Verdict - Spring 2016 - (Page 43)

> CASE UPDATES What's New? BY SHAUN O'HARA GEORGIA COURT OF APPEALS REVERSES TRIAL COURT'S SUMMARY JUDGMENT RULING IN PREMISES LIABILITY CASE The Georgia Court of Appeals in Stephens v. Kmart Corp., No. A15A2211, 2016 WL 1102620, at *1 (Ga. Ct. App. Mar. 22, 2016), held that a trial court erred in granting summary judgment to Kmart in a premises liability trip and fall lawsuit. In so doing, the Court of Appeals held that "there is a question of fact as to whether the configuration of the merchandise display by Kmart was such that the injury sustained was proximately caused by its negligence and whether [Plaintiff] exercised reasonable care for her own safety. Therefore, the trial court erred in granting off to the curb] and thus the defect was or should have been visible to summary judgment to Kmart." her." Notably, "[i]t is...[Plaintiff's] knowledge of the specific hazard The underlying facts were as follows. On March 12, 2011, Plaintiff and which precipitates the slip and fall which is determinative, not merely her husband went to a Kmart store located in Tifton to make a payment her knowledge of the generally prevailing hazardous conditions or of the on items that were being held in layaway. Plaintiff had visited the store hazardous conditions which plaintiff observes and avoids." on two or three other occasions to make payments, but would make her payment and leave. On this occasion, while her husband went inside the GEORGIA COURT OF APPEALS ADDRESSES PROPER store, Plaintiff remained outside to browse through several clothing racks VENUE FOR CLAIMS BROUGHT PURSUANT TO THE located on the sidewalk in front of the store. As she was looking at the GEORGIA TORT CLAIMS ACT clothes, Plaintiff navigated around a column located on the sidewalk to In Bd. of Regents of Univ. Sys. of Georgia v. Jordan, No. A15A1994, get to another rack of clothes and her foot stepped off the curb, causing 2016 WL 548368, at *1 (Ga. Ct. App. Feb. 12, 2016), the Georgia Court her to fall on the asphalt. Plaintiff testified that the clothes were hanging of Appeals affirmed a trial court's denial of the defendants' motions to down from the racks onto the sidewalk, the racks were lined up bumper transfer venue in lawsuits brought pursuant to Georgia Tort Claims Act. to bumper, and the racks were "right up against the curb," with no space When an action is brought under the Georgia Tort Claims Act against a between the racks and the curb. As a result of the fall, Plaintiff fractured State entity, even when the State entity is not the sole tortfeasor, the her C-6 vertebrae in the fall. mandatory venue provision of O.C.G.A. § 50-21-28 applies. The trial court granted Kmart's motion for summary judgment finding, as O.C.G.A. § 50-21-28 provides, in pertinent part, that "[a]ll tort actions a matter of law, that Kmart's configuration of the merchandise display did against the state under this article shall be brought in the state or superior not proximately cause Plaintiff's injuries and that Plaintiff failed exercise court of the county wherein the loss occurred[.]" According to the Court reasonable care for her own safety. of Appeals, the determinative factor for venue was the situs of the loss. On appeal, Plaintiff contended that the trial court erred in grant- The underlying facts were as follows. The parents of Cayleb Drayton ing summary judgment because there were material issues of fact as and the parents of Jonathan White filed separate lawsuits in DeKalb County to whether the curb was obstructed by the racks and clothing on the asserting claims for negligence under the Georgia Tort Claims Act against sidewalk. The Court of Appeals agreed with Plaintiff and reversed the the Board of Regents of the University System of Georgia and MCG Health, trial court's ruling. Inc., MCG Health System, Inc., the Medical College of Georgia Physician Relying on the Supreme Court's guidance in Robinson v. Kroger Co., Practice Group Foundation, and Georgia Regents Medical Associates, Inc., 268 Ga. 735, 748-749, 493 S.E.2d 403 (1997), the Court of Appeals held arising out of the medical care and treatment that their children received that "the 'routine' issues of premises liability, i.e., the negligence of the at the Children's Hospital of Georgia in Richmond County. After undergoing defendant and the plaintiff, and the plaintiff's lack of ordinary care for surgical procedures in Richmond County, the children were transferred to personal safety are generally not susceptible of summary adjudication, Children's Healthcare of Atlanta in DeKalb County, where they underwent and that summary judgment is granted only when the evidence is plain, multiple corrective surgeries requiring lengthy hospitalization. palpable, and undisputed..." The Court stated further that "here, 'the Although the alleged negligent acts or omissions that form the bases of issue [was] whether the factual evidence [was] plain, palpable, and the lawsuits occurred solely in Richmond County, the plaintiffs filed their undisputed that nothing obstructed [Plaintiff's] ability to see the [drop respective complaints in DeKalb County, where a substantial portion Spring 2016 43

Table of Contents for the Digital Edition of Verdict - Spring 2016

President’s Message
GTLA at 60: A Conversation with Tommy Malone
Law Practice and Cloud Computing: Staying Ethical in a Digital World
14 Years in the Making: Justice Delayed, but Not Denied
What is the Plaintiff’s Burden in Proving the Value of Medical Expenses?
An Introduction to Daycare Negligence Cases
Diminished Value Claims: Not Just for Cars Anymore
Seeking Justice for Victims of Child Sexual Abuse
Case Updates: What’s New?
Workers’ Comp: Recent Developments
Civil Justice PAC Contributors
Champion Members
Welcome New GTLA Members!
Notes: What’s New with GTLA Members
Index to Advertisers/

Verdict - Spring 2016