IN THE SUPREME COURT OF THE
STATE OF GEORGIA
HENRIETTA ROBINSON, Petitioner,
v.
THE KROGER COMPANY, Respondent.
CASE NO. S97C0065

BRIEF OF THE AMICUS CURIAE COMMITTEE
GEORGIA TRIAL LAWYERS ASSOCIATION

The Georgia Trial Lawyers Association respectfully submits this brief in support of the position of Petitioner Henrietta Robinson.

Rule 42 Disclosure. Amicus Georgia Trial Lawyers Association is an association comprised of members of the State Bar of Georgia which is committed to the preservation of the jury system. The Association, through its Amicus Curiae Committee, frequently submits brief in favor of or in opposition to positions taken in the courts on a variety of issues.

ARGUMENT AND CITATION OF AUTHORITY

Introduction
This amicus is deeply grateful to the Court for granting certiorari to determine the level of care that suffices for a plaintiff to prevail against a motion for summary judgment. Under the present contradictory standards, plaintiffs' attorneys must frequently litigate a slip and fall case all the way to the Court of Appeals simply to determine whether the claim is viable, whereas we should be able to screen the cases in initial client interviews and appeals to the Court of Appeals should be no more frequent than they are in car wreck cases.
As we see it, this Court has essentially two options:

(1) The Court can restore comparative negligence as the standards for deciding these cases. This was the predominant standard until around 1980, and it authorized summary judgment only where the plaintiff recklessly tested a known and obvious hazard.

(2) Alternatively, the Court can endorse the Court of Appeals' trend since 1980, which reached its zenith (or nadir) with Smith v. Wal-Mart Stores, Inc., 199 Ga. App. 808 (1991). This trend, which will be referred to as the "visible defect" rule, holds that a plaintiff fails to exercise ordinary care, as a matter of law, if she could have seen a defect had she looked. It goes beyond even an "open and obvious defect" rule and makes visibility, not obviousness, the standard for summary judgment. Under this trend, mere visibility of the defect establishes not just that the plaintiff failed to exercise ordinary care, not just that the plaintiff's negligence could be found by a jury to exceed the defendant's negligence, but that no reasonable person in a jury box could believe otherwise. If the Court endorses this trend, premises liability cases will simply disappear. Absent legislative intervention, plaintiffs' attorneys can simply advise prospective clients that there is no liability for anything other than trap doors and give them a copy of the Court's opinion to prove it.

In section 1, this brief will address the standard that we contend should be applicable. In section 2, we will critique the "visible defect" rule.

§ 1.

THE COURT SHOULD RESTORE COMPARATIVE NEGLIGENCE, RATHER THAN THE OBVIOUSNESS OF THE DEFECT, AS THE TEST FOR DETERMINING A PLAINTIFF'S STANDARD OF CARE.

 

This amicus respectfully submits that the rules for determining whether a plaintiff may recover in a "slip and fall" type of premises liability case, and for granting summary judgment in such cases, should be the following:

1. If an invitee recklessly tests an observed or clearly obvious peril, or voluntarily assumes a position of imminent danger, the invitee may not recover. In other cases, an invitee who is negligent and whose negligence contributes in injuring the invitee may recover only if the negligence of the owner or occupier of land exceeds the negligence of the invitee.
2. A peril is clearly obvious to the invitee under Rule 1 only if it would necessarily be seen by any person exercising ordinary care in the same circumstances. A peril may not be deemed clearly obvious merely because the peril is obvious in hindsight, or because the peril would have been obvious from a different perspective or in different lighting conditions, or because the peril could be seen if one were looking for it.

3. An invitee recklessly tests a peril under Rule 1 when the invitee consciously disregards a substantial risk to the invitee's safety.

Summary judgment should be awarded only if no reasonable person, including reasonable shoppers, could disagree. The standard should not be one of hindsight. Instead, a Court should consider the behavior of ordinary shoppers under the same or similar circumstances as some evidence of the standard of ordinary care for the plaintiff shopper.

Now follow comments on these rules.

