SIMON v. MURPHY Et Al.
350 Ga. App. 291
Ga. Ct. App.2019Background
- Plaintiff Wanda Simon tripped and broke her arm on an elevated portion (~1 1/8") of a steel cart-corral crossbar in a Kroger parking lot after a delivery truck had damaged the corral months earlier.
- Kroger and store manager Michael Murphy knew of the damaged corral for months; Murphy reported it but the corral was not replaced.
- Simon sued Kroger and Murphy for negligence/failure to maintain and warn; defendants moved for summary judgment arguing the condition was open-and-obvious and Simon failed to exercise ordinary care.
- Trial court granted summary judgment for defendants, finding the damaged crossbar was a clearly visible static condition present for months; denied Simon’s motion to compel certain safety documents.
- On appeal, the Court of Appeals affirmed denial of the motion to compel but reversed the grant of summary judgment, finding genuine issues of material fact about Simon’s knowledge of the specific hazard and her exercise of ordinary care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment appropriate on premises-liability claim | Simon: fact issues exist whether she knew of the specific danger and whether she exercised ordinary care | Kroger/Murphy: hazard was open and obvious; Simon had traversed it and failed to exercise ordinary care | Reversed: genuine issues of material fact preclude summary judgment |
| Whether Simon had knowledge of the specific hazard (elevation) | Simon: did not see the raised portion and did not know of the danger despite seeing the corral generally | Defendants: knowledge of crossbar generally equals knowledge of hazard | Held: plaintiff’s knowledge of the crossbar’s existence does not conclusively prove knowledge of the specific hazardous elevation; fact issue remains |
| Whether Simon successfully negotiated the same hazard when entering the corral | Simon: only heard cart bounce and did not necessarily traverse the raised section | Defendants: prior traversal shows she should have noticed it | Held: record does not establish she traversed or negotiated the same area — fact issue remains |
| Whether trial court abused discretion in denying motion to compel store safety binder | Simon: sought production of the Star 360 safety binder for 2016 | Kroger: incidents outside store (parking lot) not in binder; no relevant entries; produced blank binder | Held: Affirmed — no clear abuse of discretion; record showed binder lacked relevant entries |
Key Cases Cited
- Robinson v. Kroger Co., 268 Ga. 735 (1997) (premises-liability issues and invitee’s duty of ordinary care generally not resolvable on summary judgment)
- McLemore v. Genuine Parts Co., 313 Ga. App. 641 (2012) (elements for a trip-and-fall premises claim: owner knowledge and plaintiff’s lack of knowledge despite ordinary care)
- Food Giant, Inc. v. Witherspoon, 183 Ga. App. 465 (1987) (distinguishes knowledge of a fixture from knowledge of a specific dangerous condition)
- Bullard v. Marriott Int’l, Inc., 293 Ga. App. 679 (2008) (plaintiff’s knowledge of a path does not necessarily mean knowledge of the specific hazardous portion)
- Baker v. Harcon, Inc., 303 Ga. App. 749 (2010) (summary judgment improper where reasonable minds can differ as to plaintiff’s contribution to injury)