Joe Enterprise, LLC v. Kane
341 Ga. App. 12
| Ga. Ct. App. | 2017Background
- Plaintiff Janet Kane fell while descending a concrete ramp from the restaurant sidewalk to the parking lot after leaving an IHOP owned by Joe Enterprise, LLC; she broke her leg and was injured.
- Earlier the same visit Kane had walked up the same ramp from the parking lot into the restaurant without incident.
- The ramp had a center section flush with the sidewalk and tapered/flared left and right sides; no color demarcation or warning strips were present where the ramp sloped down.
- Kane gave inconsistent testimony about exactly where she fell (initially could not locate, then said middle, later circled right side in a photograph).
- Kane presented an expert who, from photographs, opined the unmarked drop-off was deceptive and violated safety standards; the trial court relied in part on that testimony to deny summary judgment.
- On interlocutory appeal, the Court of Appeals considered whether summary judgment for Joe Enterprise was proper because (1) Kane had successfully negotiated the same ramp earlier, and (2) any defect was open and obvious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff can show causation for the fall where her testimony about where she fell is inconsistent | Kane says the ramp’s unmarked edge/deceptive condition caused her to fall | Joe Enterprise says inconsistencies mean causation is speculative and insufficient for trial | Court: Plaintiff’s inconsistent testimony leaves only speculation about causation; summary judgment appropriate for defendant |
| Whether successful prior negotiation of a static condition bars recovery | Kane argues expert shows a deceptive condition not obvious to her | Joe Enterprise argues successful prior traversal gave Kane equal knowledge of the hazard | Court: Prior successful negotiation of the same ramp (under same conditions) imputed equal knowledge and barred recovery |
| Whether expert testimony that the ramp was "deceptive" creates a fact issue overcoming summary judgment | Kane relies on expert’s photographic inspection and code/ADA violations to show a latent hazard | Joe Enterprise contends expert opinion cannot overcome the presumption from prior traversal and open-and-obvious nature | Court: Expert testimony did not defeat the rule that an obvious static hazard—successfully negotiated—bars recovery |
| Whether the ramp’s condition was open and obvious (and thus no duty to warn) | Kane contends lack of demarcation made the drop-off deceptive and not readily apparent | Joe Enterprise contends the height differential and flared sides were plainly visible on a clear day | Court: Ramp condition was open and obvious under undisputed conditions; owner had no duty to warn; summary judgment for owner affirmed |
Key Cases Cited
- Lau’s Corp. v. Haskins, 261 Ga. 491 (discusses summary judgment showing defendant can negate an essential element)
- Robinson v. Kroger Co., 268 Ga. 735 (invitee must show owner had knowledge and invitee lacked knowledge despite ordinary care)
- American Multi-Cinema v. Brown, 285 Ga. 442 (invitee not required to look continuously but open-and-obvious defects may bar recovery)
- Norwich v. The Shrimp Factory, 332 Ga. App. 159 (successful prior negotiation of a static hazard bars recovery)
- Callaway Gardens Resort v. Bierman, 290 Ga. App. 111 (plaintiff held to have equal knowledge when she previously negotiated the condition)
- Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (nonmoving party’s contradictory testimony construed against that party for summary judgment)