Georgia case law updates and legal news
Edited By George Washington

The Atlanta Gleaner.

May 03, 2023.

Gutierrez v. Six Flags Over Georgia II, LLP, No. A23A0607, 2023 WL 3140294 (Ga. Ct. App. Apr. 28, 2023)
#premise liability #six flags #sidewalks have cracks
Rosalinda Gutierrez appeals after the trial court granted Six Flags Over Georgia II, LLP's (“Six Flags”) motion for summary judgment in Gutierrez's negligence action after she slipped and fell in Six Flags's parking lot. AFFIRMED.

“We apply a de novo standard of review to an appeal from the grant of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in favor of the opponent of summary judgment.” Wentworth v. Eckerd Corp., 248 Ga. App. 94, 94, 545 S.E.2d 647 (2001).

So viewed, the evidence shows that Gutierrez visited Six Flags on July 22, 2018, accompanied by her two daughters and grandson. As she was walking toward the park's entrance, she “fell to the ground, striking her head and other body parts on the concrete.” As later documented in photographs, there was a crack in the pavement of the walkway Gutierrez was using to enter the park that created a lip on which she tripped. Because the area where the crack was located was at an elevation change/surface transition in the walkway, pre-existing yellow paint was present over the walkway where the crack had formed.

Gutierrez sued Six Flags for negligence, alleging that Six Flags's constructive and/or actual knowledge of the dangerous condition caused by the crack, along with its failure to remedy the allegedly dangerous condition, constituted a breach of the duty Six Flags owed to Gutierrez as its invitee. She alleged that as a result of the fall, she suffered “serious and permanent injuries,” including a concussion, a left knee meniscus tear, and other injuries to her back and neck.

In her deposition, Gutierrez testified that as she was walking into the park, her daughters and her grandson were walking in front of her. She stated that it was not overly crowded, and she was not distracted while walking; she was looking straight ahead and wearing appropriate footwear for the occasion. She could not recall seeing the crack before falling down. Her daughters helped her up after the fall, and she went to the park's medical station.

Six Flags's corporate representative testified that the company's safety policies mandate that employees report to a supervisor any worn, loose, uneven, or broken walkway surfaces. Indeed, an audit report from the day of Gutierrez's fall showed that a Six Flags employee had inspected the property that day. Although the audit report noted “potholes” in the parking lot, the walkways were marked as “safe” by the employee.

After a hearing on Six Flags's motion for summary judgment, a transcript of which does not appear in the record, the trial court granted summary judgment to Six Flags.

  • First, the trial court determined that the dispositive issue was “whether the crack and condition of the pavement was ‘readily discernible’ to someone exercising reasonable care for her own safety.”

  • Because the crack in the sidewalk was a static condition and Gutierrez was not obstructed from seeing it, the court deemed Gutierrez to have at least equal knowledge of the hazard as Six Flags, and she therefore was not entitled to recover damages for her injuries. 

Gutierrez appealed.

1. In related claims of error, Gutierrez challenges the trial court's finding that the condition that caused her fall was open and obvious, thus imputing knowledge of the hazard onto her and implicitly finding that it could have been avoided with the exercise of ordinary care.

In Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b), 493 S.E.2d 403 (1997), our Supreme Court held that “in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Id. at 748 (2) (b), 493 S.E.2d 403. An “open and obvious” condition invokes the “plain view doctrine,” whereby constructive knowledge is imputed if an invitee confronts “a hazard in plain view at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall.” Id. 268 Ga. at 743 (1), 493 S.E.2d 403.

Gutierrez does not contest that the condition that caused her fall was static. Indeed, an uneven walkway is the quintessential example of a static condition. D'Elia v. Phillips Edison & Co. Ltd., 354 Ga. App. 696, 698, 839 S.E.2d 721 (2020). Gutierrez instead argues that whether the hazardous condition was open and obvious is a question that should have been left to a jury. We disagree. Gutierrez is correct that summary judgment is appropriate only where the “factual evidence is plain, palpable, and undisputed.” LeCroy v. Bragg, 319 Ga. App. 884, 886 (1), 739 S.E.2d 1 (2013). However, the record in her case leaves nothing for a jury to decide.

