The Court of Appeals’s recent decision in Samuels v. CBOCS Inc., No. A12A1525 (Ga. App. Nov. 27, 2012), suggests that evidence of a violation of a
The Court of Appeals’s recent decision in Samuels v. CBOCS Inc., No. A12A1525 (Ga. App. Nov. 27, 2012), suggests that evidence of a violation of a private guideline, by itself, can foreclose a defendant from obtaining summary judgment in premises liability cases. Such a rule could discourage premises owners from establishing rigid private safety, inspection, and cleaning rules. In turn, lax safety guidelines could increase the frequency of accidents. This could not have been the General Assembly’s intent for O.C.G.A. § 51-3-2. This article explains the history of case law in this area, the Samuels case, Samuels’s effect on the previously-established jurisprudence, and suggestions for overcoming Samuels in a motion for summary judgment.
A defendant’s violation of privately-established rules, standards, or guidelines does not establish negligence per se. Even if a defendant violates an accreditation body’s standards or an internal store policy, the defendant cannot be automatically held to have breached a duty owed to a plaintiff. This has been axiomatic in Georgia law for decades. “Privately established rules are admissible as illustrative of negligence, but the violation of such a rule is not negligence in and of itself.” Luckie v. Piggly-Wiggly Southern, Inc., 173 Ga. App. 177, 178, 325 S.E.2d 844 (1984). “The law in Georgia is that violation of privately set guidelines, although admissible as illustrative of negligence, does not establish negligence.” Spearman v. Georgia Building Authority, 224 Ga. App. 801, 482 S.E.2d 463 (1997).
There have been decisions in which the appellate courts have held that summary judgment in favor of the defendant was inappropriate when, among other things, the defendant violated a private guideline. For example, in McGarity v. Hart Electric Membership Corp. 307 Ga. App. 739, 706 S.E.2d 676 (2011), the Court of Appeals reversed summary judgment that the trial court granted in favor of the defendant when several questions of material fact remained, one of which included evidence that defendant was not following the inspection procedure mandated by the relevant accreditation body. Similarly, in Davis v. GBR Properties, Inc., 233 Ga. App. 550, 504 S.E.2d 204 (1998), the Court of Appeals reversed summary judgment that the trial court granted in favor of the defendant when the plaintiff presented expert testimony that the ramp on which plaintiff fell was unsafe and violated ANSI standards.
But, there has not been a decision in which a Georgia appellate court has held that violation of a private guideline, by itself, forecloses the availability of summary judgment. In fact, several decisions have affirmedsummary judgment for the defendant despite there being evidence that the defendant violated a private guideline. For example, in Schofield v. Hertz Corp., 201 Ga. App. 830, 831, 412 S.E.2d 853 (1991), the Court of Appeals affirmed summary judgment for the defendant on the plaintiff’s negligence and negligent entrustment claims, despite evidence that the defendant violated a private guideline. The Court reasoned, “Violations of private guidelines do not establish negligence per se, but can be illustrative of what is considered reasonable behavior for employees.” In Butler v. South Fulton Medical Center, 215 Ga. App. 809, 452 S.E.2d 768 (1994), the Court of Appeals affirmed summary judgment for the defendant on plaintiff’s negligent hiring and supervision claims. The Court held, “Even were we to decide, as a matter of law, that South Fulton’s rules created a duty to Butler, the failure of the nurses to comply with a rule of the hospital does not give rise to negligence per se.” InWages v. Amisub, 235 Ga. App. 156, 159-160, 508 S.E.2d 783 (1998), the Court of Appeals affirmed summary judgment for the defendant on the plaintiff’s claim for negligent mishandling of a corpse. The plaintiffs argued that the defendant’s violation of the accreditation organization’s standards and of the defendant’s own internal policies was negligence per se. “The trial court properly rejected that assertion . . . Such protocols and procedures do not have the force and effect of a statute or an administrative regulation. The Court of Appeals has repeatedly held that violations of private guidelines do not establish negligence per se.”
The Samuels case
As she walked through the defendant’s parking lot, Ms. Samuels stepped on a piece of wood that caused her to fall. The defendant had an internal policy calling for the manager on duty to inspect the grounds every thirty minutes to an hour during his entire shift. But, evidence showed that the manager on duty at the time of the incident had not inspected the parking lot at all during the seven-hour period between the start of his shift and the time of the plaintiff’s fall.
