Case Law Update: Court of Appeals Reaffirms Children Are Not Inherently Dangerous

Mabry & McClelland obtains summary judgment for client in premises liability case

While issues of premises liability are generally not susceptible to summary judgment, Mabry & McClelland recently obtained summary judgment in favor of Ingles Markets, Inc. where a customer sued for injuries sustained when she was run into and knocked down by another customer’s child. In Ingles Markets, Inc. v. Carroll, 2014 WL5394129 (October 24, 2014), Plaintiff first saw the young boy “walking fast” out of the corner of her eye. The next thing she knew, he had run into her and knocked her to the ground. The Georgia Court of Appeals overturned the trial court’s denial of Ingles’ motion for summary judgment because there was no evidence that Ingles had actual or constructive knowledge of the child running in the store prior to plaintiff’s fall.

In premises liability cases, proof of a fall only gives rise to liability on the part of a proprietor who had superior knowledge of a condition that exposed the invitee to an unreasonable risk of harm. Drew v. Istar Financial, Inc. 291 Ga. App. 323, 324-325 (2008). In order to recover, an invitee (in this case, the grocery store customer) must prove that (1) the owner/operator had actual or constructive knowledge of the hazard; and (2) the invitee lacked knowledge of the hazard despite the exercise of ordinary care. Id. Where there is no actual knowledge of the hazard, constructive knowledge may be based on evidence that the condition lasted so long that the defendant should have discovered it or on evidence that an employee of defendant was in the vicinity and could have easily seen the problem. Id. If the owner/operator has no actual or constructive knowledge of the hazard, summary judgment is appropriate because the invitee cannot establish that the owner/operator had greater knowledge of the hazard than the invitee. Id.

In Carroll, Ingles had neither actual nor constructive knowledge of the hazard. None of Ingles’ employees saw the child running before plaintiff’s fall. In fact, there was no evidence the boy had been running for more than a few seconds before colliding with the Plaintiff. Generally, proprietors have no duty to patrol their premises continuously for hazards. Carroll at *3 (citing Ginn v. Grothere, 220 Ga. App. 661, 663 (1996)). Absent extraordinary circumstances making it more likely that a customer may be injured by other customer(s), a proprietor has no duty to provide attendants, ushers, or even more rigorous supervision to guard against such potential injury. Carroll at *2. As every parent knows, children sometimes act recklessly and without warning. Legally speaking though, children are not considered inherently dangerous instrumentalities, so the mere presence of a child in Ingles’ store did not create a hazard per se. See, Belk-Hudson Co. v. Davis, 132 Ga. App. 237, 240 (1974) (“Children have not, as of yet, been classified as inherently dangerous instrumentalities, and we are not prepared to do so now.”). However, if Ingles had actual or constructive knowledge that the boy was running prior to the accident, the question of whether they took reasonable actions to guard customers from potential injury would likely be one for a jury.

Tracey Pruiett