Rule 1: Summary judgment based on recklessly testing a known or clearly obvious peril. Numerous cases can be cited for application of this standard to decide whether summary judgment is appropriate in a premises liability case. "Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law." Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465, 467 (1996); Union Camp Corp. v. Dukes, 217 Ga. App. 95, 98 (1995); Brown v. Who's Three, Inc., 217 Ga. App. 131, 137 (1995); Parker v. Johnson, 214 Ga. App. 875, 877 (1994); Lowe v. Macerish Real Estate Co., 213 Ga. App. 299, 300 (1994); Wade v. Mitchell, 206 Ga. App. 265, 270 (1992); Spivey v. Board of Education of Savannah and Chatham County, 194 Ga. App. 726, 727 (1990); Fowler v. Campbell, 191 Ga. App. 872, 872 (1989); Oliver v. Complements, Ltd., 190 Ga. App. 30, 32 (1989); Fagan v. Atnalta, Inc., 189 Ga. App. 640, 461 (1988); Holbrook v. Prescott, 166 Ga. App. 588, 589 (1983); Batson-Cook Co. v. Shipley, 134 Ga. App. 210, 213 (1975); North DeKalb Little League v. Holland, 119 Ga. App. 439, 440 (1) (1969); Herrington v. Stone Mountain Memorial Assn., 119 Ga. App. 658, 661 (1969); Brown v. Iocovozzi, 117 Ga. App. 693, 695-96 (1968); Kreiss v. Allatoona Landing, Inc., 108 Ga. App. 427, 437 (1963); Carroll EMC v. Simpson, 106 Ga. App. 29, 29 (1962); Clayton v. Steve-Cathey, Inc., 105 Ga. App. 570, 573 (1962); Burns v. Great A. & P. Tea Co., Inc., 105 Ga. App. 823, 824-25 (1962). This rule, which is also frequently stated in car wreck cases and other tort cases, is bedrock in Georgia tort law. It should be the fundamental standard for deciding whether summary judgment can be granted as a matter of law.

This Court established that comparative negligence applies even where a defect is patent (another word for "visible"), in Wynne v. Southern Bell Tel. Co., 159 Ga. 624 (1924). The plaintiff is not negligent as a matter of law because the defect is patent:

"Where the owner or occupier of premises fails to exercise ordinary care in keeping reasonably safe such premises for the use of those who go upon them as invitees, and where such an invitee is injured by a patent defect in such premises of which the injured party has no actual knowledge it can not be held as a matter of law that such injured party was lacking in ordinary care in failing to observe the defect in time to avoid the injury."

Instead, the rules of comparative negligence would apply:

Failure to exercise ordinary care by a plaintiff before the negligence complained of was apparent, or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured.

159 Ga. at 629. See also Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 732-33 (1966), and Wakefield v. A. R. Winter Co., Inc., 121 Ga. App. 259, 262 (1970), for the proposition that comparative negligence rules apply in premises liability cases involving patent defects.

The decades of comparative negligence in premises cases carry significance for the ultimate issue in this case. Comparative negligence expresses an understanding that the plaintiff's duty is not so stringent as to require her to conduct herself as perfect being, constantly aware of all surroundings and instantly aware of all risks, but simply as an ordinary, average person subject to the foibles, momentary forgetfulness, occasionally errant conduct, and lures of inattention, that affect other ordinary, average people. The visible defect rule, on the other hand, recognizes only perfect plaintiffs who always see and appreciate all "open and obvious" dangers.

Under comparative negligence, even actual knowledge of a defect does not end the inquiry. "Knowledge of the presence of [a defect] would impose upon the plaintiff the duty of exercising that degree of care commensurate with [his] knowledge, but would only be a circumstance to be considered by the jury along with all others in determining if the plaintiff exercised due care for [his] own safety." Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 193 (1974); Telligman v. Monumental Properties, Inc., 161 Ga. App. 13, 17 (1982). Cf. Reid v. Southern Bell Tel. Co., 182 Ga. App. 524, 525 (1987). Knowledge alone would not (and thus obviousness alone should not) bar a claim for a number of reasons. One set of reasons appears in City of Silvertown v. Harcourt, 51 Ga. App. 160 (3) (1935): "

(a) A [plaintiff] may know of the existence of the defect, yet his knowledge may be slight, remote, imperfect, or insufficient to give a full appreciation of the danger. ... [Cits.] (b) Or the [plaintiff] may have at some previous time observed the defect, and yet the circumstances might be such as would excuse his temporary forgetfulness in not remembering and looking out for it. [Cit.] (c) Or the [plaintiff], although having knowledge of the existence of the defect, may be unaware of the particular latent and concealed dangerous condition connected therewith which occasioned injury. [Cit.] (d) Or the [plaintiff] may be confronted with some sudden emergency, with no time for deliberation or the exercise of his full judgment."

In Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 623 (1980), this Court mentioned several circumstances where the invitee's failure to apprehend the danger is excused. These include moments of stress or excitement, occasions when the invitee's attention has been diverted, and a proprietor's acts in setting up a distraction. In the context of shopping, a very common reason for failing to see a patent defect is that the plaintiff is looking at the items she wishes to purchase.

The merchant is fully aware - or should be cognizant that the usual shopper travels the aisles with his attention directed toward the item he seeks and the prices of the displayed articles. The merchant deliberately attempts to draw the shopper's attention to selected items that he places on sale or features by signs, price cuts, or other displays.

Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 429- 30 (1979). Thus large objects that "are not in any way concealed but [are] located ... within inches" of a food display, though obvious, may result in liability in case a customer, distracted by the display, runs into it. Stenhouse v. Winn Dixie Stores, Inc., 147 Ga. App. 473, 474, 475-76 (1978).

Rule 2: Obvious Dangers. The second proposed rule would qualify the meaning of "obvious" for purposes of granting summary judgment. Many things are obvious in hindsight, from different perspectives, or if one is looking for them. As shown in the following cases, the standard for whether an object was so obvious that a plaintiff's suit would be barred as a matter of law is whether the object was of a sort that would necessarily be seen.

"If a hazard is open, obvious, and apparent to sight, so that one looking would necessarily see it, the fact that a plaintiff fails to look does not relieve her of responsibility for her own misfortune." Jones v. Braswell Electric, Inc., 219 Ga. App. 218, 219 (1995) (italics added). "Where an obstruction is in some way hidden, camouflaged or intrinsically unsafe, the question of ordinary care should be one for the jury. But where the evidence shows that the object is most obvious and apparent to sight, so that one looking ahead would necessarily see it, the fact that a plaintiff merely failed to look will not relieve him from responsibility for his own misadventure." Bodenheimer v. Southern Bell Tel. Co., 209 Ga. App. 248, 249 (1993) (punctuation omitted, emphasis added). Similar statements appear in Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 240-41 (1990); Paul v. Sharpe, 181 Ga. App. 443, 446 (1987); Jones v. Richardson, 178 Ga. App. 49 (1986); Forde v. C & S Georgia Corp., 178 Ga. App. 400, 403 (1986); Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 429 (1979); Tate v. Gibson Products Co., 137 Ga. App. 615, 616 (1976); Willis v. Byrd, 116 Ga. App. 555, 558 (1967); McGinty v. Laird, 115 Ga. App. 704, 707 (1967).

In Clayton v. Steve-Cathey, Inc., 105 Ga. App. 570, 573 (1962), the Court stated that summary judgment would be appropriate under the "recklessly testing an obvious peril" standard only if the "defective conditions of floors are obvious under ordinary circumstances, if ordinary care is employed in using the sense of sight and where such conditions are so obviously dangerous that no person of ordinary prudence while in the exercise of ordinary care would use the floor" (italics in the original).

Whether a defect is obvious should not be determined by hindsight. "Negligence is predicated on what should have been anticipated, on faulty or defective foresight rather than on hindsight which reveals a mistake." Wilkerson v. Alexander, 208 Ga. App. 83, 85 (1993); Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (1976). Furthermore, for the same reason, a defect should not be judged obvious from any other perspective than the one (or those) by which the plaintiff encountered it. Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 2 (1993) (third's party's seeing defect from standing position after fall was not dispositive of plaintiff's negligence prior to fall); Sain v. K-Mart Corp., 190 Ga. App. 751 (1989) (appearance to plaintiff does not determine appearance to the defendant); Pennington v. Cecil N. Brown Co., 187 Ga. App. 621, 625 (1988) (appearance to others does not determine appearance to plaintiff); Raborn v. Richmond County Hosp. Auth., 134 Ga. App. 153, 155 (1975) (same).
Finally, and most importantly for this appeal, whether a defect is so obvious that it must necessarily be seen is not to be determined merely by proof that it was visible, or that it would have been seen had the plaintiff looked for it. As stated in Food Giant, Inc. v. Cooke, 186 Ga. App. 253 (2) (1988) (cited by this Court with approval in Barentine v. Kroger Co., 264 Ga. 224, 225 (1994)),

