Knoeferl v. Cracker Barrel Old Country Store, Inc.

Filing 44

ORDER denying 35 Motion for Summary Judgment; denying 38 Motion for Hearing. Signed by Chief Judge J. Randal Hall on 3/20/2018. (pts)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

LINDA KNOEFERL,

*
*

Plaintiff,

*
*

V.

*

CV 116-152

*

CRACKER BARREL OLD COUNTRY

*

STORE, INC.

*
*

Defendant.

*

ORDER

Before

judgment.

the

Court

(Doc. 35.)

is

Defendant's

motion

for

summary-

The Clerk has given Plaintiff notice of

the summary judgment motion and the summary judgment rules, of

the right to file affidavits or other materials in opposition,
and

the

consequences

of

default.

Therefore,

the

notice

requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th
Cir. 1985) (per curiam), have been satisfied.

For the following

reasons. Defendant's motion is DENIED.

I.

BACKGROUND

Making all inferences in favor of Plaintiff, the facts of
this case are as follows.

On August 26, 2014, Plaintiff went to

lunch with her daughter at Defendant's restaurant.

Dep.,

Doc.

37-1,

at

29.)

After

being

unable

(Knoeferl

to

find

a

disability parking space. Plaintiff's daughter offered to drop

Plaintiff

(Id.)

off

at

the

restaurant's entrance

and

park

the

car.

After eating their meal and purchasing a few items in the

restaurant's gift shop, Plaintiff and her daughter left the
restaurant.

(Id.)

Rather than have her daughter pull around.

Plaintiff decided to walk to her car, which was parked on the

other side of the lot.

(I^ at 32.)

Plaintiff placed her purse

in the front seat of her car and when she turned around to open

the back door, she fell and broke her femur.

(Id. at 39)

Plaintiff alleges that an indentation in the pavement caused her
fall.

(I^ at 32.)

In the eleven years Defendant has owned the lot. Plaintiff
is the only person who had a trip and fall injury.
Aff., Doc. 37-2, UH 4, 10.)

(Brannon

Although Defendant does not have a

written policy regarding lot maintenance, twice a day, one of

Defendant's employees goes around the lot inspecting for debris
and other potential hazards.

(Id. H 18.)

Additionally, Steve

Brannon, manager of Defendant's restaurant, drives around the
lot every day to conduct a third inspection.
Doc. 41-1, at 13.)

Plaintiff's injury.
On

August

22,

Such inspections took place on the day of

(Brannon Aff., Doc. 37-2, t 20.)
2016,

alleging that Defendant,
ordinary

care

and

(Brannon Dep.,

was

Plaintiff

initiated

this

action

as landowner, breached its duty of
liable

for

Plaintiff's

injuries.

Defendant now moves for summary judgment arguing that Plaintiff

has failed to provide evidence showing Defendant knew about the
indentation, and that Plaintiff was not exercising ordinary care
when she fell.

II.

STANDARD

A motion for summary judgment will be granted if there is

no disputed material fact and the movant is entitled to judgment
as a matter of law.

Fed. R. Civ. P. 56(a).

Facts are material if

they could affect the results of the case.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty
The court must view

facts in the light most favorable to the non-moving party and
draw all inferences in its favor.

Ltd.

Matsushita Elec. Indus. Co.,

V. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The

movant initially bears the burden of proof and must demonstrate
the

absence

of

a disputed

material fact.

Catrett, 477 U.S. 317, 323 (1986).

Celotex

Corp.

v.

The movant must also show no

reasonable jury could find for the non-moving party on any of
the essential elements.

Fitzpatrick v. City of Atlanta, 2 F.3d

1112, 1115 (11th Cir. 1993).
If the movant carries its burden, the non-moving party must

come forward with significant, probative evidence showing there
is a material fact in dispute.

Id. at 1116.

The non-movant

must respond with affidavits or other forms of evidence provided

by Federal Rule of Civil Procedure 56.

Id. at 1116 n.3.

The

non-movant cannot survive summary judgment by relying on its

pleadings or conclusory statements.
1032, 1033-34 (11th Cir. 1981).

