Rouse v. Metropolitan Atlanta Rapid Transit Authority , 266 Ga. App. 619 ( 2004 )

Barnes, Judge.

Leslie Rouse appeals the grant of summary judgment to the Metropolitan Atlanta Rapid Transit Authority and the Millar Elevator Service Company in her action against them arising from an incident on an escalator in the Five Points MARTA station. In her complaint, Rouse alleged that the defendants were negligent in allowing the escalator to be used when a gap existed at the bottom of the escalator that would allow a user’s foot to be caught in the escalator’s machinery. For the reasons that follow, we reverse.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991):

To prevail at summary judgment under OCGA§ 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Id. “In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” (Emphasis supplied.) Id. at 495.

Further, when a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

2. The standard of care applicable to common carriers applies to MARTA in this case. Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 458 (2) (475 SE2d 188) (1996); Sparks v. MARTA, 223 Ga. App. 768 (1) (478 SE2d 923) (1996). In Georgia, “a common carrier of passengers is not an absolute and unqualified insurer of the safety of its passengers. Rather, ‘(a) carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.’ OCGA § 46-9-132.” Mattox v. MARTA, 200 Ga. App. 697 (409 SE2d 267) (1991). Further, a common carrier cannot waive or release this duty, or avoid it by contracting with a third party. Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771) (1994). Extraordinary diligence is “that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances.” (Citation and punctuation omitted.) Southeastern Stages v. Stringer, 263 Ga. 641 (437 SE2d 315) (1993). Whether the carrier has exercised extraordinary care and diligence is ordinarily for the jury. Mattox, supra, 200 Ga. App. at 698.

3. Giving Rouse the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom most favorably toward her, the evidence shows that Rouse was about to get off the escalator after descending from street level when the incident occurred. First, her left foot was caught in the escalator, and, after she pulled her left foot free, her right foot was caught underneath the comb plate of the escalator. MARTA employees had to reverse the escalator to free Rouse’s foot.

When her foot was released, it had cuts on the bottom, her fourth toe was broken, her foot was cut on the top, and her big toe had a piece of flesh cut out. She was taken to Grady Hospital for medical treatment, which included putting a metal rod in her broken toe.

Ms. Rouse’s cousin, who was traveling behind her on the escalator, ran down the escalator to assist her. She stated that while Rouse’s foot was being removed from the escalator, she saw that the escalator had chips or cracks running through it. Rouse testified that a part which would have kept her foot from slipping underneath the escalator was missing.

Rouse filed suit, alleging that both defendants were negligent in allowing the escalator to be used when a dangerous condition existed, and that MARTA had failed in its obligation to use reasonable and diligent inspection to monitor the condition of the escalators and assure that they were in proper working order. The defendants filed a combined answer denying liability and then moved for summary judgment. They contended they had no prior knowledge of any escalator malfunction and no evidence shows that they failed to service and maintain the escalator or that they did so negligently.

In support of their motion the defendants submitted the affidavit of a MARTA escalator safety inspector, who stated that the escalator had been repaired and was in proper working order. The affidavit also stated that the inspector was called to the scene of Rouse’s accident and saw them remove her foot from the escalator. He examined the comb plate at that time, which had no missing teeth and was not defective.

The defendants also submitted the affidavit of an escalator mechanic who worked for Millar. The mechanic’s affidavit described how he and a co-worker inspected the escalators each day and looked at the comb plate at the bottom of each escalator. On February 29, 2000, he replaced two comb plates and performed other maintenance on the escalator on which Rouse was injured, and after that, he saw no defects on that escalator in the weeks before Rouse’s injury. After the work was done, the comb plates were in proper working order. He was on the scene of Rouse’s accident and put a crowbar between the floor plate and the step to raise the comb plate and free Rouse’s foot, thus breaking the plate.

The deposition of a former Millar elevator foreman revealed that a comb plate impact switch existed that would automatically turn off the escalator in circumstances like this, but that MARTA had never requested that the switch be installed. The switch’s purpose is to prevent injury to anyone coming in contact with the comb plate. The foreman knows of other escalators in the MARTA system with such a switch, but these escalators were manufactured by a different company. These switches, however, can be added to an existing escalator, and while no code requirement for installation of these switches currently exists, if an escalator is upgraded in any way, the code requires that the switches be added.

The foreman was also on the scene of Rouse’s accident and saw no breaks in the comb plate until it was broken in the process of getting Rouse’s foot freed from the escalator. In the foreman’s opinion, Rouse did not step off the escalator at the bottom, and she was “basically turned sideways riding it down.”