2. In her deposition, appellee stated that, had she been looking at the floor, she would have seen the oil before stepping into it. Placing its reliance upon this statement, appellant moved for summary judgment on the ground that appellee's failure to exercise ordinary care for her own safety was the proximate cause of her fall. The trial court's refusal to grant appellant's motion on this ground is enumerated as error.

The mere fact that appellee was not looking ahead does not demand a finding that she was not exercising ordinary care for her own safety. "`Looking continuously, without intermission, for defects in a floor is not required in all circumstances. [Cits.] "What is `a reasonable lookout' depends on all the circumstances at the time and place."' [Cit.]"

186 Ga. App. 256-57 (emphasis added), citing Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 262-263 (1970) and Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (1976). Making the same point are those case decided on the principle that a plaintiff is not required to look constantly for defects on the floor: Newell v. Great A & P Tea Co., 222 Ga. App. 884, 884-85 (1996); Chaves v. Kroger, Inc., 213 Ga. App. 348, 350-51 (1994); Pinkney v. VMS Realty, Inc., 189 Ga. App. 177, 178-79 (1988); Fletcher v. Family Center, Inc., 169 Ga. App. 376, 377 (1983); Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733-34 (1966); and cases cited in those cases. This Court's decision in Barentine v. Kroger Co., 264 Ga. 224 (1994), continues this line of cases that refuses to bar a claim simply because the defect would have been visible had the plaintiff looked at it.1

Beginning with Smith v. Wal-Mart Stores, Inc., 199 Ga. App. 808 (1991), however, a large majority of decisions in the Court of Appeals on this issue has reached the opposite conclusion, i.e., that any defect that is visible is therefore obvious and therefore something that would necessarily be seen by anyone using ordinary care. These will be critiqued in Section 2.

The Supreme Courts of many states in recent years have rejected the "open and obvious danger" rule in favor of a comparative negligence standard for reasons that are applicable here in Georgia.2 All of these cases observe that the rule is a vestige of contributory negligence that is incompatible with a comparative negligence system.

The Texas Supreme Court cited seven reasons to reject the rule in Parker v. Highland Park, Inc., 565 S.W.2d 512, 517-521 (1978), noting especially that the rule "has contributed confusion which has defied the efforts of our best scholars at explanation and application," id., 517, the rule "is so elusive that precedent is non-predictive and unhelpful", id. 518, and that "premises cases are more easily tried under ordinary negligence and contributory negligence principles." Id., 519.3 Because of enormous conflicts in the law due to many recent (post-1980) decisions of the Court of Appeals, we who handle typical "slip and fall" premises liability cases have virtually no way to know whether a given case is viable short of a Court of Appeals decision establishing the law of the case.

The Texas Court further described the rule as "a harsh doctrine [that] imports a distrust of juries." Id., 518-519. The Court explained its rejection of the rule, and the factors that make obviousness less than determinative, in the following way:

There are many instances in which a person of ordinary prudence may prudentially take a risk about which he knows, or has been warned about, or that is open and obvious to him. ... One's conduct after he is possessed of full knowledge, under the circumstances may be justified or deemed negligent depending upon such things as the plaintiff's status, the nature of the structure, the urgency or lack of it for attempting to reach a destination, the availability of an alternative, one's familiarity or lack of it with the way, the degree and seriousness of the danger, the availability of aid from others, the nature and degree of the darkness, the kind and extent of the warning, and the precautions taken under the circumstances by a plaintiff in walking down the passageway. Those are matters which bear upon "the reasonableness of an actor's conduct in confronting a risk ... under principles of contributory negligence."

... A condition that is open and obvious is proof of knowledge and appreciation as a matter of law .... Knowledge and appreciation, though proved as a matter of law, do not necessarily establish contributory negligence as a matter of law. [Id., 520, 521.]

