By James H. Moss, JD
A federal judge in the Middle District of Georgia has ruled for a venue in a case in which it was sued by an elderly woman who tripped and fell over a candy apple.
In the opinion (https://law.justia.com/cases/federal/district-courts/georgia/gamdce/7:2018cv00067/105337/30/), the court found that the plaintiff “could not produce sufficient evidence that the defendant breached its duty of care in its maintenance of the venue.”
In this premises liability case, a family had spent the day at a theme park, and that evening went to the theme park’s concert venue. The venue held approximately 2,000 seats and additional seating in a grassy area in front. The plaintiff testified the venue had a few hundred people in it while the venue representative stated it was full. After the concert, the family members went down front to get autographs while the grandmother walked to the exit. She walked up the aisle and then traversed another row, not the one she was sitting in, and fell down. She did not see anything before her fall, but afterwards saw a candy apple stuck to the ground, stick in the air.
She sued claiming the defendant breached its duty of ordinary care in maintaining its premises. The defendant filed a motion for summary judgment arguing Georgia’s law does not require the removal of trash or cleaning of the area while the guests exit the venue.
The Federal District Court hearing the case first looked at the definition of negligence under Georgia’s law: “duty, breach of the duty, proximate cause, and damages.” Under Georgia’s law, a land owner owes a duty to its invitees to exercise ordinary care in keeping its premises safe. That duty requires landowners to protect invitees from unreasonable risk of harm of which the land owner has superior knowledge and a duty to inspect the premises to discover possible conditions which the landowner may not have any knowledge.
The plaintiff would have to prove that the landowner has actual or constructive knowledge of the candy apple, while the plaintiff exercising ordinary care lacked knowledge of the candy apple due to conditions within the landowner’s control. Meaning the plaintiff argued the venue through its cleaning and inspection procedures should have discovered and removed the candy apple. By failing to either have the proper procedures to discover the candy apple or to remove it, the venue is liable.
The plaintiff argued the venue should have had constructive knowledge of the candy apple. Constructive knowledge may be inferred when there is evidence that the owner lacked an inspection procedure. The burden to prove that inspection procedure rests with the landowner. Once the landowner shows there is an inspection procedure the burden shifts to the plaintiff to prove the hazard existed long enough that the landowners should have discovered it. The failure by the landowner to discover the hazard after that length of time is a breach of duty of ordinary care. The actual length of time is not stated in minutes or hours, but in the process.
The plaintiff argued that length of time had occurred. The landowner should have inspected the venue after the concert ended and before the plaintiff traversed the row. However, the court found Daniels v. Atlanta National League Baseball Club, Inc., 240 Ga. App. 751 (1999), held there was no duty to examine a venue immediately after the event. The Georgia Appellate court found Id. it would be unduly burdensome to keep Atlanta Braves fans in their seats while the stadium was cleaned after a game. Nor could the inspection be accomplished while the fans were exciting the stadium. The Georgia Appellate court also ruled that fans of a baseball game should expect to find trash in the aisles after a game.
[A] fan should reasonably expect and assume that trash will be dropped on the premises by the thousands of other fans exiting the stadium at the end of a game. The risk of a cup sitting on the aisle steps is not an ‘unreasonable risk of harm’ for one exiting a baseball stadium at the end of a game. Id
Georgia does not require a landowner to warrant the safety of all persons from all things. Only to exercise diligence in making the premises safe in a way, that business customers are used to. Requiring a venue to clean or just to inspect before the fans moved from their seats exceeded the bounds of ordinary care.
The defendant argued that during an event, they empty trash containers when they become full and clean the aisles leading to the rows. They have a policy of keeping the general areas free of debris and trash. However, they did not have a policy of cleaning the rows with people in their seats because it would not be possible. (Cue Seinfeld episode leaving a theater from the middle seat, “excuse me excuse me excuse me,” then add a broom or at least the patron’s response of “sit down I can’t see!”)
Finding that the burden of inspection after an event has ended was excessive, the burden shifted to the plaintiff to prove how long the candy apple had been on the floor prior to the performance starting.
No food was sold inside the venue by the defendant. However, people were free to bring food into the venue from the outside. Candy apples were sold by the defendant at their food court area. The plaintiff admitted that the plaintiff, and her family shared refreshments during the concert which they had brought into the venue and observed numerous people eating and drinking. The plaintiff was therefore, on notice that food could be found on the rows, aisles and floor of the venue.
The plaintiff argued the candy apple had been on the ground a long time because it had “fused” to the concrete. Removing the candy apple required an employee to pry it up with a spoon (makes you salivate in anticipation of your next candy apple; you can feel your teeth getting stuck now!). People responding to the scene to assist, who saw the apple, said it appeared to be intact, and not trashed, indicating it was not on the concrete in the hot Georgia weather for long. The concert venue doors opened at 7 pm, and the concert ended at 10 pm. From 5 pm to when the venue opened at 7 pm the venue was cleaned and washed by the defendant.
How long the candy apple had been on the floor was subject to speculation and as such, that estimate could not be used by the court. Since the plaintiff could not prove the candy apple had been on the floor earlier than when the venue opened, speculation was not going to be introduced into the court.
The court held for the defendant finding the plaintiff could not produce sufficient evidence that the defendant breached its duty of care in its maintenance of the venue.
Moss specializes in the legal issues of outdoor recreation, adventure travel, race and event companies and manufacturers of outdoor recreation equipment.
