Lead Opinion
Margaret Shubert brought this action for negligence against Marriott Corporation for injuries suffered in a cafeteria operated by Marriott. The trial court granted Marriott’s motion for summary judgment and this appeal followed.
Shubert tripped and fell while getting her lunch at a cafeteria operated by Marriott. Shubert picked up a tray from a raised counter and was carrying it in front of her. It is uncontroverted that the cafeteria was very crowded, with three lines of people waiting in food lines. The salad bar was located beyond the food lines, requiring those wanting salad to get their trays and utensils and then move through the crowd. A small recessed area in which a utility cart had been placed by a Marriott employee was located at the end of the serving counters. Although the alcove was deep enough to accommodate the cart, the cart had been placed in such a way that the bottom front edge protruded approximately six to eight inches beyond the front of the tray counter. As she worked her way through the crowd to the salad bar, Shubert was bumped from behind and turned to see the source. At that moment, Shubert’s foot caught on the protruding metal edge of the cart causing her to fall forward. Her elbow was fractured in the fall. Marriott’s motion for summary judgment asserted that Shubert failed to exercise due care for her own safety. The trial
Shubert testified that the tray she was carrying obscured her vision. Marriott relied on Minor v. Super Discount Markets,
Marriott also continues to rely on Froman v. George L. Smith, Ga. World Congress Auth.,
Finally, the fact that Shubert turned around momentarily after being jostled should not defeat her claim as a matter of law. “[A] plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril. . . . The doctrine is further broadened to cover situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” (Citation and punctuation omitted.) Kres v. Winn-Dixie Stores, 183
“In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Emphasis in original.) (Citation omitted.) Sunamerica Financial v. 260 Peachtree Street,
Judgment reversed.
Dissenting Opinion
dissenting.
Shubert tripped over the edge of a cafeteria tray cart which was protruding slightly beyond the front of a tray counter along which she was walking. The tray cart was in an alcove next to the tray counter. Instead of being flush with the edge of the tray counter, the cart was in a position about six to eight inches further extended than the counter. As she walked immediately adjacent to the counter, Shubert’s left foot tripped on the six or eight-inch extended portion of the cart and she fell. Shubert, who had been in the cafeteria many times before, testified that she had seen cafeteria personnel roll the cart in and out of the alcove, but she had never seen it left there. She claims that the existence of the tray cart six to eight inches past the edge of the tray counter was a dangerous condition on the premises which was the proximate cause of her fall.
In deposition testimony, Shubert admitted that the extended portion of the cart would have been plainly visible to her, but for the fact that she was carrying a cafeteria tray at the time of her fall and was walking in crowded lunchtime conditions.
“Q: Was anything blocking your view of that part of the cart? A: Yes, I had my tray with my napkin on it waist high in front of me. Q: How far ahead of you would you estimate that blocked your view?
Shubert also testified that she was bumped from behind and looked back as she walked in the crowd at about the time of her fall. Shubert testified that she could not recall whether or not her head was turned when she bumped the cart, and that, in any event, she would not have been able to see the cart because she could not see her feet. “Q: So at the time your foot hit the cart, was your head turned back looking to see what bumped you or was it turned forward; do you recall? A: I honestly couldn’t tell you.”
When asked if the fall would still have occurred even if she had not been bumped, Shubert responded: “I wouldn’t have seen the cart because I didn’t see my feet.” Shubert did not allege in her complaint and did not argue in response to the motion for summary judgment that this reflexive action on her part was a distraction as discussed in Redding v. Sinclair Refining Co.,
Shubert does not claim that a lesser degree of caution was sufficient to constitute ordinary care because she was distracted by something attributable to the proprietor, or because of a “natural and usual cause,” or because there were emergency circumstances creating stress or excitement. Compare Redding, supra. Rather, she testified that she was prevented from looking where she was walking because the tray she was carrying blocked her view, and that the crowd of people in the area prevented her from seeing the cart before she approached it. These are not conditions which excuse Shubert from the duty to exercise ordinary care to look where she walked and discover otherwise patently visible objects in her path.
As to the obstruction caused by the food tray Shubert was carrying, although she testified that it obscured her vision, she has never contended in the trial court or on appeal that, because she was carrying a tray which blocked her vision, she was excused from seeing and avoiding the cart. This court has previously held that a plaintiff who obscures his own vision by holding an object in front of himself as he
The basis of Shubert’s claim was that she did not spot the otherwise plainly visible obstruction because she was walking in a crowd. As to the crowded conditions, there is no suggestion here that the crowded lunchtime business at the cafeteria was itself a hazardous condition on the premises. Walking in crowded conditions is a commonly encountered situation, where it is to be expected that objects, otherwise plainly visible at a distance, may remain obscured from view until they are close at hand. Under these circumstances, the exercise of ordinary care for one’s safety while walking requires diligence commensurate with the increased risk. The fact that one obviously cannot see as well in crowded conditions is not an excuse for failing to exercise the degree of ordinary care required under the circumstances. See Froman v. George L. Smith, Ga. World Congress Auth.,
Although a proprietor has a duty to keep the premises safe for invitees, an invitee must by the exercise of ordinary care avoid the effect of the proprietor’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it. Alterman Foods v. Ligon,
The evidence shows that the cart at issue was in a location where it was customarily placed and that the six to eight-inch protrusion of the cart was a plainly visible and observable condition to one exercising ordinary care for their own safety under the circumstances. There is no evidence in the record showing any condition or circumstance legally excusing Shubert from the exercise of that degree of ordinary care which would have revealed the presence of the cart to her.
Notes
Present case law recognizes only two legal excuses — the distraction rule (e.g., Red-ding, supra) and the rule of necessity (e.g., Fitzgerald v. Storer Cable Communications,