Recent Georgia Supreme Court Order Foreshadows Changes to Premises Liability Rules in Georgia
10/05/2023A few weeks ago, the Georgia Supreme Court quietly issued an Order in a premises liability case hinting at major developments for premises liability case law. Lynn B. Givens et al. v. Coral Hospitality-GA, LLC, No. S22G1043, 2023 WL 4156604 (September 14, 2023) (order available on this page).
The September 14, 2023, Order granted a Consent Motion to Withdraw Appeal in the matter of Lynn B. Givens et al. v. Coral Hospitality-GA, LLC after the case settled while on a discretionary appeal in front of the Court. Givens involved an incident where the plaintiff, Lynn Givens, tripped over a 1-inch lip of raised asphalt at the transition point between a sidewalk and a parking pad. The trial court denied the premises owner’s motion for summary judgment, but the Court of Appeals reversed, holding that the hazard was an open and obvious, static condition, located in plain view. Therefore, according to the Georgia Court of Appeals, Ms. Givens could not recover for her failure to observe it.
Ms. Givens petitioned for certiorari to the Georgia Supreme Court, which granted review of the case to address whether the Court of Appeals’ application of the plain view / open and obvious doctrine was consistent with the Supreme Court’s previous ruling in Robinson v. Kroger Co., 268 Ga. 735, 748(2)(B) (1997), which is the preeminent authority on premises liability cases in Georgia. While awaiting a ruling from Georgia’s highest court, however, the Givens case settled, leaving the Supreme Court without a genuine controversy to adjudicate. As required by procedural rules, the litigants notified the Court that the dispute had resolved, and the Supreme Court dismissed the appeal.
Interestingly, one of the Justices (Justice Pinson) took the time to author a concurring opinion as part of the dismissal, and this opinion was joined by Justice Peterson. While the opinion itself is not binding precedent, it raises some interesting questions about what changes may be in store, in particular as it relates to Georgia’s “plain view doctrine.”
There exists a long line of cases from the Georgia Court of Appeals stating that invitees cannot recover for injuries caused by open and obvious, static conditions that are located “in plain view.” In essence, the rule imposes a duty on an invitee “to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be.” This defense is frequently used by premises owners to argue for summary judgment, and it is typically grounded in evidence that nothing obstructed the invitee’s view of the hazard or that the invitee would have seen the hazard had she exercised ordinary care in avoiding it.
In the Order dismissing Givens, Justice Pinson expressed his concern that the plain view doctrine is based in a finding that the invitee failed to exercise ordinary care for his or her own safety, or stated differently, whether the plaintiff acted reasonably. According to Justice Pinson, who cited the Robinson opinion heavily in his Order, questions of reasonableness are reserved for the factfinder unless the evidence is “plain, palpable, and undisputed” that the tortfeasor did not act reasonably as a matter of law. Justice Pinson further elaborated by signaling a rejection of distinction between “static conditions” and “transient foreign substances” that has developed over the years in appellate cases. His order seems to indicate that the same analysis should apply to both types of alleged hazards.
As lawyers who have litigated countless premises liability cases involving cracked and broken pavement, we will be paying close attention to see how this issue unfolds. If cases involving every-day, static conditions like small cracks in settling pavement are no longer controlled by our understanding of “plain view doctrine” legal principles, we anticipate that summary judgment will become much more rare and unlikely in almost all premises liability cases.
By: Savannah Acheson