summary judgment, we
conduct a de novo review, and we view the evidence and the inferences
drawn from it in the light most favorable to the nonmoving party. A
defendant demonstrates entitlement to summary judgment by showing
that the record lacks evidence sufficient to create a jury issue on at least
one essential element of the plaintiff’s case. The defendant does not
need to affirmatively disprove the plaintiff’s case, but may prevail
simply by pointing to the lack of evidence. If the defendant does so, the
plaintiff cannot rest on his pleadings, but must point to specific evidence
that gives rise to a triable issue of fact.2
2
(Punctuation omitted.) Keisha, LLC v. Dundon, 344 Ga. App. 278 (809 SE2d
835) (2018). See also OCGA § 9-11-56 (c) (Summary judgment is proper if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
4
With regard to premises liability cases, our Supreme Court has held that “as a
general proposition[,] issues of negligence, contributory negligence[,] and lack of
ordinary care for one’s own safety are not susceptible of summary adjudication[,] but
should [instead] be resolved by trial in the ordinary manner.”3 In Georgia, a proprietor
has a statutory duty to exercise ordinary care to keep its premises safe.4 Nevertheless,
proof that an invitee tripped or fell, without more, “does not establish liability on the
part of the property owner or occupier.”5 Rather, in order for a plaintiff to recover
damages for injuries sustained in a slip-and-fall action, an invitee must prove “(1) that
the defendant had actual or constructive knowledge of the hazard; and (2) that the
plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.”).
3
(Punctuation omitted.) Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493
SE2d 403) (1997).
4
See OCGA § 51-3-1. As a customer of Home Depot, Weickert was an invitee,
to whom Home Depot owed this duty. See Robinson, 268 Ga. at 740 (1) (“The
owner/occupier owes persons invited to enter the premises a duty of ordinary care to
have the premises in a reasonably safe condition and not to expose the invitees to
unreasonable risk or to lead them into a dangerous trap.”).
5
Witt v. Ben Carter Properties, LLC, 303 Ga. App. 107, 109 (692 SE2d 749)
(2010).
5
actions or conditions within the control of the owner/occupier.”6 A plaintiff’s
evidentiary burden of proof concerning the second prong of this test is not
shouldered, however, “until the owner establishes that the plaintiff was negligent, that
is, [he] intentionally and unreasonably exposed [him]self to a hazard of which [he]
knew or, in the exercise of reasonable care, should have known existed.”7
1. Weickert argues that the trial court erred by granting Home Depot’s motion
for summary judgment because he lacked knowledge of the “specific hazard” he faced
despite his exercise of ordinary care. Specifically, Weickert contends that he did not
see the water on the floor, and, thus, he had no knowledge of the “specific hazard”
which caused his fall, therefore creating an issue for the jury. He also contends that
the “plain view” doctrine only applies to large objects, and that his frequent visits to
the Home Depot store, without more, did not create constructive knowledge on his
part of the particular standing water in which he slipped.
Weickert did not, however, make these arguments to the trial court. To the
contrary, in his response to Home Depot’s motion for summary judgment, he asserted
only two arguments: (1) Home Depot had actual and constructive knowledge of the
6
Robinson, 268 Ga. at 748-49 (2) (b).
7
LeCroy v. Bragg, 319 Ga. App. 884, 885 (1) (739 SE2d 1) (2013).
6
hazard, and (2) under the particular facts of this case, the application of the distraction
doctrine precluded summary judgment. Similarly, at the summary judgment motion
hearing, Weickert focused on the distraction doctrine. We will not consider an issue
raised for the first time on appeal “because the trial court has not had the opportunity
to consider it.”8 Consequently, we do not address these new arguments.
2. Weickert contends that the trial court erred by granting summary judgment
to Home Depot because he presented some evidence that he was acting with ordinary
care at the time of his fall but was distracted by Home Depot’s employee. We
disagree.
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.
The distraction doctrine is not an independent theory of recovery but
may operate to excuse or negate a plaintiff’s failure to discover the
hazard when the source of the distraction is attributable to the
defendant. Thus, the distraction doctrine is relevant only if the plaintiff
8
White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 504 (2)
(724 SE2d 810) (2012) (punctuation omitted). See also Banks v. Echols, 302 Ga. App.
