Two recent Georgia Court of Appeals decisions confirm that premises owners have at least two viable lines of defense in falling-merchandise cases. In both
Two recent Georgia Court of Appeals decisions confirm that premises owners have at least two viable lines of defense in falling-merchandise cases. In both Aubain-Gray v. Hobby Lobby Stores, No. A12A1042, 2013 WL 4017362 (Ga. Ct. App. Aug. 8, 2013), and Warner v. Hobby Lobby Stores, Inc., 321 Ga. App. 121, 741 S.E.2d 270 (2013), the Court of Appeals affirmed summary judgment in favor of defendants on the plaintiffs’ falling-merchandise claims. In each case, the Court determined that the falling item did not constitute a hazardous condition, and that the defendant premises owner did not have superior knowledge of whatever risk was presented. This note discusses the Aubain-Gray and Warner decisions, as well as their impact on strategy for defending against falling-merchandise claims.
Background
Just like in any other premises liability case in Georgia, a plaintiff in a falling-merchandise case must show: (1) the existence of a defective or hazardous condition on the premises; (2) that the defendant had either actual or constructive knowledge of the condition; and (3) that the plaintiff had no knowledge of the condition, despite the exercise of ordinary care. Warner, 321 Ga. App. at 123. In many falling merchandise cases, the defendant premises owner will have colorable arguments on at least the first two elements. That is, defense counsel can often argue that whatever fell on the plaintiff was not a hazard, and that the store did not have superior knowledge of the risk presented by the falling object. Aubain-Gray and Warner exemplify this strategy’s potential for success.
Aubain-Gray v. Hobby Lobby Stores, Inc.
Ms. Aubain-Gray was injured while taking a candle holder from a top shelf in the defendant’s store. She thought that a glass globe sitting on top of the candle holder was affixed to the candle holder, but it actually was not. When she removed the candle holder off the shelf, the glass globe fell off the candle holder and cut her wrist. Plaintiff sued the storeowner on a premises liability theory, arguing that the store had superior knowledge of a hazardous condition because the store knew “that the candle holder was in multiple pieces; but, when displayed on the shelf it appeared to be in one piece.”
The Court of Appeals affirmed summary judgment in favor of the defendant. The Court reasoned that the plaintiff failed to show that the candle holder was a hazard. “Although the candle holder’s globe was made of glass, and perhaps hazardous to that extent, Aubain-Gray knew that she was handling a glass object and that people can be cut by glass.”
The Court further reasoned that there was no evidence that the defendant had superior knowledge of the cutting risk posed by glass. Although the plaintiff argued that the defendant had superior knowledge of the particular way the candle holder was stacked, the Court reasoned that the plaintiff presented no evidence of any similar incident at any Hobby Lobby store. “Thus, there is a lack of evidence that Hobby Lobby could reasonably expect, absent exceptional circumstances, that a customer would view a multi-piece candle holder as a one-piece vase and so handle it in a way leading to injury.” Because the store did not have superior knowledge of a hazardous condition, summary judgment was appropriate.
Warner v. Hobby Lobby Stores, Inc.
While Ms. Warner tried to remove a dry-erase board from a shelf in the defendant’s store, the “shelving gave way,” causing five dry-erase boards on display to fall and strike the plaintiff. Plaintiff argued that the store had actual knowledge that the brackets holding the white boards were “misaligned,” and that the store therefore had knowledge of the hazard created by the misalignment.
The trial court granted summary judgment in favor of the defendant, and the Court of Appeals affirmed. The Court reasoned that there was no evidence that misaligned brackets constituted a hazardous condition for purposes of premises liability. “No witness testified, for example, that as a matter of physics or engineering, a misaligned set of brackets would make the brackets more likely to break. Nor did anyone testify that, in their experience, misaligned brackets were more prone to break.” Whether the misaligned brackets caused the plaintiff’s injuries was therefore a question “of pure speculation or conjecture.”
The Court further reasoned that there was no evidence that the store had knowledge of whatever danger was posed. “The record shows that even if the broken bracket joint existed prior to Warner’s encounter with the bracket, the break was not readily apparent. . . [I]f the bracket was broken before the incident, the evidence shows that it could not have been broken long enough that Hobby Lobby should have discovered it.” Evidence showed that Hobby Lobby followed a reasonable inspection procedure, and that no problems store employees saw no problems while inspecting the bracket the morning of the plaintiff’s accident. “Finally, the evidence showed that there had been no similar incidents in the store prior to Warner’s injury.” Because there was no evidence that Hobby Lobby had superior knowledge of a hazardous condition, the Court affirmed summary judgment.
Defending Against a Falling-Merchandise Claim
Aubain-Gray and Warner demonstrate the viability of two independent lines of defense in falling-merchandise cases. Defendants can argue (1) that whatever fell on plaintiff did not constitute a hazardous condition, and (2) that the store did not have superior knowledge of whatever danger was presented. Defendants can work to minimize exposure in these cases by establishing facts that lead the courts in Aubain-Gray, Warner, and other defense-friendly falling-merchandise cases to grant summary judgment:
• Evidence that store employees followed a reasonable inspection procedure, and that the last inspection of the area of the incident revealed no hazards. See, e.g., Warner, 321 Ga. App. at 125; Gootee v. Target Corp., 256 Fed. Appx. 253, 255 (11th Cir. 2007); Metts v. Wal-Mart Stores, Inc., 269 Ga. App. 366, 367, 604 S.E.2d 235 (2004).
• Testimony that no similar incidents have occurred in the same store. See, e.g., Aubain-Gray, slip op. at 3; Warner, 321 Ga. App. at 125; Gootee v. Target Corp., 256 Fed. Appx. 253, 255 (11th Cir. 2007); Metts, 269 Ga. App. at 367.
• Lack of evidence that the shelving was negligently designed or constructed. See, e.g., Jones v. Wal-Mart Stores, Inc., 256 Fed. Appx. 292, 294 (11th Cir. 2007); Metts, 269 Ga. App. at 367; Tillman v. Winn-Dixie Stores, Inc., 241 Ga. App. 245, 245, 526 S.E.2d 146 (1999).
• Lack of evidence that the alleged hazard existed for a significant amount of time before the incident. Warner, 321 Ga. App. at 125; Gootee, 256 Fed. Appx. at 255; Jones v. Wal-Mart Stores, Inc., 256 Fed. Appx. at 294.
Storeowners obviously want to prevent merchandise falling from shelves onto customers. But with these two Georgia Court of Appeals decisions, premises owners can rely on new authorities to mitigate liability, as long as basic inspection procedures are followed.