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The Paradox of Approaches: They Extend Further Than You Think

August 02, 2016 BY Def Admin

Georgia courts have gradually increased what constitutes an approach, and the Georgia Court of Appeals’ recent decision in Six Flags Over Georgia II, L.P. v. Martin, 335 Ga. App. 350 (2015) exponentially expanded how far an approach extends.  While an appeal of the decision is pending before the Georgia Supreme Court, as it stands, the Court of Appeals decision leaves premises owners in a quandary of having to assume that its approaches may extend over 200 feet onto property not owned or controlled by the premises owner and that they can be held liable for the criminal acts of others on property they do not own or control.

Previous Evolution of the Definition of “Approaches”

            The statute governing approaches in Georgia is O.C.G.A. § 51-3-1 which states, “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” 

One of the first cases in Georgia to address exactly what constitutes an approach under this code section and its predecessor code section was Elmore of Embry Hills, Inc. v. Porcher, 124 Ga. App. 418, 183 S.E.2d 923 (1971).  In Elmore, supra., the plaintiff tripped and fell on an obstruction in the sidewalk while she was at a shopping center owned by the defendant.  The obstruction was six feet south of the southwest corner of the building occupied by defendant Elmore.  Plaintiff testified the obstruction was in front of a vacant area. 

The Elmore court defined the premises to constitute the actual store building and lot of land on which it rests which is under the actual dominion and control of the owner or occupier.  The court had a little bit more difficult time defining the word “approaches.”  In the court’s opinion it held:

“Each owner or occupier is responsible for keeping the sidewalk immediately in front of and adjacent to his store in safe condition, and that the responsibility for the parking area, and those stretches of pavement that are not in front of the premises of any owner or occupier, must be borne by the owner and operator of the shopping center, provided he has retained control of the same.  It would not seem proper to require a store owner or occupier to be responsible for the safe condition of the sidewalk 500 feet away from his store and directly in front of some other owner or occupier’s store, simply because it was in the direct route of travel to defendant’s store, and to that extent constituted an ‘approach’ to his store.” 

Elmore, supra., 124 Ga. App. at 420.

            The Elmore court ultimately concluded that “the term ‘approaches’ as used in [O.C.G.A. §51-3-1] refers to the sidewalk or other approach that is directly contiguous, adjacent to, and touching the premises under control of the owner or occupier.”  Elmore, supra., 124 Ga. App. at 420.  [Emphasis added.]

Seventeen years later, the Georgia Supreme Court weighed in on the issue regarding approaches in Todd v. F.W. Woolworth Co., 258 Ga. 194, 366 S.E.2d 674 (1988).  While the court did not define what constitutes an approach, the court did provide clarity as to what does not constitute an approach.  In this case, Plaintiff fell on ice covering a public sidewalk or “pedestrian plaza” just at the entrance to the Woolworth store.  While defendant conceded the place of injury was an approach to the premises, defendant argued it had no duty to remove ice because it had no control over the public plaza, part of which was the approach. 

The Todd court noted that “what constitutes an approach to certain premises is a question with both factual and legal connotations.  One cannot have an approach to his premises over lands of another, against the will of the other because the law forbids such a trespass.  One may have a legal right to use certain land as an approach to his premises but elect not to use it and to use another approach.”  Todd, supra., 258 Ga. at 196.  The court held “while Woolworth did not control the approach as an owner, it had the right of any member of the public to remove the ice and had the right to give warning to its customers of the danger of the ice.  . . . whether it constituted negligence not to do these things was for the jury.”  The court thus reversed the Court of Appeals’ affirmance of the trial court’s granting of defendant’s Motion for Directed Verdict. 

Five years later, the Georgia Supreme Court did provide an opinion regarding the definition of “approaches” in Motel Properties, Inc. v. Miller, 263 Ga. 484, 436 S.E.2d 196 (1993).  In Motel Properties, supra., the hotel had a sidewalk that extended 200 feet from the motel’s lobby to the unmarked edge of the motel’s leasehold and the sidewalk ended 169 feet past the motel’s property, at some point 27 feet before a border of rock and concrete boulders on which plaintiff’s fall began.  It was controverted that the motel was not responsible for the placement of the rock and concrete boulders. 

The Motel Properties court cited Elmore, supra., for its previous holding that “the term approaches . . . refers to the sidewalk or other approach that is directly contiguous, adjacent to, and touching the premises under control of the owner and occupier.”  Motel Properties, supra., 263 Ga. at 485. 

The Georgia Supreme Court in Motel Properties held as follows:

We construe approaches to mean that property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or lead others to come upon his premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended.  By ‘contiguous, adjacent to, and touching,’ we mean that property within the last few steps taken by invitees, as opposed to ‘mere pedestrians’ as they enter or exit the premises.” [Emphasis added.]

Motel Properties, supra., 263 Ga. at 486 (citing Todd, supra.).

The Motel Properties court noted that there are exceptions to this definition as:

Under certain circumstances non-contiguous property can be deemed an approach because the landowner extended the approach to his premises by some positive action on his part such as constructing a sidewalk, ramp or other direct approach.  . . . such an exception is based on the fact that the owner or occupier of land for his own particular benefit has affirmatively exerted control over a public way or another’s property.  The requirement of an act reflecting a landowner’s positive exercise of dominion over a public way or another’s property is necessary in order to avoid imposing upon invitors an unknowable and impossible burden for maintaining an undefined circumference of properties.

Motel Properties, supra., 263 Ga. at 486.

