NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
SUPREME COURT OF GEORGIA
Case No. S22G1043
September 14, 2023
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
LYNN B. GIVENS et al. v. CORAL HOSPITALITY-GA, LLC.
Upon consideration of the parties’ Consent Motion to Withdraw
Appeal, the motion is hereby granted.
All the Justices concur.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
PINSON, J., concurring.
In this case, the Court of Appeals relied on a long line of its
precedent to reject a property owner’s liability for an injury on its
property as a matter of law because the invitee acknowledged that
had she looked down, she would have seen the raised patch of
asphalt that she tripped over. Our Court granted review to address
whether that line of precedent, including the decision below, has
departed from certain of our holdings in Robinson v. Kroger Co., 268
Ga. 735, 748 (2) (B) (493 SE2d 403) (1997) (holding that “an invitee’s
failure to exercise ordinary care is not established as a matter of law
by the invitee’s admission that he did not look at the site on which
he placed his foot or that he could have seen the hazard had he
visually examined the floor before taking the step which led to his
downfall” (emphasis added)). Now that the parties have settled this
case, it is no longer an appropriate vehicle for addressing this
question. But, as I explain below, the question remains important,
and I would be open to granting review again to address this
question in an appropriate case.
2
Under our premises-liability statutes, an owner or occupier of
land owes invitees a duty to keep the premises safe. See OCGA § 51-3-1. In actions seeking to recover for injuries caused by a proprietor’s
breach of this duty, the litigation often focuses on two issues: (1)
whether the proprietor knew or should have known about the
hazard that caused the injury, and (2) whether the invitee knew
about the hazard or could have avoided it through the exercise of
ordinary care for her personal safety. See Am. Multi-Cinema, Inc. v.
Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009). The first issue has
to do with the element of breach. If a proprietor didn’t know about
the hazard in question even having exercised the requisite degree of
care to identify risks to invitees’ safety on the premises, it hasn’t
breached its duty of care. See id. at 447 (3). The second issue includes
two related defenses to liability rooted in contributory negligence. If
the invitee either (a) knew about the hazard and intentionally
disregarded it, or (b) could have discovered and avoided the hazard
if she had exercised ordinary care for her own safety—respectively,
3
“voluntary negligence” or “causal negligence”—she cannot recover.
Id. at 445. See also Robinson, 268 Ga. at 748-749.1
The question presented by this case involved the latter defense
of causal negligence. One way a proprietor can argue that the invitee
could have discovered and avoided a hazard had she exercised
ordinary care is to argue that she reasonably should have known
about the hazard because it was “in plain view.” See Marlowe v.
Cabe, 207 Ga. App. 764, 765 (429 SE2d 151) (1993) (“The plain view
doctrine imposes a duty on an invitee ‘to look where he is walking
and to see large objects in plain view which are at a location where
they are customarily placed and expected to be.’”); Stenhouse v. Winn
Dixie Stores, Inc., 147 Ga. App. 473, 474 (249 SE2d 276) (1978)
(same). Proprietors often try to ground this kind of argument in
evidence that nothing obstructed the invitee’s view of the hazard, or
1 The invitee has the burden to prove the proprietor’s knowledge of the
hazard as part of the plaintiff’s burden to prove each element of her claim,
while the proprietor has the burden to prove voluntary or causal negligence,
which are affirmative defenses to liability. See Am. Multi-Cinema, 285 Ga. at
445.
4
that she would have seen it had she looked at the ground, or floor,
or wherever the hazard was found. See Marlowe, 207 Ga. App. at
765; Stenhouse, 147 Ga. App. at 474.
In Robinson v. Kroger Co., however, we clarified that this kind
of evidence, at least by itself, does not give courts license to routinely
decide the question whether an invitee failed to exercise ordinary
care for her personal safety as a matter of law. 268 Ga. at 742-743
(1). After all, the question whether any given hazard was sufficiently
obvious is a question whether the invitee reasonably could have seen
and avoided it in the exercise of ordinary care. And in tort law,
questions about reasonableness under the circumstances are
quintessentially questions for the factfinder. See, e.g., Ellington v.
Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976) (“‘Even
where there is no dispute as to the facts, it is, however, usually for
the jury to say whether the conduct in question met the standard of
the reasonable man.’”). As we explained more recently in American
Multi-Cinema, 285 Ga. at 445 (2):
5
issues such as how closely a particular retailer should
monitor its premises and approaches, what retailers
should know about the property’s condition at any given
time, how vigilant patrons must be for their own safety in
various settings, and where customers should be held
responsible for looking or not looking are all questions
that, in general, must be answered by juries as a matter
of fact rather than by judges as a matter of law.
So, evidence that “the invitee’s view was not obstructed” or that “the
hazard could have been seen had the invitee looked at the ground”
may well be evidence from which a jury could find that the invitee
reasonably should have seen and avoided the hazard. But Robinson
says that taken alone, this kind of evidence does not ordinarily
establish an invitee’s failure to exercise ordinary care as a matter of
law. See Robinson, 268 Ga. at 742-743 (1). See also id. at 743 (1)
(“Demanding as a matter of law that an invitee visually inspect each
footfall requires an invitee to look continuously at the floor for
defects, a task an invitee is not required to perform since the invitee
is entitled to assume that the owner/occupier has exercised
reasonable care to make the premises safe for the invitee and
continues to exercise such care while the invitee remains on the
6
premises.”) (cleaned up). Instead, the question whether an invitee’s
own negligence precludes her recovery “is whether, taking into
account all the circumstances existing at the time and place of the
fall, the invitee exercised the prudence the ordinarily careful person
would use in a like situation.” Id. at 748. And unless the evidence on
that question is “plain, palpable, and undisputed,” that question is
for the jury. Id. 2
In rejecting this “the hazard was visible and she didn’t look
down” reasoning as the sole basis for denying liability as a matter of
law, Robinson disapproved a number of Court of Appeals decisions
that had applied that reasoning. See id. at 743 (1). Yet the reasoning
of the decision below looks very much like those disapproved
2 Robinson does not seem to take issue with decisions concluding that an
invitee failed to exercise ordinary care as a matter of law where the hazards
are “large objects in plain view,” like “a ‘clearly visible’ pile of dirt in the road.” 268 Ga. at 742 (1) (quoting Stenhouse, 147 Ga. App. at 474 and Atlanta Gas
Light Co. v. Brown, 94 Ga. App. 351, 356 (94 SE2d 612) (1956)). Those decisions
appear to apply the settled rule “that ordinarily questions of diligence and
negligence, including proximate cause, are for the jury,” but that it is “the duty of the court to determine those questions in clear, palpable, and indisputable
cases.” Atlanta Gas Light Co., 94 Ga. App. at 354. Robinson’s point was that
decisions concluding that a hazard was in plain view as a matter of law should
be the rare exception, not the general rule.
7
decisions. The invitee here tripped over a small patch of raised
asphalt outside of her rental cabin and sued the property owner
under our premises-liability statutes. The Court of Appeals held
that she could not recover as a matter of law based only on her
acknowledgment that “nothing impeded her view” and “the only
reason she did not see the raised asphalt was that she did not look
at it.” Coral Hosp.-GA, LLC v. Givens, 363 Ga. App. 664, 665 (871
SE2d 325) (2022). At least on its face, this reasoning seems to
conflict directly with Robinson. See 268 Ga. at 748 (2) (B); id. at 742
(1) (criticizing “cases wherein the appellate court ruled that, as long
as the invitee’s view was not obstructed, a hazard, no matter its size,
was in ‘plain view’ and recovery was precluded if the hazard could
have been seen had the invitee looked at the ground”).
And this decision is not a one-off: the Court of Appeals here
faithfully applied a line of Court of Appeals decisions that reject
liability as a matter of law for injuries caused by “static conditions”
like “uneven walkway[s]” “[w]here nothing obstructs an invitee’s
ability to see” them, because the owner “‘may safely assume that the
8
invitee will see [them] and will realize any associated risks.’” Coral
Hosp.-GA, LLC, 363 Ga. App. at 665 (quoting D’Elia v. Phillips
Edison & Co., Ltd., 354 Ga. App. 696, 698-699 (839 SE2d 721)
(2020)). See, e.g., LeCroy v. Bragg, 319 Ga. App. 884, 886 (1) (739
SE2d 1) (2013) (reversing denial of summary judgment to property
owner where “potholes were open and obvious” and “nothing
obstructed [the plaintiff’s] ability to see” the hole she stepped in);
