The Atlanta Gleaner.

Brixmor New Chastain Corners SC, LLC v. James, No. A22A1499, 2023 WL 2029185 (Ga. Ct. App. Feb. 16, 2023)
#premise liability #parking lot #knowledge of hazard #spoliation
The plaintiff was in the parking lot of a shopping center and tripped over a concrete barrier that separated the parking spaces. Brixmor New Chastain Corners SC, LLC, is the owner of the shopping center and appeals the denial of its motion for summary judgment. Brixmor argues that it is entitled to summary judgment because, as a matter of law, the structure that tripped James was not a hazard and because James already had traversed it. Court of Appeals holds that whether that structure is a hazard and whether James had constructive knowledge of the alleged hazard from traversing it before are jury questions. Brixmor also argues that the trial court erred by imposing a spoliation sanction. Court of Appeals holds that the trial court applied an incorrect legal standard. Affirms the denial of Brixmor's motion for summary judgment. Vacates the trial court's spoliation ruling and remands for proceedings consistent with the opinion.

1. Summary judgment evidence.

The record shows that on the evening of January 12, 2020, while it was dark outside, James and her husband went to Brewster's Neighborhood Grill to watch a football game with friends. Brewster's is located in a shopping center owned by Brixmor. James and her husband parked in a space in the parking lot, walked to Brewster's, and watched the game. They left Brewster's at half time.

As James was walking to their car, she tripped on a concrete barrier that separated their parking space from an area designated for motorcycle parking. James was injured in the fall. The barrier consisted of three concrete parking bumpers or wheel stops laid end to end to separate the parking space from the motorcycle parking area. The parking bumpers were adjacent to the parking space, not across the front of the parking space as is usual with parking bumpers. They were light in color, either white or the color of natural concrete, and rested on the painted white line of the parking space.

Prior to James's fall, the parking bumpers had been painted red and yellow. About a month before James's fall, however, asphalt work was performed on the parking lot. At the completion of the project, new parking bumpers were installed but they were not painted the contrasting yellow and red colors and instead were left their natural color.

Five days after James's fall, Brixmor had the parking bumpers painted yellow at the request of the owner of Brewster's. Brixmor conceded that it is easier to see parking bumpers painted yellow than parking bumpers left in their natural, light color.

2. Summary judgment.

Brixmor argues that it is entitled to summary judgment because wheel stops and parking bumpers are not hazards as a matter of law and because James already had traversed the parking bumpers before she fell. Court of Appeals disagrees.

(a) Wheel stops and parking bumpers may constitute hazards.

The threshold point of our inquiry in a trip-and-fall case is the existence of a hazardous condition on the premises. Brixmor argues that invitees must always anticipate wheel stops and parking bumpers in parking lots, so that in most cases, as a matter of law, such structures may not be considered to be a hazard.

In the current case, viewing the evidence in James's favor, the record shows that the placement of the parking bumpers adjacent to the parking space, instead of at its front, was unusual and that the bumpers were not distinguished by color from the white parking stripe on which they rested. “We find this evidence sufficient to create a jury issue as to whether the parking bumper[s] created a hazard.” Pinder v. H & H Food Svcs., 326 Ga. App. 493, 499 (1) (2014) (physical precedent only). See also Freyer v. Silver, 234 Ga. App. 243 (1998) (post-Robinson case in which court held that whether plaintiff should have seen the hazardous condition, a catch basin in a parking lot, was a jury question).

Brixmor argues that the prior traversal rule entitles it to summary judgment. It does not.

“Georgia's longstanding prior traversal rule provides that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom.” Gervin v. The Retail Property Trust, 354 Ga. App. 11, 13 (1) (2020).

The rule is not without limit, however. The rule applies only to cases involving a static condition that is readily discernible to a person exercising reasonable care for his own safety. Moreover, ... it is the plaintiff's knowledge of the specific hazard precipitating a trip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids.

