Krogering, Again

Two weeks ago I wrote about not being able to find the opinion regarding a supposed Georgia Supreme Court ruling (involving a Kroger grocery store) in which the judge asked the woman involved if she could have prevented the injury by some reasonable method, and that because she could have, the owner of the store could not be held liable.

The way the description was written made it sound like a barefoot case. Well, the person who wrote about it clarified things. It was not a barefoot case, and he even gave the name of the case, so I could look it up.

Unfortunately, it really doesn’t say what he says it says. In fact, the court case he refers to makes it easier, barefoot or not, to sue and win such a negligence case in Georgia.

I wrote about not finding the case in Barefoot v. Kroger. The context of the comments I was responding to really did make it sound as if the Georgia Supreme Court case regarded a barefoot injury. It didn’t. Instead, the case involved a woman slipping on “a green substance.” The case is Robinson v. Kroger.

However, the finding of the court had nothing (ok, little) to do with the plaintiff preventing an injury, except to talk about longstanding slip-and-fall tort law. In reality, the Georgia Supreme Court ruling told the Trial Court and the Appeals Court in the case that they were wrong to have thrown the case out of court, and instead sent the case back down for a real trial!

To understand this, I need to say a few things about what it means to (colloquially) have a case throw out of court.

After a plaintiff files a Complaint, there are a couple of ways that the suit can be resolved without going to trial. We discussed one of those in my Update on the Vibram Lawsuit. In that case, Vibram asked the court to dismiss the case for failure to state a claim; that means that even if the allegations in the complaint are true, the plaintiff cannot win. It happens occasionally.

The much more common way that suits get tossed is by summary judgment. For a summary judgment, a fair bit of discovery has been done, and upon motion, the judge decides that there are no material facts to be litigated and that one side or the other has a legal right to judgment.

Keep in mind that in the U.S. legal system, the judges are in charge of deciding the law, and the jury is in charge of deciding the facts. (We’re talking civil litigation here, and there is some dispute over this in criminal cases with jury nullification.) If there are no material facts (that is, facts that would make a difference in the final outcome), then all that’s left is for the judge to apply the law to the facts. That can obviously be done without a trial, so summary judgment is appropriate.

Back to Robinson v. Kroger.

In Robinson v. Kroger, the trial court ruled (and the Appeals Court affirmed) that Mrs. Robinson (where have you gone?) should have been watching her every step, and that would have prevented her from stepping on and slipping the green slime. Now, it turns out that in Georgia, more and more such negligence lawsuits were being decided on summary judgment, to that point that basically no injured person could ever win such a case. The Georgia Supreme Court stepped in to restore balance to such tort cases.

It is long-standing law that a store has a duty to exercise ordinary care in keeping the premises safe. From the ruling (internal citations removed):

While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap. The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

As I said, this is standard tort law.

A customer, again longstanding law, has a duty to exercise reasonable care for their personal safety. From the ruling (again, internal citations and quotation marks removed) (“invitee” means the customer):

An invitee is charged with exercising ordinary care for personal safety and using ordinary care to avoid the effect of the owner/occupier’s negligence after that negligence becomes apparent to the invitee or in the exercise of ordinary care the invitee should have learned of it. In the exercise of ordinary care, the invitee must use all senses to discover and avoid hurtful things. The established standard is whether, taking everything into account the act is one which the common sense of mankind pronounces want[s] of such prudence as the ordinarily careful person would use in a like situation. The invitee is not bound to avoid hazards not usually present on the premises and which the invitee, exercising ordinary care, did not observe, and the invitee is not required, in all circumstances, to look continuously at the floor, without intermission, for defects in the floor. The invitee is not barred of a recovery simply because by extreme care on his part it would have been possible for him to have discerned the articles negligently left in the aisles or passageways customarily used by the store patrons at the merchant’s tacit invitation.

Again, this too is standard tort law.

What had happened in Georgia is that injured customers had been held to a standard of exercising extreme care. This Georgia Supreme Court ruling corrected that. As it said,

Demanding as a matter of law that an invitee visually inspect each footfall requires an invitee to look continuously at the floor for defects, a task an invitee is not required to perform since the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe for the invitee and continues to exercise such care while the invitee remains on the premises.

And here’s how it applies to the law. Summary judgment simply is not appropriate in these situations. “[I]ssues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication . . . but should be resolved by trial in the ordinary manner.”

So, the case was returned to the trial court.

Here’s their summary:

In sum, we remind members of the judiciary that the “routine” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed. We hold that an invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation. We further hold that an invitee presents some evidence of the exercise of reasonable care for personal safety when the invitee explains that something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality caused him not to look at the site of the hazard.

This is pretty much the way I described things in the South Carolina barefoot case I’ve discussed before, when I wrote about A Real Barefoot Lawsuit. In that case, the S.C. Supreme Court also returned a case that had been decided on summary judgment back to the trial court to make determinations as to issue of fact.

What this means from a barefooter’s perspective is that lawsuits are more expensive to defend against. As I’ve said before, though, all this applies to other footwear, such as high heels and flip-flops, for which there are myriads of lawsuits for injuries (heck, Mrs. Robinson was shod when she fell—if she had been barefoot she might have felt the green slime and avoided slipping). Yet stores never decide to ban those kinds of footwear. And the usual issue of comparative negligence almost certainly would preclude collecting for a barefoot injury, not to mention that any jury would look horribly askance at the idea of making an award to a barefooted customer.

Finally, I would once again like to caution barefooters from making these sorts of errors when trying convince a business to let us in barefoot. It is easy enough for a business owner to check up on what we tell them. And if they discover that we got it wrong, that we are perpetuating our own myths, then they won’t believe us on anything.

And that hurts us in the long run.