The Motel Properties court ultimately held that the area where plaintiff fell was not an approach to the motel’s premises under O.C.G.A. §51-3-1 as plaintiff was approximately 196 feet away from the premises controlled by the motel.  (In an ironic twist, the exception from the Motel Properties’ decision is what the Court of Appeals utilized in Six Flags Over Ga., L.P. v. Martin, 335 Ga. App. 350, 370 (2015) to come an inapposite conclusion that a bus stop over 200 feet away from the park’s property did constitute an approach.)

In Food Lion, Inc. v. Isaac, 261 Ga. App. 311, 582 S.E.2d 476 (2003). after shopping in the Food Lion store, the plaintiff exited the store and was injured when she slipped and fell while walking from the store entrance/exit, across a sidewalk and into an adjacent common area parking lot that was owned and maintained by Food Lion's landlord. The plaintiff estimated the location of her fall was approximately 10 feet from the entrance/exit of the Food Lion store.  Applying the approach definition cited above, the Court of Appeals determined that the plaintiff had left a sidewalk immediately in front of the store and entered a common area parking lot which was not within Food Lion's “approaches” within the meaning of O.C.G.A. § 51-3-1 at the time of her fall.  As such, Food Lion did not owe her any legal duty, and the trial court erred in denying its motion for summary judgment.

A very similar situation presented itself in the case of Robinson v. Kroger Co., 284 Ga. App. 488, 644 S.E.2d 316 (2007). In Robinson, the plaintiff tripped and fell as a result of a hole in the parking lot in front of a Kroger grocery store. Kroger presented evidence that it leased the grocery store premises from a third-party landlord, which owned and maintained the parking lot. Finding that the fall did not occur on an “approach” to the Kroger store, the trial court granted the defendant's motion for summary judgment, which was affirmed on appeal.

Recent Developments and Further Evolution of Definition of Approach

            In November 2015, the Georgia Court of Appeals seemingly made a  drastic expansion of the definition of approach with its decision in Six Flags Over Ga., L.P. v. Martin.  In this case, the respondent Martin was assaulted without provocation by gang members using brass knuckles at a Cobb County Transit (CCT) bus stop over 200 feet away from the property of the petitioner Six Flags.  Id. at 351-352.  After leaving Six Flags, Martin and his friends walked along a public road and went to a hotel to use the restroom before going to the CCT bus stop to catch a 9:00p.m. bus.  Id. at 351.  By the time Martin and his friends returned to the bus stop, they had missed the 9:00p.m. train and were forced to wait for the next bus.  Id. at 351.  Martin and his friends walked back down Six Flags Parkway toward the park entrance and sat on a rail to wait.  Id. at 351.  After seeing a large group of people in the area all wearing similar shirts, Martin and his friends retreated back to the bus stop where they waited for the bus.  Id. Without any provocation, Martin was hit with brass knuckles and knocked to the ground where he was repeatedly stomped on by various gang members, which caused him permanent and severe brain damage.  Id. at 351-352. 

Later, Martin filed a premises liability lawsuit against Six Flags alleging that the park was liable for his injuries pursuant to Georgia’s premises liability statute (O.C.G.A. § 51-3-1) for failing to exercise ordinary care to keep the park premises and approaches safe for him as an invitee.  Id. at 352.  The trial court concluded that “approaches” in O.C.G.A. § 51-3-1 was a jury question, and the jury returned a verdict of $35,000,000 in damages which was reduced following apportionment to $32,200,000 plus prejudgment interest.  Id. at 800.  Six Flags appealed alleging a number of errors including the trial court’s interpretation of the definition of “approach.”  Id.

            The Georgia Court of Appeals upheld the trial court’s interpretation of “approach” and in so doing, seemed to vastly expand the definition of ‘approach’ “to include property that is not owned by a defendant, is not managed or operated by the defendant, and is not contiguous to the defendant’s property.”  Six Flags Over Ga. II, L.P., et al. v. Joshua Martin, Case No. S16C0750, Supreme Court of Georgia, Amicus Curiae Brief of the GDLA, at 3.  In reaching this conclusion, the Court of Appeals seemed to ignore the Georgia Supreme Court’s prior holding in Motel Properties, Inc. v. Miller, 263 Ga. 484, 486 (2) (1993) that an “approach” may only include “the last few steps” taken by invitees generally as they enter the property.  Id. at 7. 

In arriving at its conclusion, the Court determined that even though the CCT bus stop was not “contiguous, adjacent to, or touching” Six Flags’ premises, that it was still considered an approach.  Six Flags, supra at 353.    In making this determination, the Court placed great emphasis on its belief that Six Flags exerted control over the bus stop for its own particular benefit and thus constituted an exception to general definition of an approach.  Id. at 354.  To Support its conclusion, the court claimed Six Flags expressly invited its customers via its website to use the CCT buses; the park constructed barricades and erected signs directing its customers along Six Flags Parkway leading to the CCT stop; the park employed off-duty Cobb Police Officers to aid in directing traffic in the public ways leading to the park.  Id. at 354.  On this basis, the Court concluded that these actions taken by Six Flags to exert control over the public way between the CCT bus stop and the park were solely for Six Flag’s benefit.  Id. at 354.

In another surprising twist, the Court of Appeals implied in its decision that the standard for approach might depend upon how large a business is or their ability to pay a judgment when it said, “Because, unlike cases involving a single grocery store, restaurant, or motel, Six Flags is a 290-acre theme park with a high volume of patrons entering and exiting its premises (10,000 on a slow day).”  Id. at 359. 

            The case is now on appeal before the Georgia Supreme Court.  If upheld, the decision of the Court of Appeals may have the net effect of expanding the potential for liability exposure for torts that take place on property not owned or controlled by the premises owner/operator.  The developments will continue to be important to lawyers and claims professionals dealing with premises liability tort claims.     

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley