Property owners and their insureds take note: a Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building.

In Duff v. Bd. Of Regents of the Univ. Sys. Of Georgia, (hereafter, the “Trial Court Order”), the Plaintiff, a student at Georgia Perimeter College (“GPC”), exited a classroom and slipped and fell on rainwater tracked in by hundreds of students entering the building. It was undisputed that it had not been raining when Plaintiff first entered the building or that she had seen any rain on the floor on her way to class.

the Plaintiff testified that she slipped on “standing water,” but could not describe the depth, width, or quantity of water. She also testified that her clothing was wet when she got up.  A professor who assisted her after the fall testified that Plaintiff fell on a very thin layer of water analogous to the amount of water left after you take “a wet paper towel and wiped it across a surface.” The professor also testified that at the time she fell, students were standing outside of the classroom waiting to get in wearing wet clothes and carrying dripping umbrellas.

The trial court granted GPC’s motion for summary judgment, relying on Georgia precedent that rainwater is not in and of itself a hazardous condition unless plaintiff can demonstrate that there is an “unreasonable accumulation of water.”  Relying on a 2013 Court of Appeals’ case (Season All Flower Shop, Inc. v. Rorie, 323 Ga. App. 529), the trial court also held that summary judgment was appropriate even though the Plaintiff fell in an interior hallway as opposed to an entrance. Specifically, quoting the Appeals Court in Season All Flower, the trial court held that “‘water is apt to be found in any area frequented by people coming in from the rain outside, and not just at the ‘threshold’ of an entrance door.’” 

In a decision that must not be taken lightly by property owners and their insureds, the Court of Appeals reversed. The Court held that Plaintiff’s self-serving testimony regarding “standing water” (despite her inability to describe the dimensions of that water) created a question of fact and precluded summary judgment. Relying on Dickerson v. Guest Svcs. Co., 282 Ga. 771 (2007), the Court of Appeals wrote that although it is “common knowledge that the ground outside gets wet on rainy days, it cannot properly be applied to a portion of an interior space where [people] have no reason to expect water to accumulate on the floor.”

Our insured property owners and managers must take note of the Court of Appeals’ decision in Duff, as it appears to create a duty to continuously monitor during rain, particularly in buildings with heavy foot traffic. As the trial court warned, “[a] departure from the rainy day case law here [could] result in premises owners having to ‘continuously mop during a shower’ each time it rains simply because it is possible that one [person] does not know it is raining outside. This result would essentially eviscerate the protections that are afforded to premises owners on rainy days.” 

At the very least, the Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building, regardless of whether management places mats at the entrance. It all comes down to location. Business owners may feel pretty confident in his/her chances of getting out on a motion for summary judgment when a plaintiff’s slip and fall occurs at the entrance of the premises on a rainy day.  However, after Duff, plaintiffs will have an easier time creating a question of fact when they slip and fall on rain tracked into the interior of the building, which would preclude summary judgment.

In Cullara v. Building & Earth Sciences, Inc., Case No. A16A1735 (Ga. Ct. App., Dec. 8, 2016), the Georgia Court of Appeals seems to raise as many questions as it answers concerning an employer’s duty to investigate an employee before entrusting the employee with a company vehicle. In this case, a prospective employee at Building & Earth Sciences (“BES”) stated in his application that his criminal history consisted of only a prior conviction for possession of cocaine. BES did a background check on the employee, including his employment history, credit history, Social Security information, criminal history, and motor vehicle record. His driving record was clean, and the federal criminal history showed no convictions. One Saturday, a few months after the employee was hired, his supervisor allowed him to borrow a company truck to move a personal item to the employee’s new home. Several beers later, the employee collided with Plaintiff. The employee pled guilty to DUI.