MARTA and Millar contend that this evidence shows that they were not negligent, that they had a regular program of inspecting the escalators, and that they had no notice of any defect in the comb plate. Rouse contends, however, that the evidence shows that MARTA and Millar failed to exercise extraordinary diligence because they failed to install a comb plate switch which would have turned off the escalator and prevented her injury.

Although MARTA and Millar contend that we cannot consider the comb plate switch argument because Rouse did not raise it below, we find that this contention is without merit. It is true that Rouse did not explicitly argue that MARTA and Millar had a duty to install the switch, but this does not mean that the issue was not raised.

Rouse raised the issue that MARTA and Millar failed to exercise extraordinary diligence and that issue includes any failure to exercise extraordinary diligence that is raised by the evidence. The testimony from the foreman’s deposition, stated above, shows that the issue of the comb plate switch was raised by the evidence before the court. Accordingly, we find that the allegation concerning the comb plate switch was properly before the court below.

Although speaking in terms of a railroad involving passengers in danger, our Supreme Court addressed this issue over 100 years ago.

[W]hen the circumstances are such that a person in the exercise of that degree of diligence known to the law as extraordinary care would see, or should apprehend, that the passenger is in danger of insult or injury; and when the circumstances were such that the employees in charge of the train, in the exercise of the degree of diligence above referred to, should have foreseen that an insult or injury was to be reasonably apprehended, and failed or refused to use the means at hand to protect the passenger therefrom, the railway company is liable to the passenger for any damages he sustains as a consequence of such failure or refusal. The general rule . . . would seem to be that whenever a carrier, through its agents or servants, knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable----Knowledge of the passenger’s danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier’s liability in this class of cases. . . . The law now seems to be well settled that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of his passenger’s safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger’s journey safe and comfortable.

(Citation and punctuation omitted.) Savannah &c. R. Co. v. Boyle, 115 Ga. 836, 838-839 (42 SE 242) (1902). Accordingly, we find an issue exists whether MARTA was obligated to use the means available, i.e., the switch plate, to protect its riders from the danger of injury such as Rouse suffered. Although one charged with exercising ordinary diligence might not be required to install a comb plate switch, we find that, because they are charged with extraordinary diligence, a question of fact is raised by MARTA and Millar’s failure to install such a switch which is specifically designed to avoid the type of injury that Rouse received.

The dissent relies upon Darlington Corp. v. Finch, 113 Ga. App. 825, 827-828 (149 SE2d 861) (1966), for the proposition that MARTA was not obligated to add this safety feature. Darlington is inconsistent with the precedent it relies upon and should be overruled. The part of the statement from Darlington that the dissent quotes is a quotation in Darlington from Emory Univ. v. Porter, 103 Ga.App. 752, 755 (120 SE2d 668) (1966). Emory Univ. v. Porter, however, was not a case involving extraordinary diligence. Indeed, Emory Univ. v. Porter makes that very clear:

A hospital owes to its patients only the duty of exercising ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use under the same, or similar, circumstances in hospitals in the area. [Cit.] It is not required to furnish the latest or best appliances, or to incorporate in existing equipment the latest inventions or improvements even though such devices may make the equipment safer to use.

(Emphasis supplied.) Id. at 755. Of course, Darlington, as a case involving a malfunctioning elevator, was a case in which the duty of extraordinary care was required, and, therefore, should not have relied upon precedent from an ordinary care case. Davis v. Augusta Factory, 92 Ga. 712, 713 (18 SE 974) (1893), which Darlington and the dissent also quote, is also a case that involved factory machinery and also was a case in which the defendant was not required to exercise extraordinary care. Under these circumstances, Darlington must be overruled.

Further, the dissent cannot choose to disregard Rouse’s testimony that the part was missing from the escalator. Although MARTA’s witnesses testified that no parts were missing on the escalator, this merely creates an issue of fact that a jury must decide. On motions for summary judgment, the court cannot resolve the facts or reconcile the issues. Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981). When the contradiction by witnesses is on a relevant and material issue, it is error to grant a motion for summary judgment. Raven v. Dodd’s Auto Sales & Svc., 117 Ga. App. 416, 422 (160 SE2d 633) (1968).

Accordingly, we find that the trial court erred by granting summary judgment to MARTA and Millar.

Judgment reversed.

Blackburn, R J., Eldridge, Miller, Ellington, Phipps and Adams, JJ., concur. Mikell, J., concurs in judgment only. Smith, C. J., Andrews, P. J., Johnson, P. J., and Ruffin, P. J., dissent.