Gervin v. Trust

354 Ga.App. 11

840 S.E.2d 101

GERVIN et al.

v.The RETAIL PROPERTY TRUST.

A19A2234

Court of Appeals of Georgia.

February 27, 2020

Yinka T. Omole, Atlanta, for Appellant.

Ronald Scott Masterson, Victoria Ashley Waller, for Appellee.

Markle, Judge.

In this premises liability action, Fannie Gervin ("Fannie"), along with her husband, Bobby L. Gervin (collectively "the Gervins"), appeal from the trial court's order granting summary judgment in favor of the Retail Property Trust ("RPT") after she sustained injuries attempting to enter through a revolving glass door on RPT's property. On appeal, the Gervins allege the trial court erred in (1) determining that the prior traversal doctrine bars their claims, and (2) failing to perform its gatekeeping role under OCGA § 24-7-702 (b) with regard to their expert witness. We conclude that the trial court properly determined that the Gervins's claims are barred by the prior traversal doctrine. We further conclude that, although the trial court failed to exercise its role as gatekeeper in determining the admissibility of the expert testimony under OCGA § 24-7-702 (b), the expert's testimony is irrelevant because the Gervins's claims were barred by the prior traversal doctrine. Therefore, we affirm.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Edwards v. Moore , 351 Ga. App. 147, 830 S.E.2d 494 (2019).

So viewed, the evidence shows that, on May 2, 2015, Fannie and her daughter were shopping at Lenox Square Mall ("the Mall"). Fannie entered the Mall through an automatic revolving glass door at the entrance. After shopping for about an hour, Fannie exited this same door to ask her husband, who was waiting outside, if he wanted ice cream. As she reentered the Mall through the same revolving glass door, she indicated that it started to move, but then stopped before she could get out, and she slammed her head into the stationary glass wing of the door, sustaining injuries to her mouth, teeth, neck and upper back.

Video surveillance of the incident showed that Fannie simply ran into a stationary glass pane of the revolving door. The Mall incident report also indicated that Fannie walked into the side section of the revolving door, and not the door itself. In an affidavit, a maintenance employee at the Mall, who had worked there for at least 13 years, stated that the door is inspected every morning, there are no records of any malfunction or defects with the door, and the revolving door is equipped with an automated self-diagnostic testing system, which detected no malfunction or defects with the door at or near the time of the incident. Further, RPT's operations director stated in his deposition testimony that he could not recall any other incidents involving the revolving door prior to Fannie's accident.

The Gervins filed suit against RPT, asserting claims for premises liability, negligence, vicarious liability, loss of consortium, and attorney fees, and asserting over $22,000 in medical expenses.¹ The Gervins identified an expert witness, who would testify that, among other things, the door was defective because there was no sign on the door to alert patrons of its moving glass parts, as recommended by the manufacturer. The expert opined that the absence of a sign caused Fannie to become distracted and made the door dangerous.

RPT moved for summary judgment, arguing, as is relevant here, that the prior traversal doctrine barred the Gervins's claim, that the Gervins had presented no evidence showing that RPT had actual or constructive knowledge of a hazardous condition, and that there was no evidence the door malfunctioned or was defective. RPT also filed a motion to exclude the testimony of the Gervins's expert witness, asserting that his testimony did not meet the standard for admissibility under OCGA § 24-7-702 (b) and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.E.2d 469 (1993).

The trial court did not rule on RPT's motion to exclude the expert.² Following a hearing, the trial court granted summary judgment in RPT's favor, finding that the prior traversal doctrine barred the Gervins's claims. This appeal followed.

1. The Gervins argue that the trial court erred in finding that the prior traversal doctrine bars their recovery. We disagree.

Under OCGA § 51-3-1, a person who owns or occupies land and by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. In order to recover on a premises liability claim, a plaintiff must show (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. Accordingly, the fundamental basis for an owner or occupier's liability is that party's superior knowledge of the hazard encountered by the plaintiff. In other words, a plaintiff is not entitled to recovery if the undisputed evidence demonstrates that the plaintiff's knowledge of the hazard was equal to or greater than that of the defendant.

(Citations and punctuation omitted.) Cherokee Main Street, LLC v. Ragan , 345 Ga. App. 405, 407, 813 S.E.2d 397 (2018).

"A static condition is one that does not change and is dangerous only if someone fails to see it and walks into it." (Citation and punctuation omitted.) Jones Lang LaSalle Operations, LLC v. Johnson , 350 Ga. App. 439, 440, 829 S.E.2d 629 (2019). A revolving door is a static condition. See Owens v. Dekalb Medical Center, Inc. , 253 Ga. App. 19, 23 (1), 557 S.E.2d 404 (2001). Also, where a case involves a static condition, such as a revolving door, and the invitee knows of the condition, "there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does." (Citation omitted.) Callaway Gardens Resort, Inc. v. Bierman , 290 Ga. App. 111, 112, 658 S.E.2d 895 (2008) ; see also Rentz v. Prince of Albany, Inc. , 340 Ga. App. 388, 390 (1), 797 S.E.2d 254 (2017) ("If nothing obstructs the invitee's ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.") (citation omitted); Wittenberg v. 450 Capitol Assoc. , 207 Ga. App. 260, 263, 427 S.E.2d 547 (1993) ("[T]here is no obligation to protect the invitee against dangers or hazards which are known to him or which are so obvious and apparent he may reasonably be expected to discover them.").

Georgia's longstanding prior traversal rule provides that "when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom." Perkins v. Val D'Aosta Co. , 305 Ga. App. 126, 128, 699 S.E.2d 380 (2010). "The rule imputing knowledge of a danger to a person who has successfully negotiated an alleged dangerous condition before applies only to cases involving a static condition that is readily discernible to a person exercising reasonable care for his own safety." (Punctuation omitted.) Strauss v. City of Lilburn , 329 Ga. App. 361, 364, 765 S.E.2d 49 (2014). It is a plaintiff's knowledge of the specific hazard that determines whether the plaintiff can prevail on a premises liability claim. Norwich v. Shrimp Factory, Inc ., 332 Ga. App. 159, 161-162, 770 S.E.2d 357 (2015).

Here, the revolving glass door, consisting of its stationary glass panes, was a static condition that Fannie had successfully entered and exited through twice that day. See Owens , 253 Ga. App. at 23 (1), 557 S.E.2d 404. Fannie indicated she was familiar with revolving glass doors, she understood how such doors worked, and she was familiar with the fact that revolving doors have stationary parts, as well as moving parts, and she was able to differentiate between the two. There is no evidence that her perception of the revolving door or its stationary panes had changed from the previous times she entered the door to the time of her accident, or that her view was obstructed. Rentz , 340 Ga. App. at 390 (1), 797 S.E.2d 254. As such, Fannie had equal knowledge of the revolving door and its stationary parts, and the trial court therefore properly concluded that the Gervins's claims are barred by the prior traversal doctrine.³

2. The Gervins also argue that the trial court did not consider or address the reliability, relevancy, or admissibility of...