A static condition may be deemed open and obvious “[i]f nothing obstructs the invitee's ability to see the static condition, [because] the proprietor may safely assume that the invitee will see it and will realize any associated risks.” Rentz v. Prince of Albany, 340 Ga. App. 388, 390 (1), 797 S.E.2d 254 (2017) (citation and punctuation omitted). Here, the evidence showed that the condition in question was out in the open, with nothing to obstruct Gutierrez's view of it. Further, because it was located at the transition between surfaces, it was highlighted in yellow paint which could only increase its visibility. Thus, where the “static condition is apparent,” or open and obvious, “such that one looking ahead would necessarily see it, an invitee's failure to look will not relieve her from the responsibility for her misadventure.” Coral Hospitality-GA, LLC v. Givens, 363 Ga. App. 664, 665, 871 S.E.2d 325 (2022) (citation and punctuation omitted); see also James v. Sirmans, 299 Ga. App. 262, 263, 683 S.E.2d 354 (2009) (reiterating that “small cracks, holes and uneven spots” in pavement are common and, where nothing obstructs or interferes with a person's ability to see such a defect, “the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved”) (citation and punctuation omitted). Under these longstanding principles of Georgia law, Gutierrez's knowledge of the hazard is imputed and she cannot recover from injuries as a result of her failure to see it.

2. Gutierrez also argues that the distraction doctrine may serve to negate any knowledge imputed to her by the open and obvious nature of the condition at issue. She argues that (1) her family members walking in close proximity to her, (2) a roller coaster in view from the path on which she was walking, and (3) the other park patrons all distracted her from seeing the sidewalk's condition before she fell.

The distraction doctrine “holds that one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted.” Robinson, 268 Ga. at 744 (2) (a), 493 S.E.2d 403 (citation and punctuation omitted). Importantly, in this context, the term “necessarily” is “synonymous with ‘automatically’ and ‘unavoidably.’ ” Weickert v. Home Depot U.S.A., Inc., 347 Ga. App. 889, 895 (2) (a), 821 S.E.2d 110 (2018) (physical precedent only). This doctrine “is not an independent theory of recovery but may operate to excuse or negate a plaintiff's failure to discover the hazard when the source of the distraction is attributable to the defendant.” Wallace v. Nissan of Union City, 240 Ga. App. 658, 661 (2), 524 S.E.2d 542 (1999) (emphasis supplied).

Here, whether Gutierrez was walking too closely to her family or other patrons to observe a crack in the sidewalk would be at most a distraction of her own making, and thus not a basis for Six Flags's liability.

  • See Robinson, 268 Ga. at 744 (2) (a), 493 S.E.2d 403 (collecting cases in which a self-induced distraction cannot serve to excuse an invitee's failure to observe an otherwise open and obvious condition).

  • And, although a business displaying attention-seeking merchandise or signage within view of patrons navigating walkways may be considered distractions attributable to the premises owner, see Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 430 (1), 263 S.E.2d 171 (1979), we have clarified that this type of distraction raises a jury question only where the invitee testifies (or presents “some evidence”) that they did not see the hazard because of the distraction, Robinson, 268 Ga. at 745-746 (2) (a), 493 S.E.2d 403.

In the instant case, pretermitting whether or not a permanent structure such as a roller coaster could be considered a distraction, Gutierrez testified that she was looking ahead of her at the time of the fall, and made no mention of being distracted by the presence of a roller coaster. Indeed, she testified explicitly that she was not distracted at the time of the fall. Thus, any reference to such a distraction is mere speculation and would not form the basis to deny summary judgment. See Faulkner v. Crumbley, 357 Ga. App. 594, 595, 851 S.E.2d 164 (2020) (“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”) (citation and punctuation omitted).

Accordingly, Six Flags was entitled to summary judgment, and we affirm the trial court's order. Judgment affirmed.

Body v. State, No. A23A0395, 2023 WL 3140295 (Ga. Ct. App. Apr. 28, 2023)
#robbery #mistrial #placing character at issue #(it wasn’t an accident)
A jury found Jamal Body guilty of robbery by intimidation for taking items from Jamil Stevens during a fight that Body initiated. Body appeals from his conviction, arguing that the trial court erred in denying his motions for mistrial after a police officer testified in a way that violated the trial court's instructions and placed Body's character into issue. We find no abuse of discretion in the trial court's ruling, so we affirm.

1. Facts and procedural history.

Body does not challenge the sufficiency of the evidence, so we do not consider it. See Davenport v. State, 309 Ga. 385, 399 (4) (b), 846 S.E.2d 83 (2020). “But a review of the evidence here is relevant to [Body's] enumeration[ ] of error.” Redding v. State, 311 Ga. 757 (1) n. 2, 858 S.E.2d 469 (2021).

The evidence at trial showed that on the night of June 6, 2015, Stevens was standing in front of the house of his friend, David Jennings, when Body approached with some other men. The two men exchanged words, Body knocked Stevens's hat off of his head, and then Body began to punch and kick Stevens, knocking him to the ground. Stevens testified that he did not “fight” Body but merely acted to protect himself against Body's assault, but eyewitnesses to this incident described it as a “fight” in which Stevens participated, and for convenience we will refer to this incident in that way.

