Stewart v. CBOCS Inc
Filing
25
ORDER granting 18 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 05/04/2012 (ajp).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
WINNIE K. STEWART,
*
Plaintiff,
*
vs.
*
CASE NO. 3:11-CV-64 (CDL)
CBOCS INC. d/b/a CRACKER BARREL *
OLD COUNTRY STORE,
*
Defendant.
*
O R D E R
Plaintiff Winnie Stewart (“Stewart”) alleges that Defendant
CBOCS, Inc. d/b/a Cracker Barrel Old Country Store (“Cracker
Barrel”) negligently maintained its premises and failed to warn
her of a dangerous display rack that caught her purse as she
attempted to walk by it, causing her to fall.
Presently pending
before the Court is Cracker Barrel’s Motion for Summary Judgment
(ECF
No.
18).
For
the
following
reasons,
Cracker
Barrel’s
motion is granted.
SUMMARY JUDGEMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P.
56(a).
Fed. R.
In determining whether a genuine dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc., 477
A fact is material if it is relevant or
necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
The facts, unless otherwise noted, are undisputed.
Stewart
visited
the
Cracker
Barrel
store
Georgia, on April 23, 2009 with her daughter.
in
Madison,
As she entered
the store, Stewart looked around at the merchandise displayed
throughout the store.
Def.’s Mot. for Summ. J. Ex. A, Stewart
Dep. 56:25-57:3, ECF No. 18-2.
Stewart saw a round display rack
with merchandise on it, and as she tried to pass by the display,
she became entangled in it and fell.
72:3.
Id. at 57:14-25, 71:16-
According to Stewart, the display “pulled on” her purse
and caused her to fall.
Id. at 72:1-6.
The display was “right
near [her] face” as she tried to pass, id. at 72:8-11, and she
saw the display had “little spokes” or “pegs” on it before she
fell, id. at 72:4-7, 77:3-7.
the
display
immediately
Although Stewart was looking at
preceding
her
fall,
id.
at
72:8-23,
76:12-16, Stewart did not move away from the display because she
“thought
Stewart
[she]
was
testified
safe”
that
she
to
pass
by
it,
id.
at
76:19-21.
considered
the
display
dangerous
2
because it was “too full” and the displays in the store were
“too close together.”
Id. at 95:15-97:16.
DISCUSSION
The Court applies Georgia law in this diversity action.
Erie
R.R.
Co.
v.
Tompkins,
304
U.S.
64,
78-80
(1938).
In
Georgia, landowners owe a duty to their invitees to exercise
reasonable care to keep their premises safe.
O.C.G.A. § 51-3-1.
To establish her negligence claim, Stewart must show “(1) that
[Cracker Barrel] had actual or constructive knowledge of the
hazard;
and
(2)
that
despite
the
[she]
exercise
of
lacked
ordinary
knowledge
care
due
of
the
to
actions
conditions within the control of [Cracker Barrel].”
Kroger
Co.,
268
Ga.
735,
748,
493
S.E.2d
403,
hazard
or
Robinson v.
414
(1997).
Cracker Barrel moved for summary judgment arguing that Stewart’s
knowledge
of
the
hazard
was
equal
or
superior
to
Cracker
Barrel’s knowledge of the hazard.1
The Court therefore must
“determine
plainly,
whether
the
record
shows
palpably[,]
and
without dispute that plaintiff had knowledge of the hazard equal
1
Although Cracker Barrel cited to evidence in its reply brief
attempting to show that it did not have actual or constructive
knowledge that the display could be hazardous, arguments made for the
first time in a reply brief are not properly considered by the Court.
Bank of Am., N.A. v. Mukamai (In re Egidi), 571 F.3d 1156, 1163 (11th
Cir. 2009). Further, because Cracker Barrel did not move for summary
judgment on this ground, the Court need not consider Stewart’s
argument that Cracker Barrel had actual or constructive knowledge of
the hazard because the display’s location violated the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq., or O.C.G.A. § 30-3-1, et
seq., which provides aisle accessibility guidelines.
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or superior to that of defendants or would have had equal or
superior knowledge had the plaintiff exercised ordinary care for
personal safety.”
McLemore v. Genuine Parts Co., 313 Ga. App.
641, 643, 722 S.E.2d 366, 368 (2012) (alteration in original)
(internal quotation marks omitted).
When a claim involves a
static condition, or “one that does not change and is dangerous
only if someone fails to see it and walks into it,” Becton v.
Tire King of N. Columbus, Inc., 246 Ga. App. 57, 59, 539 S.E.2d
551,
553
(2000),
a
proprietor’s
liability
is
based
on
its
superior knowledge of the condition, McLemore, 313 Ga. App. at
643, 722 S.E.2d at 368.
Consequently, if the invitee knows of
the condition, the proprietor has “no liability for resulting
injury
because
the
proprietor does.”
invitee
has
as
much
knowledge
as
the
E.g., id. (internal quotation marks omitted).
The Court finds that the undisputed evidence demonstrates
Stewart had actual knowledge of the display rack prior to her
fall.
Stewart acknowledged that she was looking at the display
rack immediately preceding her fall.
72:8-23, 76:12-16.
Stewart Dep. 57:14-25,
Stewart even saw the “spokes” or “pegs” on
the display rack prior to her fall.
Id. at 72:4-7, 77:3-7.
Since she had actual knowledge of the alleged hazardous static
condition before she fell, she cannot recover under Georgia law.
The
cases
distinguishable.
relied
upon
by
Stewart
are
easily
See, e.g., Baker v. Harcon, Inc., 303 Ga. App.
4
749, 753, 694 S.E.2d 673, 677-78 (2010) (finding a jury question
on plaintiff’s knowledge of the hazard where he previously told
defendant where to construct the trash chute that he later fell
through, but the evidence demonstrated he did not remember the
location of the chute on the day of his fall); Lore v. Suwanee
Creek Homeowners Ass’n, Inc., 305 Ga. App. 165, 170-71, 699
S.E.2d 332, 337-38 (2010) (noting that although the plaintiff
knew about the generally prevailing hazardous condition of a
sinkhole behind her house, there was no evidence that she had
knowledge
of
the
sinkhole
that
instability
collapsed
and
of
the
caused
ground
her
surrounding
injuries);
Nosiri
the
v.
Helm, 301 Ga. App. 380, 381, 687 S.E.2d 635, 637 (2009) (noting
that “while there [was] no question that [plaintiff] was aware
of the existence of the cell phone cord the day before her fall
and the other days that she moved it, there [was] no evidence
that she was aware of its exact position at the time that it
tripped her.”); Ward v. Autry Petroleum Co., 281 Ga. App. 877,
879-80, 637 S.E.2d 483, 486-87 (2006) (finding a jury question
on plaintiff’s knowledge of the hazard where he acknowledged
seeing the hose lying on the ground on the driver’s side of his
car,
but
he
denied
seeing
the
hose
lying
on
ground
on
the
passenger side of his car where he tripped over it); Myers v.
Harris,
257
Ga.
App.
286,
288,
570
S.E.2d
600,
602
(2002)
(noting that while the plaintiff had specific knowledge of the
5
hazard because she previously traversed the ramp where she fell,
that knowledge was not dispositive because plaintiff testified
that defendant’s crowded furniture showroom prohibited her from
seeing the edge of the ramp at the time of her fall).
Unlike
these cases, Stewart had actual knowledge of the exact location
and nature of the alleged hazard immediately preceding her fall.
Under
these
that
Cracker
hazard.
circumstances,
Barrel
had
no
reasonable
superior
jury
knowledge
could
of
the
conclude
alleged
Accordingly, Stewart’s claim fails as a matter of law.
E.g., Right Stuff Food Stores, Inc. v. Gilchrist, 279 Ga. App.
784, 786, 632 S.E.2d 405, 406 (2006).
CONCLUSION
For
the
foregoing
reasons,
Cracker
Barrel’s
Motion
for
Summary Judgment (ECF No. 18) is granted.
IT IS SO ORDERED, this 4th day of May, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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