The Iowa Supreme Court explained why liability may accrue despite the obviousness of a defect thus:

Defects in premises which are in no sense hidden and could only be classified objectively as open and obvious, may be of such nature that the possessor should know the invitee would not anticipate or guard against them in using the premises within the scope of the invitation. To arbitrarily deny liability for open or obvious defects and apply liability only for hidden defects, traps or pitfalls, is to adopt a rigid rule based on objective classification in place of the concept of the care of a reasonable and prudent man under the particular circumstances.

... An open or obvious defect might be the equivalent of a trap or pitfall simply because the possessor should know that the invitee would have no reason to anticipate it, appreciate the hazard created by the condition or guard against it.

Hanson v. Town & Country Shopping Center, Inc., 144 N.W.2d 870, 874 (Iowa 1966).

The New Mexico Supreme Court focused on the proprietor's foreseeability that an invitee might still encounter an obvious defect, observing that

Simply by making hazards obvious to reasonably prudent persons, the occupier of premises cannot avoid liability to a business visitor for injuries caused by dangers that otherwise may be made safe through reasonable means. A risk is not made reasonable simply because it is made open and obvious to persons exercising ordinary care. ... Moreover, we think that some degree of negligence on the part of all persons is foreseeable, just like the inquisitive propensities of children, and thus, should be taken into account by the occupant in the exercise of ordinary care.

Klopp v. Wackenhut Corp., 113 N.M. 153, 824 P.2d 293, 297 (1992).

 

The Mississippi Supreme Court illustrated the irrationality of the rule.

This Court should discourage unreasonably dangerous conditions rather than fostering them in their obvious forms. It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at the same time deny a plaintiff recovery from a breach of that same duty.

Tharp v. Bunge Corp., 641 So.2d 20, 25 (Miss. 1994).

The Idaho Supreme Court stated that "the major flaw with granting defendants' summary judgment motion based on the open and obvious danger doctrine [is that] a judge not a jury, is thereby ruling on quintessential issues of fact such as whether the injured party knew, or should have known of the danger, the obviousness of the danger, whether there was a justifiable reason for confronting the danger, and so on." Harrison v. Taylor, 115 Ida. 588, 768 P.2d 1321, 1328 (1989).

Authority and reason alike mandate that a plaintiff cannot be found guilty of contributory negligence as a matter of law unless the defect is something that must necessarily be seen by anyone exercising ordinary care and unless the plaintiff recklessly encountered the peril.

Rule 3: Recklessness. This amicus submits that the concept of recklessness should be elaborated to avoid the loose construction placed on it in the recent past by occasional decisions of the Court of Appeals. Recklessness if often defined in terms of consciously disregarding a substantial and unjustifiable risk. Ward v. State, 252 Ga. 85, 88 (1984); OCGA § 16-5-60.

§ 2

.THE RULE REQUIRING A PARTY TO SEE AND FULLY UNDERSTAND ALL VISIBLE DEFECTS SHOULD BE REJECTED.

 

Recent rulings by the Court of Appeals applying its visible defect rule render the law ridiculous. Here is a sampling.

Under recent rulings of the Court of Appeals, a shopper who admits that she was looking at an item on a shelf "thus, was not watching where she was walking," and thus was not exercising ordinary care. Moore v. Winn-Dixie Stores, Inc., 214 Ga. App. 157, 159 (1994). The shopper lost for daring to walk toward an item on a shelf in her line of sight without constantly monitoring the floor. As a matter of law, she had no right to walk while looking at merchandise at eye-level. She was permitted by law to walk or look, but she was forbidden by law to walk and look at the same time. Thus, as a matter of law, eye-level changes depending on whether one moves or is stationary. At rest, eye-level is about the height of one's eyes. In motion, eye-level is at the level of one's feet. As a matter of law. No reasonable person would disagree.