During the course of the fight, Stevens saw two of the other men drive away in Stevens's car. Although he told police that at some point he also heard gunshots, Stevens testified that he did not see Body or any of the other men with a gun. Stevens got to his feet and fled. Body chased Stevens and grabbed his phone from him as Stevens was dialing 911. Stevens then ran to an adjacent street and found someone to call 911 for him.

Stevens testified that Body pulled some necklaces off of him during the fight, but that he immediately was able to take them back from Body. Stevens also testified that after the fight his wallet, with cash inside, was missing. He testified that Body had taken the wallet from his back pocket during the fight, but there was other evidence that Stevens had left the wallet in his car. Several eyewitnesses to the fight testified that they did not see Body take anything from Stevens. His car was found abandoned with several items missing from it. His wallet was not in the car when it was recovered.

The state charged Body and a co-defendant with armed robbery and hijacking a motor vehicle. The trial court granted a directed verdict to the co-defendant at the end of the state's case-in-chief, and only two lesser-included charges against Body were ultimately presented to the jury: robbery by intimidation as a lesser-included offense of armed robbery, based on the taking of Stevens's jewelry, wallet, and money; and theft by taking as a lesser-included offense of hijacking a motor vehicle, based on the taking of his car. The jury found Body guilty of robbery by intimidation and acquitted him of theft by taking.

2. Body's motions for mistrial.

The sole error enumerated by Body on appeal is the trial court's denial of his motions for mistrial after a police officer testified in a way that implicated Body's character and arguably violated prior rulings by the trial court. Our review of this issue requires us to look closely at the circumstances before and during trial that led up to that testimony and those rulings.

Before trial, concerns arose about the fact that Jennings (Stevens's friend, in front of whose house the fight occurred) was unavailable to testify. Jennings had given a statement to police during their investigation, but the state was not able to secure his presence at trial, even though the trial court had issued a warrant for his arrest as a material witness.

Counsel for Body and his co-defendant feared that the state would elicit testimony from other witnesses suggesting that Jennings was not present because he was afraid of the two defendants, thereby implicating their characters. Body's counsel moved in limine to exclude any testimony that Jennings had been interviewed by the police, in order to prevent officers from suggesting in their testimony that Jennings was scared. He argued that “[t]here is absolutely no reason for [the state] to bring in that evidence other than to try to make it look like [the defendants] got rid of that witness or intimidated him in some way.”

The trial court provisionally denied the motion in limine but held that Body's counsel could renew it during trial, stating: “I want to hear how the evidence develops before I rule with finality on that issue.” 

The trial court also stated that he “tend[ed] to agree” with the arguments made by Body's counsel, explaining: “I can think of very few instances where this would be clearly in bounds, you know, where it would clearly be more appropriate for Mr. Jennings's demeanor to be put at issue or questioned about than any other witnesses.”

At trial, during direct examination, the lead police investigator testified that he interviewed Jennings. When asked when his initial meeting with Jennings took place, that officer gave a long, narrative answer that included the type of statements Body's counsel had sought to avoid:

I was able to get ahold of Mr. Jennings ... but he was very reluctant to speak with me, did not want to become involved. He seemed like there was definitely something to hide or definitely afraid or scared of Mr. Body and [the co-defendant]. However I was able to get an interview with Mr. Jennings. I got him to agree to meet me outside of his work because he didn't want anybody to see him getting or talking to the police at his place of employment.

Co-defendant's counsel objected and Body's counsel asked for a bench conference, at which he argued that the officer's testimony violated the trial court's pre-trial ruling. The trial court stated that he had “specifically ruled that [the witness] could not testify to what the (inaudible) was a witness appeared to be afraid or frightened.” When the prosecutor said that he did not recall that ruling, the trial court replied, “All right. Well, that was — that was my intent, is that he could not testify.” The trial court further explained:

I don't want the witness testifying to anything about a demeanor or surmising or speculating about the motives of the witnesses. I mean, he can testify to the statements that I think that if a witness said it's not hearsay, if a witness said I don't want to be seen at work talking to you, I think that's fair game but just someone seemed fearful or looked like they were afraid of these two, I don't want that testimony coming from this witness or any other witness.

In response to the prosecutor's request for clarification, the trial court stated that the officer “cannot testify that ... these witnesses looked like they were afraid of [the co-defendant] or Mr. Body.” The trial court also stated:

I recall ruling and I'm ruling again, that I do not want any motive (inaudible) to Mr. Jennings or his cooperation or lack of cooperation. I mean, the way I would see it is you would — this witness talked to Mr. Jennings, here is where the interview took place, here is when it took place, here is the steps he took to set it up, maybe even what he did in response to the interview, what was the next investigative step.... I've already ruled on this[.]