772, 778 (2) (691 SE2d 667) (2010) (“This Court is for the correction of errors of
law, and where the trial court has not ruled on an issue, we will not address it.”)
(punctuation omitted).
7
has established that a hazard exists and that the defendant had superior
knowledge of that hazard.9
(a) Here, there is no dispute that Home Depot had actual knowledge of the
water on the floor of its garden center, and at summary judgment, Weickert conceded
that Home Depot had arguably produced evidence that his “injury was a result of his
own causal negligence.” Therefore, the “the burden of production shift[ed] back to
[him] to come forward with evidence that creates a genuine dispute of fact on the
question of voluntary or causal negligence by [Weickert] or tends to show that any
such negligence resulted from [Home Depot’s] own actions or conditions under its
control.”10 Thus, the sole issue on appeal is whether Weickert met his burden to put
forth evidence that he was excused from discovering the open and obvious water on
the floor of the garden shop because he was distracted by “something in the control
of [Home Depot], which purported distraction is of such a nature that [Home Depot]
might have anticipated that it would divert [a customer’s] attention.”11
9
(Citations and punctuation omitted; emphasis supplied.) Bartenfeld v. Chick-
fil-A, Inc., 346 Ga App. 759, 768 (3) (815 SE2d 273) (2018).
10
American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 445 (2) (679 SE2d 25)
(2009).
11
(Emphasis supplied.) Robinson, 268 Ga. at 746 (2) (a).
8
Weickert claims that his failure to see the water was excused because after he
asked a store employee for assistance, the employee told him to “follow [him],” and
Weickert followed so closely behind the employee that he could not see around him
to see the water or the warning sign.
As explained by the Supreme Court of Georgia in Robinson pursuant to the
distraction doctrine:
[O]ne 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. Application of the doctrine has
the effect of excusing an invitee from exercising the otherwise required
degree of care because of the circumstances created by the purported
distraction. This is particularly true where the distraction is placed there
by the defendant or where the defendant in the exercise of ordinary care
should have anticipated that the distraction would occur. Thus, when an
invitee asserts that the hazard was not seen before the injury because the
invitee’s attention was diverted, the examination of whether the invitee
exercised ordinary care for personal safety must take into account the
circumstances surrounding the presence of the diversion. If the
distraction has as its source the invitee, the invitee can no more take the
benefit of it to excuse his lack of care for his own safety than one who
creates an emergency can excuse himself because of its existence. . . .
However, where the distraction comes from without, and is of such
9
nature as naturally to divert the [invitee], and also of such nature that the
defendant might naturally have anticipated it, the result is different.12
Here, Weickert approached the cashier and asked about a specific item, to
which the employee responded “follow me.” There is no evidence that the Home
Depot employee continued to engage Weickert in conversation while walking him to
the particular store aisle. Weickert then voluntarily chose to follow the employee so
closely that he could not see around him. And while the employee walked through the
water without pointing it out,13 the pictures show, and Weickert admits, that there was
a “wet floor” warning sign in the area where he fell, the expanse of water in the
garden center was large, and Weickert knew from his numerous previous trips to the
Home Depot that water collected in that area after the plants were watered.
Weickert’s argument that he was “distracted” by an employee who was helping
him at his request, when analyzed in the context of the specific circumstances here,
12
(Citations and punctuation omitted; emphasis supplied.) Id. at 744-745 (2)
(a).
13
There is no duty to warn of an open and obvious hazard. See McLemore v.
Genuine Parts Co., 313 Ga. App. 641, 644 (722 SE2d 366) (2012).
10
cannot save his claim from summary adjudication.14 The conversation was induced
by and anticipated by Weickert. Robinson made clear that if the purported distraction
has as its source the invitee, the invitee cannot benefit from it.15 Further, Weickert’s
decision to follow the employee through the store to find a specific item does not
convert the employee into a distraction or an obstruction of the alleged hazard. The
employee did not instruct Weickert to follow him in any particular manner; rather, it
14
The store employee leading Weickert to the sprinkler timer was furthering
the purpose of Weickert’s visit to the store and was not “of such a nature” that Home
Depot “might have anticipated that it would divert [Weickert’s attention[.]” Robinson,
268 Ga. at 746 (2) (a) (citation omitted). See Bartlett v. McDonough Bedding Co.,
313 Ga. App. 657, 660 (722 SE2d 380) (2012) (rejecting the plaintiff’s claim
regarding the distraction doctrine because “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 [the store]”) (citation, punctuation and
footnote omitted).