Morris v. Ross, 663 F.2d

After the non-movant has met

this burden, summary judgment is granted only if "the combined

body of evidence is still such that the movant would be entitled
to

a

directed

verdict

at

trial

-

that

is,

reasonable jury could find for the non-movant."

such

that

no

Fitzpatrick, 2

F.3d at 1116.

III.

DISCUSSION

Under Georgia law, a landowner who invites people onto its

property owes a duty of ordinary care to keep those premises
safe.

O.C.G.A. § 51-3-1.

claim,

a

plaintiff

must

To prevail on a premises liability

show

the

hazard

was

one

the

owner

"should have removed in the exercise of ordinary care for the

safety of

the invited

public."

Am.

Brown, 679 S.E.2d 25, 27-28 (Ga. 2009).

Multi-Cinema,

Inc., v.

In a "trip and fall"

case, the plaintiff must present some evidence that: (1) the
owner had actual or constructive knowledge of the hazard, and

(2)

the

plaintiff

reasonable care.

lacked

such

knowledge,

despite

exercising

McLemore v. Genuine Parts Co., 722 S.E.2d 366,

368 (Ga. Ct. App. 2012) (quoting Prikle v. Robinson Crossing,

LLC, 612 S.E.2d 83, 84 (Ga. Ct. App. 2005)).

"[T]he plaintiff's

evidentiary burden concerning the second prong is not shouldered
until

the

[land]owner

establishes

that

the

plaintiff

was

negligent, that is, she intentionally and unreasonably exposed
herself to a hazard of which she knew or, in the exercise of

reasonable care, should have known existed."

to the

second

plainly,

prong,

palpably

knowledge

of

we

and

the

determine

without

hazard

whether

dispute

equal

or

Id. ("With respect

the

that

record

shows

plaintiff

superior

to

that

had
of

defendants.").

A.

Defendant's Knowledge

Defendant argues that since no similar accident occurred on
its

property

Plaintiff

during

failed

to

the
show

eleven

years

constructive

it

has

been

knowledge.

owner.
However,

constructive knowledge can be inferred if there is evidence that
the owner did not have a reasonable inspection program.
V. Enmark Stations,

2011).

To

prevail

Inc., 712 S.E.2d 585, 588

at

summary

judgment

due

(Ga.

to

Landrum
Ct. App.

lack

of

constructive knowledge, the owner must show it had a reasonable

inspection policy which was followed on the day of the accident.
Matthews v. The Varsity, Inc., 546 S.E.2d 878, 880-81 (Ga. Ct.
App. 2001).

The parties do not dispute that Defendant had an inspection
procedure

that

was

followed

on

the

day

of

the

accident.

Instead,

the

question

is

procedure was reasonable.

whether

524

S.E.2d

Defendant

has

542,

Wallace v. Nissan of Union City,

544-45

introduced

inspection

Nevertheless, this question cannot be

decided by summary judgment.
Inc.,

Defendant's

(Ga.

evidence

Ct.

App.

showing

it

1999).

While

performed

daily

inspections, there is no evidence that Defendant's procedure is
reasonable as a matter of law.

Moreover, Defendant has failed

to demonstrate that the hazardous nature of the uneven pavement

could not have been revealed through a reasonable inspection

procedure.

Cf. Chastain v. CF Ga. North DeKalb, L.P., 569

S.E.2d

916

914,

(Ga.

Ct.

App.

2002)

(summary

judgment

was

appropriate where a reasonable inspection procedure could not
reveal the water that caused plaintiff's fall).
could

find

Defendant's

inspection

procedure

Because a jury
is

inadequate.

Plaintiff has presented evidence that Defendant had constructive
knowledge of the uneven pavement.
B.

Ordinary Care

Defendant

ordinary
exercised

care.

also

A

ordinary

claims

that

plaintiff
care

plaintiff's negligence.

when

Plaintiff

is

only

the

failed

required

defendant

to

to

show

she

establishes

the

McLemore, 722 S.E.2d at 368.

a defendant does not establish the

exercise

Moreover,

plaintiff's negligence

by

merely showing the plaintiff admitted she did not look where she

stepped.

Robinson v. Kroger Co., 493 S.E.2d 403, 414 (Ga.

1997).

Defendant
indentation

argues

Plaintiff

Plaintiff
tripped

cannot

over

was

recover

because

a ''trifling

the

defect."

Defendant relies on Long John Silver^s, Inc. v. Coleman, 479

S.E.2d 141, 142 (Ga. Ct. App. 1996), and argues that certain

hazards are essentially so trivial that they can never give rise
to liability.

Even accepting that Coleman stands for such a

proposition, subsequent state court decisions have held that
hazards like the one Plaintiff tripped over can give rise to

liability.

See, e.g., Bullard v. Marriott Int^l, Inc., 667

S.E.2d

911-12

909,

(Ga.

Ct.

App.

2008)

(refusing

to

grant

summary judgment after the plaintiff tripped over uneven brick
walkway); Jackson v. Waffle House, Inc., 537 S.E.2d 188, 191-92
(Ga. Ct. App. 2000) (refusing to grant summary judgment where

the

plaintiff

tripped

over

uneven

pavement).

Accordingly,

Defendant has not shown that it cannot be held liable for the

uneven pavement that allegedly caused Plaintiff's fall.
Defendant also argues that because Plaintiff successfully
traversed the uneven pavement shortly before her fall, she had

equal knowledge of that danger and therefore cannot recover for
her injuries.
successfully

Under the "prior traversal" rule, a plaintiff who
navigates

a

static

defect

"that

is

readily

discernable to a person exercising reasonable care for his own

safety" is presumed to have knowledge of that defect.

Joe

Enterprise/ LLC v. Kane^ 798 S.E.2d 97, 100-101 (Ga. Ct. App.

2017)

{internal

quotations

and

citations

omitted).

Here,

Plaintiff testified that she placed her purse on the front seat
of her car before she fell.

(Knoeferl Dep. at 39.)

Although

the uneven pavement was presumably near the car. Plaintiff's
statement does not show she crossed that exact spot when she set

down

her

purse

discernable.

or

that

the

uneven

pavement

was

readily

See Perkins v. Val D'Aosta, 699 S.E.2d 380, 382-83

(Ga. Ct. App. 2010) (plaintiff's prior traversal did not bar

recovery when hazardous nature of the curb was not readily
observable).

Since application of the "prior traversal" rule

would involve the resolution of a genuine issue of material
fact, summary judgment is not appropriate.
Plaintiff has demonstrated a genuine dispute as to whether

Defendant had constructive knowledge of the uneven pavement that

allegedly caused her fall.

See Section III.A., supra.

Since

Defendant has not shown that Plaintiff had equal knowledge of

that hazard and failed to exercise ordinary care. Defendant is

not entitled to summary judgment.^

^ Defendant's argument that Plaintiff's inconsistent testimony prevents her
from proving causation is meritless.
While Georgia courts construe
contradictory testimony against the plaintiff, that is a procedural rule and
therefore inapplicable to the Court's standard at summary judgment. See Hana
V. Plumer, 380 U.S. 460, 465 (1965) {holding that federal courts sitting in

diversity jurisdiction are bound by state substantive and federal procedural
law).
Moreover, while some pieces of Plaintiff's story may have changed,
8

IV. CONCLUSION

Upon the foregoing and in due consideration, Defendant's

motions for summary judgment (doc. 35) is DENIED.^
ORDER

ENTERED

at

Augusta,

Georgia,

this

day

of

2018.

jL,'^chief judge

UNITED ^TATES DISTRICT COURT
SOUTHE^ DISTRICT OF GEORGIA

Plaintiff was consistent in her deposition that an indent in Defendant's

parking lot caused her fall. (Knoeferl Dep. at 32, 47-48.)
^ Defendant has also moved for a hearing on its motion for summary judgment.
Because the Court can resolve all pending motions without a hearing.
Defendant's motion (doc. 38) is DENIED.