Buckson Ex Rel. Buckson v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12319 August 30, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00201-CV-4
MARSHA BUCKSON, a minor child by and through
her custodial parent and natural guardian, Joyce Buckson,
JOYCE BUCKSON, individually,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 30, 2005)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Joyce Buckson, individually and on behalf of her minor child, Marsha Buckson
(“Marsha”), appeals the district court’s entry of summary judgment in favor of the
United States in this action brought pursuant to the Federal Torts Claim Act, 28
U.S.C. § 1346 (“FTCA”). On appeal, Buckson argues the district court erroneously
interpreted Georgia premises-liability law on the duties of business owners and
invitees. After thorough review of the record and careful consideration of the parties’
briefs, we affirm.
We review the district court’s order granting summary judgment de novo. See
Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296 (11th Cir. 2000). A
motion for summary judgment should be granted when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together 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 a judgment as a matter of law.” Fed. R. Civ. P. 56 (c). “Where the
record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538(1986) (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289,
88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968)).
2
The parties are familiar with the underlying proceedings and we only
summarize the relevant facts here. Buckson sued the United States for personal
injuries then-eleven-year-old Marsha incurred as a result of a trip and fall that
occurred at the Commissary of a military installation in Fort Stewart, Georgia. While
exiting the waiting line at the cash register, Marsha tripped and fell on the rope
partitions (soft-clad ropes suspended between free-standing metal stanchions, similar
to the partitions one might see at an airport) and sustained injuries to her head, legs,
and chest. It was undisputed that, just prior to exiting the partitions, Marsha had
accompanied her mother through similar rope partitions, perhaps in a different part
of the waiting-line area.
The district court concluded, pursuant to Georgia premises-liability law on the
corresponding duties of owners and invitees, that Buckson could not recover.1
Applying Georgia law, the court stated the following:
The corresponding duties of owners and invitees have resulted in
a two-part test for establishing liability. In order to survive summary
judgment, a plaintiff must have evidence that: (1) the defendant had
actual or constructive knowledge of the hazard, and (2) the plaintiff
lacked knowledge of the hazard despite the exercise of ordinary care due
to actions or conditions within the control of the owner.
1
The FTCA provides a waiver of sovereign immunity when the negligent or wrongful
conduct of a United States employee causes personal injury or death under circumstances where the
United States, if a private person, would be liable in accordance with the substantive law of the place
where the conduct occurred. See 28 U.S.C. § 1346(b)(1). Thus, the controlling substantive law in
this case is the law of Georgia.
3
Notwithstanding this two-part analysis, when an invitee has
successfully traversed an alleged dangerous condition, she is assumed
to possess equal or superior knowledge of it. Specifically, Georgia
courts presume that an invitee that has successfully traversed an
allegedly dangerous area has actual knowledge of the dimensions of the
area and that she knows or should know of the potential dangers posed
by the area. Accordingly, a plaintiff in that situation cannot recover for
a subsequent injury resulting from those dangers.
In this case, it is undisputed that Marsha traversed the partitions
just moments before tripping on them. Defendant argues that Marsha
should, therefore, be presumed to have at least equal knowledge of the
low-lying rope. Plaintiffs entirely fail to respond to this argument in
their response brief. They only contend that Marsha could not have
gained knowledge of the hazardous rope on her prior visits to the
Commissary.
Summary Judgment Order at 9-10 (citations omitted) (emphasis added).
Based on Marsha’s equal or superior knowledge of the ropes, the district court
presumed Marsha’s knowledge of the danger was equal or superior to that of the
United States and entered summary judgment, citing our decision in Evans v. Mathis
Funeral Homes, 996 F.2d 266, 269 (11th Cir. 1993) (observing that Georgia courts
presume plaintiff’s equal knowledge of hazardous conditions when, inter alia,
“plaintiff has traversed the steps only moments before falling” (citing Tuck v.
Marriott Corp., 370 S.E.2d 795, 797 (Ga. Ct. App. 1988), and Roberts v. Gardens
Servs., Inc., 356 S.E.2d 669, 671 (Ga. Ct. App.1987))).
4
Buckson’s argument that the district court erred by focusing on Marsha’s
knowledge on the day of the fall is inconsistent with both the Georgia law cited in the
summary judgment order and Buckson’s position in the district court. In the district
court, Buckson focused exclusively on the Government’s argument that Marsha had
presumed equal knowledge of the rope partitions based on her numerous prior visits
to the Commissary. Consistent with the district court’s analysis, and as we
enumerated in Evans, 996 F.2d at 269-70, under Georgia law, presumed equal
knowledge based on previous exposure to a hazardous condition is different from
presumed equal knowledge based on exposure to the condition “just moments
before.” The Government relied on both theories in the district court. Buckson made
no responsive argument to the Government’s position based on exposure “just
moments before” the incident. At this late juncture, we will not consider her
arguments on this point now. Cf. Novak v. Cobb County Kennestone Hosp. Auth.,
74 F.3d 1173, 1177 (11th Cir. 1996) (refusing to consider errors alleged for first time
on appeal) (internal citation omitted).2
2
In any event, the district court’s analysis was entirely consistent with Georgia premises-
liability law and, thus, on the merits, we are unpersuaded by Buckson’s arguments.
5
On this record, the district court correctly determined there was presumed equal
knowledge under Georgia law. We have thoroughly reviewed the record and, based
on the well-reasoned order of the district court, affirm.
AFFIRMED.
6