Ct. of Appeals Reverses Summary Judgment

All too often the Georgia Court of Appeals becomes actively involved to deprive plaintiffs of pursuing their claims in court.  The opposite is true in this case.  The Court of Appeals reversed a motion for summary judgment granted in favor of the defendant in Stephens v. Kmart Corporation, No. A15A2211, Ga. App. March 22, 2016.

Nadine Stephens and her husband went to the Kmart store in Tifton on March 12, 2011 to make a payment on items that were being held in layaway.  She had visited the store on two or three other occasions, made a payment, and then left.  This time she browsed through clothing racks located on the sidewalk outside the store.

While looking at clothes, she navigated around a column on the sidewalk to get to another rack.  As she did so, she stepped off the curb and fell onto the asphalt, sustaining a fracture to one of her cervical vertebrae.

Stephens testified that the clothes were hanging down from the racks onto the sidewalk, that the racks were lined up bumper to bumper, and that the racks were right up against the curb, leaving no space between the racks and the curb.

After the accident, a manager on duty took Stephens’ statement, photographed the scene, and reported the incident to Kmart.  He testified it was his practice to initial and date his photographs before sending them to Kmart’s insurance carrier.  He identified an exhibit at his deposition as the photograph he had taken on the date of the accident, but it did not contain a date or his initials.

He also testified that Stephens had not complained about how the racks were set up or state she had fallen because the racks were too close to the curb.

A Kmart corporate representative testified that Kmart’s policy was to have a 36 inch clearance between all racks.

After a hearing, the Tift County Superior Court granted Kmart’s motion for summary judgment.  Plaintiff Stephens appealed.

Her primary argument on appeal was that there were material issues of fact as to whether the curb was obstructed by the racks and clothing on the sidewalk.  The Georgia Court of Appeals stated the issue was whether the factual evidence was plain, palpable, and undisputed that nothing obstructed Plaintiff’s view of the hazard and that it was or should have been visible to her.  It was her knowledge of the specific hazard that was determinative, not her knowledge of the generally prevailing hazardous conditions or the ones she observes and avoids.

Plaintiff knew there was a drop off at the curb.  She said it was impossible to determine where it was because of the position of the racks and the clothes.  The Court of Appeals noted that, as an invitee, she did not have to look at the ground continuously for defects, but she had a right to assume that Kmart had exercised reasonable care to make the premises safe.

Stephens testified the clothing and the racks prevented her from seeing where the sidewalk ended.  The corporate representative testified about Kmart’s policy, but there was no evidence that Kmart followed its policy on that particular day.  The store manager had a photograph, but it was not signed or dated in accordance with his customary practice.

The Georgia Court of Appeals ruled that, under all of these facts and circumstances, summary judgment was improper.  The Court of Appeals accordingly reversed the decision of the trial court, allowing the Plaintiff to have her day in court.