The ensuing lawsuit included a claim against BES for negligent entrustment. In his deposition, the employee gave inconsistent testimony concerning an interview he had with BES prior to being hired. He testified again and again that he could not remember whether he told GES in the interview anything about his criminal history other than the cocaine conviction and a DUI conviction in 2002. He did have several prior DUI convictions, however, and in other parts of his deposition, he testified that he told the GES interviewers about all of his criminal history, including the prior DUIs. The trial court granted BES’s Motion for Summary Judgment, based on a finding that the employee reported only the prior cocaine conviction and the one prior DUI, and that such evidence was insufficient to support a claim of negligent entrustment. The Court of Appeals reversed, ruling the trial court improperly failed to consider the contrary evidence in the light most favorable to the plaintiff, the non-movant. The Court also rejected BES’s argument that an employer could rely solely on an investigation into an employee’s criminal history and driving record.

Given the conflicting evidence concerning the employer’s knowledge of the employee’s habitual recklessness, the Court’s decision is not surprising. The opinion, however, raises other unanswered questions. First, although the plaintiff also argued the trial court “failed to consider whether BES voluntarily assumed a duty to investigate the former employee’s driving background,” the Court reversed summary judgment only on the basis that there was an issue of fact concerning the employer’s knowledge of the multiple prior DUI convictions. The Court discussed neither the duty to investigate nor the sufficiency of any such investigation. The Court did give hints that the employer’s investigation fell short, however, pointing out the motor vehicle report “searched only for violations in the preceding three years,” and by dropping a footnote that said, while the employer conducted a federal criminal search on the employee, “[t]here is no explanation why BES did not order a state criminal background report.” Second, the Court leaves unexplained its statement that “the issue is whether BES knew or should have known that [the employee] was a high risk driver.” (Emphasis added.) This statement flatly contradicts established law and the Court’s own prior statement in the same case that to prove negligent entrustment, the plaintiff must show that the vehicle owner entrusted the vehicle to another “with actual knowledge that the driver is incompetent or habitually reckless.” (Emphasis added.) Can it be assumed that the Court’s inclusion of constructive knowledge is an inadvertent misstatement of the law on negligent entrustment, or is the Court attempting to establish an employer’s duty to investigate potential employees’ driving records?

What should business owners do before allowing employees to drive company vehicles? If you do a background check, do a thorough job. Get both the federal and state criminal records, and get a seven-year motor vehicle record, not just a three-year. Document any pre-hire interviews. You will not only increase your chances of getting summary judgment in claims of negligent entrustment, you will potentially keep an unsafe driver off the roads.

In the recent case Pirkle v. QuikTrip Corp., 2014 Ga. App. Lexis 34, the Court of Appeals upheld summary judgment in favor of the Defendant QuikTrip on the grounds that Plaintiff’s evidence of the Defendant’s actual or constructive knowledge of liquid on the floor was speculative at best.

In this case, Plaintiff, Carlos Pirkle, claimed that he slipped and fell on water located next to the checkout counter of the store. Plaintiff’s evidence as to QuikTrip’s actual knowledge of the liquid consisted of witness testimony stating (1) that a store employee placed a bucket and mop to the right side of the checkout counter shortly before Pirkle’s fall, and (2) that another customer had dropped a package of bottled water near the area where Pirkle fell shortly before the incident. However, there were no reports of any spills or liquid on the floor prior to Pirkle’s fall and Plaintiff even testified that he did not recall seeing any water in the area of his fall when he entered the store. The video from QuikTrip’s security camera showed Pirkle walk into the store and several other customers walk in the same area where Pirkle’s fall occurred.

The Court held that Plaintiff’s evidence was speculative, at best, as to what caused Pirkle’s fall and, therefore, did not establish actual knowledge. To rebut Plaintiff’s claims as to constructive notice, QuikTrip produced inspection logs which showed that an employee performed an inspection of the floors every 30 minutes, one having been performed in the specific area of Pirkle’s fall just 8 minutes prior to the incident. The Court held that where the property owner can prove that an inspection occurred “within a brief period” before an invitee’s fall, the inspection procedure will be deemed adequate and reasonable.

The defense of this case was helped in large part by the maintenance of routine inspection records and video surveillance. We should continue to advise our property owner clients of the importance of maintaining such records and how doing so can defeat a plaintiff’s claim that the owner had knowledge of a dangerous condition.