Viewing the evidence in the light most favorable to James, Court of Appeals cannot conclude as a matter of law that she had knowledge equal to or superior than Brixmor's knowledge of the parking bumpers. The evidence of whether James successfully navigated the specific hazard is not undisputed. Viewed in James's favor, her testimony was simply that she had previously walked within close proximity of the parking bumpers when she walked to Brewster's, she did not notice the parking bumpers then, and she was not certain that she took the same route when she returned to the car. Second the placement of the parking bumpers adjacent to the parking space, instead of at its end, was unusual and the bumpers were not distinguished by color from the white parking stripe on which they rested, making them harder to see than they would have been had they been painted a contrasting color.

A reasonable juror would be entitled to find that James did not precisely retrace her exact path, step by step, from earlier in the evening when she returned to her vehicle. Moreover, a reasonable juror also could find that the difficult-to-see parking bumpers would not have been visible even if James's earlier path of travel had taken her right next to them. The trial court did not err in denying Brixmor's motion for summary judgment.

3. Spoliation.

Brixmor enumerates as error the trial court's spoliation ruling. The trial court ruled that Brixmor spoliated evidence by painting the parking bumpers yellow five days after James's fall and that, as a sanction, Brixmor would be barred from introducing evidence or argument that the parking bumpers were not a potential hazard. Court of Appeals rejects Brixmor's other challenges to the spoliation ruling, but agree that the trial court applied an incorrect legal standard. The lower court’s spoliation ruling is vacated.

Brixmor argues that the parking bumpers were not destroyed, but only painted, so they were not spoliated. “Spoliation refers to the destruction, failure to preserve, or material alteration of evidence that is relevant to contemplated or pending litigation.” Cooper Tire & Rubber Co. v. Koch, 339 Ga. App. 357, 359 (2016). The trial court did not abuse her discretion by implicitly finding that Brixmor materially altered the parking bumpers by painting them yellow.

Brixmor argues that the trial court erred by failing to apply the subsequent remedial measure rule to its analysis. That rule, found at OCGA § 24-4-407, generally prohibits the admission in civil proceedings of evidence of remedial measures taken to make an injury or harm less likely to recur. Brixmor cites no authority — and the court finds none — to support its argument that the trial court was required to consider the doctrine of subsequent remedial measures, a specific evidentiary exclusionary rule, when ruling on spoliation. So it has not shown an abuse of discretion in this regard.

Brixmor argues that the trial court erred by relying on unsworn statements from James's witnesses, but it fails to specify any such statements. And although in its order, the trial court referred to a building code violation — which, perhaps, is the reference about which Brixmor complains — that reference concerned the denial of summary judgment, not spoliation. Brixmor has not shown an abuse of discretion.

But court agrees with Brixmor's argument that the trial court did not apply the correct legal analysis. Brixmor had a duty to preserve evidence only if it knew or reasonably should have foreseen that James was contemplating litigation. See Phillips v. Harmon, 297 Ga. at 396-397 (II). The trial court misstated the duty, finding that it is triggered “where a party is instructed to preserve evidence and fails to do so, and also when a party fails to preserve evidence after contemplating litigation.” It is true that a plaintiff's duty to preserve evidence “arises when that party contemplates litigation, inasmuch as litigation is obviously foreseeable to the plaintiff at that point.” Id. at 396 (II). But “the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence” id., and a defendant's “duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation....” Id.

There is no indication that the trial court considered whether Brixmor knew or reasonably should have known that James was contemplating litigation when Brixmor had the parking bumpers painted yellow five days after James's fall. “The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.” Kitchens v. Brusman, 303 Ga. App. 703, 707 (1) (a).

“Although we recognize the broad range of conclusions a trial court may reach in the exercise of its discretion, it abuses that discretion when it applies an incorrect legal standard.” Court of Appeals vacates the trial court's finding of spoliation and remands the case with direction.