15
See Robinson, 268 Ga. at 744-745 (2). See Federated Dept. Stores v. Clum,
205 Ga. App. 798, 799 (423 SE2d 716) (1992) (a customer’s reliance on the
distraction doctrine was misplaced because the conversation with the employee was
self-induced, not created by the defendant, and could not have been reasonably
anticipated by the defendant). Compare Wallace v. Nissan of Union City, 240 Ga.
App. 658, 659 (524 SE2d 542) (1999) (reversing the grant of summary judgment to
the defendant because the customer slipped and fell on ice in an area that lacked
warning cones and had not been salted after an employee approached the customer,
directed him to accompany him to the opposite side of the building, and engrossed
him in conversation during the walk); Jackson Atlantic, Inc. v. Wright, 129 Ga. App.
857, 859-861 (1) (201 SE2d 634) (1973) (physical precedent only) (affirming a jury
verdict in favor of the plaintiff who fell into a hole created by an open floor safe after
the store manager asked her to “move back”).
11
was Weickert’s choice to follow so closely that he could not see his surroundings. In
short, none of Weickert’s conduct or choices was in the control of Home Depot, nor
was the conduct of its employee of “such a nature” that Home Depot could have
anticipated that Weickert’s attention would “necessarily” be diverted.16
This is the linchpin of this and every distraction doctrine case. Not just any
conduct of an employee becomes a distraction because a customer claims it is so. The
distracting conduct must be in the control of the store owner and be of such a nature
that it would necessarily divert a customer’s attention. Necessarily means “[a]s a
necessary result,” “inevitably.”17 It is synonymous with “automatically” and
“unavoidably.”18 To hold otherwise results in virtually everything that happens at a
premises becoming a distraction in the eye of the customer.19 The distraction doctrine
16
Robinson, 268 Ga. at 746 (2) (a). There is no evidence that the employee
engaged in any out of the ordinary conduct. Instead, the evidence is that he simply
walked through the store.
1 7
Oxford English Dictionary, OED Online
http://www.oed.com/view/Entry/125625 (October 18, 2018).
18
Id.19
Robinson, 268 Ga. at 744 (2) (a) (“[l]ooking at displayed merchandise or a
store’s aisle signage has been repeatedly found to constitute a self-induced
distraction”) (collecting cases); Bartlett, 313 Ga. App. at 660 (“the sole distraction
[plaintiff] asserts, looking at merchandise, cannot be accepted under the distraction
12
contemplates “moment[s] of stress or excitement,” not everyday commonplace
occurrences.20
Accordingly, the trial court properly granted summary judgment to Home
Depot in this case.
(b) The dissent relies on Barentine v. Kroger Co.21 However, Barentine was not
a distraction doctrine case.22 Instead, the Supreme Court of Georgia granted certiorari
“to consider whether the Court of Appeals correctly applied the rules applicable to
the contradictory testimony of a party witness.”23 The Court of Appeals reversed the
trial court’s denial of Kroger’s motion for a directed verdict, construing Barentine’s
theory because that was the very activity that brought him to [the premises]”); Long
John Silver’s v. Coleman, 223 Ga. App. 864, 865-866 (479 SE2d 141) (1996) (“Any
distraction was self-induced by [the plaintiff’s] decision to read the sign while
walking rather than stop to read it, preventing recovery.”).
20
Robinson, 268 Ga. at 746 (2) (a).
21
264 Ga. 224 (443 SE2d 485) (1994).
22
As noted in Robinson, the Barentine Court did not mention the distraction
doctrine. See Robinson, 268 Ga. at 745 (2) (a).
23
Barentine, 264 Ga. at 224.