The trial court granted summary judgment in favor of the defendant premises owner, determining that there was no evidence that the defendant had knowledge of a hazardous condition. The Court of Appeals, however, reversed summary judgment, reasoning that the defendant’s failure to follow its own internal inspection procedure created a factual issue regarding whether it had constructive knowledge. “Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure . . . In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” (quoting Food Lion v. Walker, 290 Ga. App. 574, 576, 660 S.E.2d 426 (2008)).
The Court of Appeals distinguished other of its decisions in which the Court held that a defendant who “failed to follow a reasonable inspection schedule may still obtain summary judgment if there is no evidence that the foreign object could have been discovered during a reasonable inspection.” See Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 251, 699 S.E.2d 439 (2010); Chastain v. CF Ga. North Dekalb L.P., 256 Ga. App. 802, 803-804, 569 S.E.2d 914 (2002); Lindsey v. Ga. Bldg. Auth., 235 Ga. App. 718, 720, 509 S.E.2d 749 (1998); Rodriguez v. City of Augusta, 222 Ga. App. 383, 384, 474 S.E.2d 278 (1996). The Samuels Courtreasoned that those other cases were distinguishable “because in each case the plaintiff essentially admitted that the foreign object or other obstruction could not be seen upon a reasonable inspection.” After determining that Ms. Samuels had not admitted that the foreign object she tripped on could not be seen upon a reasonable inspection, the Court held that an issue of material fact remained, and that the defendant was therefore not entitled to summary judgment.
The Samuels Court ostensibly distinguished cases cited by the defense on the grounds that Ms. Samuels had not “admitted” that the stick could not have been found if the defendant followed a reasonable inspection procedure. But, this will not comfort defendants that will encounter plaintiffs who will routinely argue that foreign objects they trip on could have been found in a reasonable inspection procedure. (Of course, if a foreign object could be seen with reasonable inspection, there will be a comparative fault issue for the plaintiff as to why she did not see it).
Whereas some previous Georgia appellate cases have held against summary judgment in favor of a defendant premises owner in part because of evidence that the defendant violated private guidelines, Samuelssuggests that trial courts might correctly deny a summary judgment motion based solely on evidence that the defendant violated a private guideline. Samuels is therefore a questionable decision: It weakens the incentive for premises owners to establish clear, concrete safety and cleaning procedures that help prevent accidents.
For premises liability cases in which the defendant has violated rigid private safety, inspection, or cleaning guidelines, defense counsel can work to overcome Samuels in a motion for summary judgment:
? Cite the cases in which the courts have upheld summary judgment in favor of the defendant despite evidence that the defendant violated private guidelines. E.g., Wages v. Amisub, 235 Ga. App. 156, 159-160, 508 S.E.2d 783 (1998); Butler v. South Fulton Medical Center, 215 Ga. App. 809, 452 S.E.2d 768 (1994); Schofield v. Hertz Corp., 201 Ga. App. 830, 831, 412 S.E.2d 853 (1991).
? Raise questions on the plaintiff’s actions and comparative fault when claimed that the condition could have been observed and discovered by inspections. Argue that if Samuels is read to disallow summary judgment in every case in which the plaintiff claims a foreign object could have been discovered with a reasonable inspection, then the case must be considered to have overruled decades of Georgia law, which is plainly not what the Court of Appeals intended.
? Distinguish, if possible, the facts of Samuel. Whereas the defendant’s manager in Samuel failed to inspect the parking for seven hours despite the private guidelines calling for him to inspect every half-hour to hour, many other cases do not involve as an egregious a violation of private guidelines.
? Reference the extensive case law in which the courts have held that violation of a private guideline, by itself, does not constitute negligence per se. E.g., Spearman v. Georgia Building Authority, 224 Ga. App. 801, 482 S.E.2d 463 (1997); Luckie v. Piggly-Wiggly Southern, Inc., 173 Ga. App. 177, 178, 325 S.E.2d 844 (1984).
? Emphasize the public policy reason for the above rule; that is, that the legislature could not have intended to discourage private entities from making rules and guidelines that deter accidents.
We can hope that the Supreme Court of Georgia will rectify the questionable public policy set forth in the Court of Appeals’s decision for Samuels. In the meantime, defense counsel can work to alleviate the case’s impact by following the above suggestions.