A shopper who is "looking straight ahead" and "just paying attention" also deserves to lose. Why? Because she is not "looking down." Moore v. Kroger Co., 221 Ga. App. 145, 146 (1996). A shopper may not dare to "look straight ahead" while walking, even in order to avoid bumping in to other people. Colevins v. Federated Dept. Stores, Inc., 213 Ga. App. 49, 52 (1994). Most people think that they can see the floor perfectly well while looking straight ahead and paying attention because they have peripheral vision. Under this rule, however, they are deluding themselves. As a matter of law, if they are looking "straight ahead" they cannot see the floor because that is looking "down." And one cannot look at two things at once, can one? Thus, shoppers who happen to have peripheral vision are not entitled to use it. Just as if they had tunnel vision, their focus must be on the floor, Bruno's, Inc. v. Pendley, 215 Ga. App. 108, 108-9 (1994), and it is just too bad if other shoppers are injured.
A shopper who dares to walk and read aisle number signs at the same time has "of her own volition elected to look at the aisle sign as she walked rather than stopping to read the sign," McIntyre v. Pic & Save Drug Co., Inc., 213 Ga. App. 58, 60 (1994) (italics added), and loses for the same reasons. If she is going to take her eyes off the floor to get her bearings, she must stop. Though no case has yet so held, it logically follows that one must stop to read the labels on each can of peas, or corn, or carrots, etc., while one is looking for lima beans. As a matter of law. Looking at the labels of all of them as we move would require that we take our eyes off the floor, and that would be too dangerous. Perhaps we should stop our cars on the interstate to read road signs too?
Aleksandr Solzhenitsyn reports that, when political prisoners were allowed brief walks in some Stalinist interrogation prisons, they were forbidden to lift up their heads to the sky and were ordered, "Look at your feet!"4 Solzhenitsyn treats this as just another example of intimidation, but under the visible defect rule it is no more than sage teaching for the prisoners' comfort and safety.

A shopper must also learn a new lingo. Asked in a deposition what he was doing at the time of the fall, a shopper says that he was going for a soda. Asked whether he was distracted by anything, he may think that his negative answer will be interpreted as stating that no third person or object turned him from his pursuit. Had he realized at the time that, under recent rulings of the Court of Appeals, the first priority for his eyes in a store is to monitor the floor and only secondarily to look for things to buy, he would know to translate his thoughts as "I was distracted by looking for a soda." But, in Harper v. Kroger Co., 212 Ga. App. 570 (1994), it was too late to say so in an affidavit in response to a motion for summary judgment, because the Court will deem the two statements in conflict, and will apply the contradictory testimony rule to find that there was no distraction as a matter of law. Of course, even if he had known to say that he was distracted by the things to buy (as in, "Gosh, I was just minding my own business watching the floor and all of a sudden these things to buy were all around me and they distracted me"), he would still have failed because "looking at things to buy" is deemed to be a "self-induced distraction." Moore v. Kroger Co., 221 Ga. App. 520, 522 (1996). Never mind that the defendant store placed those items there and hoped to get people to look at them as the first step on the path to buying them. The customer voluntarily elected to look at those things and walk toward them, and the store can't help it if its customer is so reckless. The customer is exclusively to blame (the "sole proximate cause") for letting himself be distracted by things to buy. Of course, the store doesn't control the customer's sight in any way. Everything he does, he "voluntarily elects" to do. All distractions are "self-induced" distractions.

Enough. The visible defect rule is simply false to human nature, to the nature of ordinary human beings. It does not recognizethe reality of everyday life, in which perfectly "reasonable" people fail to look straight down at the floor all the time. Instead, they look ahead or around, at a view that encompasses the floor but does not necessarily focus on it unless they are warned that the floor is particularly dangerous.

Greeley v. A. G. Spanos Cos., 223 Ga. App. 783, 784 (1996). It is inconsistent with the recognition thatAn invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects. Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place." ... It is clear however, that the controller of the premises has a duty to inspect said premises and to maintain a premises safe from patent defects for the protection of invitees.Bodenheimer v. Southern Bell Tel. Co., 209 Ga. App. 248, 249 (1993). See also Food Giant v. Cooke, 186 Ga. App. 253, 257 (1988); Wynne v. Southern Bell Tel. Co., 159 Ga. 624 (4) (1924); and Wakefield v. A. R. Winter Co., Inc., 121 Ga. App. 259, 263 (1970) ("What the law exacted of [the invitee] ... was only the ordinary prevision to be looked for in a busy world."). Thus, like every other category of litigant in this state, an invitee is not held to a standard of absolute care, of seeing every patent defect, but the visible defect rule holds the plaintiff to an absolute standard of constantly monitoring the floor and instantly processing the sense impressions to form an accurate determination of danger. Under general negligence law "all the circumstances" determine whether an invitee acted reasonably, but the visible defect rule looks at one circumstance and one circumstance only: Was the defect visible? Would she have seen it if she had looked?