13
contradictory testimony against him.24 The Supreme Court agreed that portions of
Barentine’s contradictory testimony should have been construed against him, but
reversed this Court because the favorable portion thereof was not the only evidence
that Barentine exercised reasonable care for his own safety.25
Nonetheless, after Barentine was decided, certain opinions of the Court of
Appeals treated it as a distraction doctrine case. As the Supreme Court explained in
Robinson:
[s]ince the Barentine decision, the Court of Appeals has taken divergent
paths when discussing the distraction theory in conjunction with an
invitee’s exercise of ordinary care for personal safety. When an
employee-generated conversation is proffered as the reason why the
invitee was not looking at the floor, the plaintiff has been found, citing
Barentine, to have presented evidence of the exercise of reasonable care
and thereby precluded summary judgment for the defendant. Recently,
[in Carr v. Sears, Roebuck & Co,26] the Court of Appeals determined
24
See id. at 225.
25
See id.26
226 Ga. App. 768, 770 (487 SE2d 415) (1997) (“Even though [the plaintiff]
testified that she was not distracted by anything . . . , in fact, she was responding to
the sales associate’s request that she move to the front of the counter at the time she
tripped over the box. . . . Until further clarification of Barentine, we are constrained
to hold that any communication with a store employee under circumstances such as
those presented here, whether initiated by the customer or the employee, is ‘some
14
that any conversation between a customer and an employee, regardless
of who initiated communication, is some evidence of the invitee’s
exercise of ordinary care.
On the other hand, the appellate court took a more expansive view of
Barentine in Ferguson v. Scadron,[27] and ruled that the [plaintiff’s]
offer of a specific reason for not looking where he was going, regardless
of the involvement of a store employee, created a jury question, since it
was a circumstance where the exercise of reasonable care demands a
focus away from the floor. But in [two other Court of Appeals cases28],
. . . the proffer of a plausible reason why the invitee was not looking at
the floor did not preclude summary judgment in favor of the defendant.29
Thus, to rectify the confusion caused by this Court’s decisions after Barentine,
the Robinson Court clarified its holding:
evidence’ that a plaintiff was exercising reasonable care for his own safety, thus
precluding summary judgment.”) (emphasis supplied).
27
227 Ga. App. 614, 616 (489 SE2d 873) (1997).
28
See Freyer v. Silver, 227 Ga. App. 253 (488 SE2d 728) (1997) (McMurray,
J., dissenting); Parks-Nietzold v. J. C. Penney, 227 Ga. App. 724 (490 SE2d 133)
(1997) (McMurray, J., dissenting),
29
(Citation and punctuation omitted; emphasis supplied.) Robinson, 268 Ga.
at 745-746 (2) (a).
15
[W]hen an invitee explains that he was not looking at the location of the
hazard which caused injury because of something in the control of the
owner/occupier, which purported distraction is of such a nature that the
defendant might have anticipated that it would divert an invitee’s
attention, e.g., the conduct of a store employee,30 the premises
construction or configuration, or a merchandise display of such a nature
that its presence would not have been anticipated by the invitee, the
invitee has presented some evidence that [the invitee] exercised
reasonable care for [the invitee’s] own safety. It will then be for the
fact-finder to determine if the injury sustained was proximately caused
by the defendant’s negligence and whether the plaintiff failed to exercise
reasonable care for personal safety.31
30
While there are certainly instances where “the conduct of a store employee”
is “of such a nature that the defendant might ... anticipate[] that it would divert an
invitee’s attention,” the plain, palpable, and undisputed facts in this particular case
demonstrate that the Home Depot employee was not a distraction. See Robinson, 268
Ga. at 746 (2) (a) (citation omitted); OCGA § 9-11-56(c).
31
(Citation and punctuation omitted). Id. at 746 (2) (a).
16
Thus, Barentine and cases such as Carr and Ferguson were clarified to ensure that
distractions caused by or within the control of the invitee are insufficient to meet the
plaintiff’s burden of production on summary judgment.32
Judgment affirmed. Mercier, J., concurs. Dillard, C. J, concurs in part and
dissents in part.*
* DIVISION TWO OF THIS OPINION IS PHYSICAL PRESCEDENT ONLY. SEE COURT
OF APPEALS RULE 33.2(a).
32
See id. at 748 (2) (b).
17
A18A0904. DENIS WEICKERT v. HOME DEPOT U.S.A., INC.
DILLARD, Chief Judge, concurring in part and dissenting in part.