McLemore v. Genuine Parts Co., 313 Ga. App. 641, 645 (722 SE2d
366) (2012) (affirming grant of summary judgment to property
owner where parking lot curb was not obstructed from plaintiff’s
view). This line of precedent finds its roots in pre-Robinson Court of
Appeals decisions, including one that Robinson singled out for using
this reasoning improperly to reject liability as a matter of law. See
268 Ga. at 743 (citing Emory Univ., Inc. v. Duncan, 182 Ga. App.
326, 329 (2) (355 SE2d 446) (1987) (“Plaintiffs’ assertion that there
was nothing about the alleged defect which would have drawn Ms.
Duncan’s attention to it cannot avail, for it does not appear that she
ever looked down. It was incumbent upon her, as a matter of law, to
9
use her eyesight for the purpose of discovering any discernible
obstruction or defect in her path.”) (cleaned up)). See also Crenshaw
v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992) (citing Emory
Univ., 182 Ga. App. 326; Jeter v. Edwards, 180 Ga. App. 283 (349
SE2d 28) (1986)) (noting that “it has been held that where there is
nothing to obstruct or interfere with one’s ability to see such a ‘static’
defect, the owner or occupier of the premises is justified in assuming
that a visitor will see it and realize the risk involved”); Freyer v.
Silver, 227 Ga. App. 253, 256 (488 SE2d 728) (1997) (same), cert.
granted, judgment vacated, and case remanded in light of Robinson
(Jan. 5, 1998).3
The proprietor here points out that this case involves a socalled “static condition” rather than the “transient foreign
substance” that caused the injury in Robinson. But several of the
decisions Robinson disapproved also involved static conditions. See
Robinson, 268 Ga. at 742-743 (criticizing Papera v. TOC Retail, 218
3 See Freyer v. Silver, 234 Ga. App. 243, 245 (507 SE2d 7) (1998)
(explaining history of case).
10
Ga. App. 777 (463 SE2d 61) (1995) (involving a hole in parking lot
pavement); Steele v. Rosehaven Chapel, 223 Ga. App. 523 (478 SE2d
596) (1996) (involving a step with no marking or handrail at exit of
funeral home); Wiley v. Family Dollar Store, 208 Ga. App. 461 (430
SE2d 839) (1993) (involving a 1-inch gap between asphalt ramp and
sidewalk); Emory Univ., 182 Ga. App. at 326 (involving a 1-inch rise
in concrete)). And neither Robinson nor any other decision of ours
appears to limit Robinson’s holdings to cases involving “transient
substances.” In fact, in other decisions, the Court of Appeals has
applied Robinson in cases involving static conditions and rejected
the reasoning of the line of precedent that the Court of Appeals
applied here. See, e.g., Rozy Invs., Inc. v. Bristow, 276 Ga. App. 278,
282-283 (4) (623 SE2d 171) (2005); Aggeles v. Theater of the Stars,
Inc., 235 Ga. App. 57, 58-59 (507 SE2d 856) (1998); Freyer v. Silver,
234 Ga. App. 243, 246-247 (3) (507 SE2d 7) (1998). This is not to say
that the difference between transient and static hazards could not
be meaningful depending on the circumstances of a given case—for
example, evidence that an invitee had “successfully traversed” a
11
static condition on prior occasions could be strong (if not dispositive)
evidence that the invitee knew about the hazard and intentionally
disregarded it, or could have avoided it had she exercised ordinary
care. See Nemeth v. RREEF Am., L.L.C., 283 Ga. App. 795, 798 (1)
(643 SE2d 283) (2007). But the notion that Robinson’s clear holding
simply does not apply in cases involving static conditions does not
seem to hold water.
*
In sum, the decision below adds to a line of Court of Appeals
decisions that appears to conflict with our own precedent and other
decisions of the Court of Appeals, and this conflict concerns a legal
issue that recurs with great frequency. Addressing this kind of
inconsistency in our law and clearing it up is just the kind of thing
our certiorari review is meant for. This case is no longer an
appropriate vehicle for that review now that the parties have settled
it. But the inconsistency in our law remains, so I am open to granting
review again to address these issues in an appropriate case.
12
I am authorized to state that Presiding Justice Peterson joins
in this concurrence.
13