Until the Court of Appeals began applying the visible defect rule in Smith v. Wal-Mart Stores, Inc., 199 Ga. App. 808 (1991), an invitee was not required to observe all patent defects because she was entitled to rely on the proprietor's exercise of ordinary care to provide safe premises.

An invitee, in coming upon land, may rely upon the discharge by the owner of his duty to exercise ordinary care to keep the premises safe; and, therefore, the invitee is not necessarily and as a matter of law guilty of negligence and a failure to exercise due care for his own safety in failing to discover a patent defect in the premises which renders it unsafe for persons coming upon the premises. Therefore, if a defect, though patent, is not of such a nature and character as to be necessarily seen, in the exercise of ordinary care by a person coming upon the premises and who has a right to rely upon the duty of the owner or occupier of the premises to keep them safe, an invitee coming upon the premises, who, without observing such defect, is tripped by it and injured, is not, as a matter of law, guilty of negligence in not observing this defect.

Paul v. Sharpe, 181 Ga. App. 443, 446 (1987). The invitee was entitled to assume a safe environment as part of the quid pro quo of doing business with the merchant. Under the visible defect rule, however, the invitee may assume nothing more than the burden of watching the merchant's floors constantly, a bigger burden, in fact, than the burden of the store's employees, who are paid among other things to keep the floors safe, but whose surveillance once every 10-15 minutes is deemed sufficient to discharge their obligation as a matter of law. Mazur v. Food Giant, Inc., 183 Ga. App. 453, 453-54 (1987).

The visible defect rule converts business invitees into licensees or trespassers to whom no duty is due other than the duty not to set traps or maintain known hidden defects. If an invitee is held to the standard of seeing all visible defects, then she can recover only for the invisible ones. And since the proprietor would not be liable for unknown invisible defects, it can be liable only for the known hidden defects. And thus, under the visible defect rule, a merchant has essentially the same duty to its customers as it does to its burglars. Trammell v. Baird, 262 Ga. 124, 125-26 (1992).

The justifications advanced for the visible defect rule do not hold water. It has been argued that the visible defect rule follows from case law requiring a plaintiff to "make use of all her senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to her." Greeley v. A. G. Spanos Cos., 223 Ga. App. 783, 786 (1996) (dissent). No. Nobody challenges that proposition. This amicus challenges only the interpretation of it that ignores the qualifiers "reasonable" and "ordinary." "Reasonable" does not mean "absolute," and "ordinary" does not mean "extraordinary." What ordinary reasonable people do is at least strong evidence of, if not constitutive of, the duty to use one's senses in reasonable measure. The duty imposed by this rule is not equivalent to a duty "to make use of all her senses in whatever measure that will guarantee that she discover and avoid those things that might cause hurt to her." If the qualifiers "reasonable" and "ordinary" are to be given more than lip service, those quintessential jury issues will rarely be decidable by a judge reading a transcript.

It has also been suggested that the visible defect rule is a consequence of the equal duty of ordinary care imposed alike on the plaintiff and defendant. This is superficially plausible, but it ignores that the parties are to exercise ordinary care in doing two different things: one to keep the floor safe, the other to shop. This principle has been stated most clearly in "street and sidewalk" cases in responding to the contention that a pedestrian should have seen whatever a city should have seen. To paraphrase one of them, Wilson v. City of Atlanta, 63 Ga. 291, 294, 295 (2) (1879):

"While, in respect to its [business premises], a [proprietor] and [an invitee] are alike bound to ordinary diligence, yet the diligence of the former has relation to keeping the [premises] in safe condition and repair, and that of the latter has relation to walking [through it] in proper manner and with due caution. ... [I]ndeed, the diligence appropriate to the one class is so different from that appropriate to the other, that there is difficulty in comparing them, one being the diligence of preparation, and the other the diligence of use.