This case is the poster child for the difficulty often faced by both trial and
appellate courts in applying the “distraction doctrine.”1 Indeed, to say that this
doctrine is imprecise is the height of charity. Nevertheless, this Court must determine
if there is a genuine issue of material fact as to whether Weickert was distracted to
such a degree that he is “not bound to the same degree of care in discovering or
1
I concur fully in Division 1 of the majority’s opinion. As a result, this division
of the opinion may be cited as binding precedent. See Court of Appeals Rule 33.2 (a)
(1).
apprehending danger” because his “attention [was] necessarily diverted.”2 In doing
so, we are asked to consider whether the circumstances surrounding Weickert’s tragic
injury—which resulted in amputation of his leg —are such that Home Depot should
have anticipated Weickert being distracted by an employee directing him to follow
along while they were carrying on a conversation. The majority answers this question
in the negative, claiming Weickert “induced and anticipated” the conversation that
ultimately caused his distraction and injury, and thus he cannot benefit from a
distraction of his own making. But if the majority is correct, then injured plaintiffs
may never be able to avail themselves of the distraction doctrine when they are
injured shortly after seeking assistance from an employee. In my view, this stretches
the reasoning of Robinson v. Kroger Co.3 beyond the breaking point. Employees are
there to serve customers. Weickert was a customer who needed help. An employee
offered assistance, directed Weickert to follow him, engaged in conversation with
Weickert, and then led him through pooled water. Is this enough to constitute a
distraction within the meaning of the doctrine? I have my doubts. But I do think there
2
Robinson v. Kroger Co., 268 Ga. 735, 744 (2) (a) (493 SE2d 403) (1997)
(citation and punctuation omitted).
3
268 Ga. 735 (493 SE2d 403) (1997).
2
is a genuine issue of material fact as to whether these circumstances are such that
Weickert can avail himself of the distraction doctrine, so I respectfully dissent.
In Robinson v. Kroger Co., the Supreme Court of Georgia clarified the scope
of the distraction doctrine, holding that “when an invitee explains that he was not
looking at the location of the hazard which caused injury because of something in the
control of the owner/occupier, which purported distraction is of such a nature that the
defendant might have anticipated that it would divert an invitee’s attention” (e.g., “the
conduct of a store employee”), then “the invitee has presented some evidence of the
exercise of reasonable care for the invitee’s own safety.”4 And it is then up to a jury
to determine if “the injury sustained was proximately caused by the defendant’s
negligence and whether the plaintiff failed to exercise reasonable care for personal
safety.”5 Moreover, in applying the distraction doctrine, this Court has held that when
an invitee presents evidence of a conversation or interaction with an employee, which
allegedly distracted the invitee from noticing a hazard, a jury must determine whether
the distraction doctrine applies.6
4
Id. at 746 (2) (a).
5
Id.6
See Wallace v. Nissan of Union City, Inc., 240 Ga. App. 658, 661 (2) (524
SE2d 542) (1999) (holding that when the defendant’s employee and invitee were
3
Here, the majority concludes that Home Depot is entitled to judgment as a
matter of law because the conversation between Weickert and its employee was
induced and anticipated by Weickert. But to hold that a customer forfeits the possible
protection of the distraction doctrine by asking for help from an employee ignores the
duty owed by an owner/occupier to an invitee. As our Supreme Court explained in
Robinson, by encouraging others to enter their premises “to further the
owner/occupier’s purpose, the owner/occupier makes an implied representation that
reasonable care has been exercised to make the place safe for those who come for that
engrossed in conversation, the jury was required to decide whether the employee
distracted the invitee from discovering the hazard); Laffoday v. Winn Dixie Atlanta,
Inc., 235 Ga. App. 832, 833-834 (510 SE2d 598) (1998) (holding that the invitee
presented some evidence she exercised reasonable care for her own safety when,
although she had been warned to be careful about water in the area, she had no actual
knowledge of the particular water which caused her to slip while she was startled by
and “responding to a page over the intercom from the store manager requesting that
[she] report to the front of the store”); Carr v. Sears, Roebuck & Co., 226 Ga. App.