"See also Idlett v. City of Atlanta, 123 Ga. 821, 823 (1905) (the diligence of plaintiff and defendant does "not imply a like degree of vigilance in foreseeing danger and guarding against it."); Mayor of Cordele v. Jeter, 9 Ga. App. 348 (1911) (ordinary diligence may require a city to be more actively alert to discover and remedy defects than a pedestrian); Glover v. City Council of Augusta, 83 Ga. App. 314, 315 (1951). Those cases show that an equal opportunity to know the hazardous condition, even if patent, neither relieves the party who is responsible for the premises of its duty of care nor bars the plaintiff as a matter of law.

Conclusion

Summary judgment, "wisely used, is a praiseworthy time-saving device. But, although prompt dispatch of judicial business is a virtue, it is neither the sole nor the primary purpose for which courts have been established. Denial of a trial on disputed facts is worse than delay." Wakefield v. A.R. Winter Co., Inc., 121 Ga. App. 259, 261 (1970).5 Overuse of summary judgment procedure has constitutional ramifications for the exercise of power in this state. Service Merchandise, Inc. v. Jackson, 221 Ga. App. 897, 898-99 (1996).

This amicus respectfully submits that the following statement accurately states the questions that should be resolved by a jury rather than a court.

Whether the alleged defects caused the plaintiff's fall and resulting injuries, and whether or not the defendant actually knew of the alleged defects, or in the exercise of ordinary care should have discovered and repaired them or warned the plaintiff of their presence, or whether the plaintiff in the exercise of ordinary care for her own safety should have discovered the defects in the floor and avoided them, are all questions for determination by the jury.

Martin v. Henson, 95 Ga. App. 715, 737 (1957). If there is viable evidence of the defendant's negligence, the case should be removed from the jury only if it can be shown beyond doubt that the plaintiff recklessly tested a known or obvious peril.

Respectfully submitted, this April ____, 1997.

/s/ CHARLES M. CORK, III
REYNOLDS & McARTHUR
P. O. Box 6897
Macon, Georgia 31208-6897
(912) 741-6000

Footnotes

1. In the product liability context, this Court has recently rejected earlier decisions that a manufacturer cannot be liable for products simply because their dangers are patent, open and obvious, though such characteristics are factors in weighing the risks and utility of products. Banks v. ICI Americas, Inc., 264 Ga. 732, 736 n. 6 (1994). By parity of reasoning, an invitee's knowledge of a defect and the obviousness of a defect should be important factors in determining a proprietor's liability, but they should not be determinative in all cases as a matter of law.

2. This list is probably not exhaustive: Hanson v. Town & Country Shopping Center, Inc., 114 N.W.2d 870 (Iowa 1966); Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978); Woolston v. Wells, 297 Or. 548, 687 P.2d 144 (1984); O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo. 1985); Cox v. J. C. Penney Co., Inc., 741 S.W.2d 28 (Mo. 1987); Donahue v. Durfee, 780 P.2d 1275 (Utah App. 1989); Harrison v. Taylor, 115 Ida. 588, 768 P.2d 1321 (Ida. 1989); Riddle v. McLouth Steel Products Corp., 182 Mich. App. 259, 451 NW.2d 590 (1990); Klopp v. Wackenhut Corp., 113 N.M. 153, 824 P.2d 293 (1992); Tharp v. Bunge Corp., 641 So.2d 20 (Miss. 1994).

3. One example of the current confusion appeared in a concurring opinion in Blake v. Kroger Co., 224 Ga. App. 140, 146-47 (1996), in which it was suggested that a poor job of mopping that left a slick spot on the floor might be "a species of constructive knowledge." Instead of attempting to fit a square peg into a round hole, an analysis of sloppy mopping as "negligence" rather than "knowledge" would be straightforward.

4. A. Solzhenitsyn, The Gulag Archipelago, Vol. 1, p. 480, Harper & Row, 1973.

5. Even worse is the tendency of the Court of Appeals to be influenced by the moving party's facts that the opposing party contradicts. In footnote 1 of the Court of Appeals' decision in the instant case, it notes that the defendant's employee saw the plaintiff bracing herself and then start rolling, though the testimony was contradicted by the plaintiff. Citing such testimony can have no other purpose than to show that it was significant to the Court of Appeals. Jury trials, not summary judgment motions, are the appropriate forum for determining who is a liar.