768, 770 (487 SE2d 415) (1997) (holding that even when the hazard was “a large
object in plain view” and the invitee “testified that she was not ‘distracted’ by
anything[,]” evidence that “she was responding to the sales associate’s request that
she move to the front of the counter at the time she tripped . . . . was some evidence
that she was exercising reasonable care for her own safety”); cf. Bartlett v.
McDonough Bedding Co., 313 Ga. App. 657, 660 (722 SE2d 380) (2012) (noting that
the plaintiff’s assertion he was distracted by looking at merchandise could not be
accepted under the distraction theory). In stark contrast to this case, there was no
interaction between the plaintiff and any employee in Bartlett.
4
purpose[.]”7 It is this very representation that forms “the basis of the liability of the
owner/occupier for an invitee’s injuries sustained in a ‘slip-and-fall.’”8 And it is in
this light that “an invitee’s exercise of ordinary care for personal safety must be
examined.”9 So, even though Weickert asked for assistance from an employee (as
customers often do), there can still be genuine issues of material fact as whether the
employee distracted him and whether he exercised reasonable care for his own
safety.10
It is true, of course, that if the distraction has as its source the invitee, “the
invitee can no more take the benefit of it to excuse his lack of care for his own safety
than one who creates an emergency can excuse himself because of its existence.”11
7
Robinson, 268 Ga. at 741 (1).
8
Id.9
Id.10
Wallace, 240 Ga. App. at 659, 661 (2) (finding genuine issue of material fact
as to application of distraction doctrine when employee offered help, customer
expressed an interest in a used car, and employee suggested customer “accompany
him to walk toward the opposite side of the sales building[,]” and customer slipped
and fell in ice while they were “engrossed in conversation”).
11
Robinson, 268 Ga. at 744 (2) (a) (punctuation omitted); see id. (noting that
self-induced distractions may include “a plaintiff’s release of a cart[,]” a
“conversation with companions[,]” or “[l]ooking at displayed merchandise or a store’s
aisle signage”).
5
And the majority certainly embraces this principle, holding that, under the specific
circumstances presented, Weickert was the source of the distraction. I disagree. A
trial court can only conclude as a matter of law that “the facts do or do not show
negligence on the part of the defendant or the plaintiff . . . where the evidence is
plain, palpable and undisputable.”12 And when “reasonable minds” can differ as to the
conclusion to be reached “with regard to questions of whether an owner/occupier
breached the duty of care to invitees and whether an invitee exercised reasonable care
for personal safety, summary adjudication is not appropriate.”13
Here, Weickert testified that the accident happened quickly, and he did not
glance down at the floor before he slipped and fell because he was looking at and
speaking with the employee. According to Weickert, he was “more concerned in
following” the employee as instructed because he “wanted to get in and get out.” And
Weickert did not see any signs on the floor because he was “talking to [the employee]
and fell right in behind him,” such that he did not “have time to look around and
12
Id. at 739 (1) (quoting Ellington v. Tolar Const. Co., 237 Ga. 235, 237 (II)
(227 SE2d 336) (1976)); accord Landings Ass’n, Inc. v. Williams, 291 Ga. 397, 399
(728 SE2d 577) (2012).
13
Robinson, 268 Ga. at 740 (1) (emphasis supplied); accord Duff v. Bd. of
Regents of Univ. Sys. of Ga., 341 Ga. App. 458, 461 (800 SE2d 640) (2017).
6
stuff.” As Weickert explained in his affidavit, because he was following three to four
steps behind the employee, he was unable to see obstacles or hazards directly in front
of the employee, including the water in which he slipped. Thus, Weickert presented
some evidence that he did not see water on the floor because he was speaking with
and following behind the employee as instructed, and this Court should not disregard
that evidence.14 It is not our role to “sort through the evidence, resolve conflicts, and
make findings of fact based on the evidence it finds credible,”15 and the majority
comes close to doing just that by characterizing Weickert as “voluntarily [choosing]
to follow the employee so closely that he could not see around him.” In my view,
whether Home Depot might have anticipated that its employee’s instruction to
Weickert to follow him and their ensuing conversation would divert Weickert’s
14
Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010) (“[A]
witness’s uncontradicted testimony [cannot] simply be disbelieved in order to
eliminate the evidence it provides.”); accord Elder v. Hayes, 337 Ga. App. 826, 831
(1) (788 SE2d 915) (2016).
15
Hardin v. Hardin, 301 Ga. 532, 536 (801 SE2d 774) (2017) (punctuation
omitted); accord Montgomery v. Barrow, 286 Ga. 896, 898 (1) (692 SE2d 351)
(2010). Similarly, the trial court is not a trier of fact on a motion for summary
judgment. Hardin, 301 Ga. at 537; accord Covington Square Assocs., LLC v. Ingles
Markets, Inc., 287 Ga. 445, 448 (696 SE2d 649) (2010).
7
attention away from the pooled water on the floor,16 or that Weickert would follow
close behind the employee and not notice that he was being led through the water, are
questions for a jury.
Furthermore, a grant of summary judgment to Home Depot does not comport
with the holding of Barentine v. Kroger Co.17 In that case, the Supreme Court of
Georgia pointed to the invitee’s testimony that upon entering the store, he saw the
nighttime cashier standing away from the only open register; that as he was walking
toward the check-out line he “saw the cashier standing in the same place”; that he
looked at the cashier “as he was walking toward the check-out line so that he could
tell him he was ready to check out; and that as he told the cashier he was ready to
16
It was only after the Home Depot employee instructed Weickert to follow
him that Weickert—talking to and following behind the employee—slipped and fell.
These facts are distinguishable from those presented in Federated Dep’t Stores, Inc.
v. Clum, 205 Ga. App. 798 (423 SE2d 716) (1992), upon which the majority relies.
In Clum, while the invitee watched, a sales associate “unrolled two or three feet of a
runner in the aisle.” Id. at 799. Then, after declining to make a purchase, the invitee
“engaged in a conversation with the sales associate which lasted several minutes.” Id.
She then turned to leave, and, “forgetting about the partially unrolled rug in the aisle,
tripped” over the rug. Id. Rejecting the claim of distraction, this Court held that “her
alleged distraction was self-induced, was not created by appellant, and could not have
been reasonably anticipated by appellant.” Id.
17
Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994).
8
check out, he slipped and fell.”18 Our Supreme Court held that this testimony—i.e.,
that the invitee was looking at the cashier—constituted “some evidence” the invitee
exercised reasonable care for his own safety.19 And if merely looking at a cashier
constitutes “some evidence” that an invitee exercised reasonable care for his own
safety, then talking to and following behind an employee (as directed) certainly does.
Suffice it to say, we are bound by our Supreme Court’s decisions and must faithfully
apply them in this case.20
In sum, the majority misapplies Robinson and runs afoul of Barentine. Under
these binding precedents, a customer who asks for help from an employee and is
injured shortly thereafter is not necessarily prohibited from availing himself of the
18
Id. at 225.
19
Id.20
See Ga. Const., art. VI, § VI, ¶ VI (1983) (“The decisions of the Supreme
Court shall bind all other courts as precedents.”); State v. Smith, 308 Ga. App. 345,
352 (1) (707 SE2d 560) (2011) (“[T]he doctrine of stare decisis prohibits this Court
from ignoring the valid precedent of a higher court.”); see also State v. Jackson, 287
Ga. 646, 658 (5) (697 SE2d 757) (2010) (“Stare decisis is an important principle that
promotes the rule of law . . . .”); Kurt T. Lash, Originalism, Popular Sovereignty, and
Reverse Stare Decisis, 93 Va. L. Rev. 1437, 1454 (2007) (noting that “[v]ertical stare
decisis refers to the binding effect of precedent on lower courts[,]” and that “[s]erious
rule of law costs would follow if lower courts were free to ignore precedent
established by a higher court of appeal”).
9
distraction doctrine. And Weickert’s testimony that he was distracted by talking to
and looking at the employee he was following through the store when he slipped and
fell constitutes “some evidence” he exercised reasonable care for his own safety.21 As
a result, the evidence on the issue of Weickert’s distraction (or lack thereof) was not
plain, palpable, and undisputed,22 and this case should proceed to a jury trial.23
21
See supra note 6.
22
See supra notes 12-13 & accompanying text.
23
See Ga. Const., art. I, § I, ¶ XI (a) (1983) (providing that the right to a jury
trial “shall remain inviolate”).
10