At that point, Body's counsel moved for a mistrial, which the trial court denied. Counsel and the trial court then discussed the phrasing of a curative instruction, ultimately settling on the following instruction that the trial court gave to the jury: “Ladies and gentlemen, you are to disregard any statement from one witness about the presence or absence at trial of any other witness.” Body's counsel did not object to the language of this curative instruction or renew his motion for mistrial at that time.

During the course of the discussion about the curative instruction, the prosecutor continued to press the trial court about the scope of the trial court's ruling limiting the police officer's testimony, and the following exchange occurred:

[PROSECUTOR]: So (inaudible) talk about demeanor.

COURT: No, he can't.

...

[PROSECUTOR]: Is that your ruling, Judge? Just to make sure because I need to tell [the officer].

COURT: I think either already testified to it and I think the horse is out of the barn on it, but I did not want him specifically testifying that.... (Inaudible) like they looked they were fearful of [the co-defendant] or they looked like they were fearful of Mr. Body....

[PROSECUTOR]: He can just generally say he seem[ed] nervous to talk to me.

COURT: I think that he appeared nervous, I think that would be fair but attributing the — by connecting the dots with one of these two defendants there is no way he can possibly do that. He can't know that.

[PROSECUTOR]: Absolutely. And I agree I was not that (inaudible) my intent.

COURT: Well, he said it once and I don't want him to say it again.

Outside the jury's presence, the prosecutor instructed the officer that he could testify to his general observations of Jennings's demeanor, such as that Jennings appeared nervous, but he could not “assign any motive or any reason why you think [Jennings] felt that way.” When asked by the trial court if he wanted to add anything to that instruction, Body's counsel replied that he did not.

Resuming direct examination, the prosecutor asked the officer about his general observations of Jennings's behavior. The officer responded:

When I spoke to Mr. Jennings on the phone he was very nervous, very evasive. I couldn't get him to commit to come down to the Police Department to give me a statement. I couldn't get him to commit to meeting me at his place of work to give me a statement, he just refused both of those. I finally got him to agree to meet me after he got off work away from his place of employment[.]

The officer stated that when he went to the designated meeting place, Jennings initially walked away from him. The officer testified:

Now, my immediate question to myself was, was he trying to evade me or was he just trying to be c[o]vert and didn't want anybody to see him, that I do not know. As soon as I stopped he got in the car, he slouched way down in the seat so nobody could see him. And then from there we drove and I told him we were going to go to the Public Safety Building so I could get the statement. He did not want to go to the Public Safety Building.

Body's counsel then objected and, outside the jury's presence, moved again for a mistrial, stating that the officer “did exactly what we wanted him not to do and that was state ‘because he did not want anyone to see him.’ ” The trial court replied, “Yeah.” The prosecutor denied that the officer was “trying to draw any characterization about the defendants in particular,” suggested that he may not have given a clear instruction to the officer, and argued that, in any event, there was no need for a mistrial.

The trial court denied the second motion for mistrial and ordered the jury to be reseated. No one requested a curative instruction and the trial court did not give one. At that point, the prosecutor began a new line of questioning that did not concern Jennings.

In his motion for new trial, Body argued that the trial court erred in not declaring a mistrial because the officer's testimony amounted to improper character evidence and was given in violation of the trial court's prior rulings. The trial court denied the motion.

In his appellate brief, Body enumerates as error the trial court's denial of his motions for mistrial “after [the officer] testified David Jennings ‘seemed ... definitely scared of’ Body, and persisted in ascribing the motive, ‘he ... didn't want anybody to see him,’ in describing Jennings’ behavior.”

3. Analysis.

Body argues that he was entitled to a mistrial because he was unfairly prejudiced by the officer's testimony that Jennings was scared of Body and did not want anybody to see him meeting with law enforcement. “The refusal to grant a mistrial based on a prejudicial comment lies within the discretion of the trial court, and [we] will not interfere with that discretion on appeal in the absence of manifest abuse.” Golden v. State, 310 Ga. 538, 546 (4), 852 S.E.2d 524 (2020) (citation and punctuation omitted). “Trial courts are vested with great discretion to grant or deny mistrials because they are in the best possible position to determine whether one is warranted.” Allen v. State, 315 Ga. 524, 533 (4) (c), 883 S.E.2d 746 (2023) (citation and punctuation omitted).

In reviewing a trial court's exercise of discretion in denying a motion for mistrial based on the improper admission of bad character evidence, we consider “the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” Thrift v. State, 310 Ga. 499, 503 (3), 852 S.E.2d 560 (2020) (citation and punctuation omitted). “We also consider additional facts like whether the reference to the improper character evidence is isolated and brief, whether the jury's exposure was repeated or extensive, and whether the introduction of the objectionable evidence was inadvertent or whether it was deliberately elicited by the [s]tate.” Smallwood v. State, 334 Ga. App. 224, 225-226 (1), 779 S.E.2d 1 (2015) (citation and punctuation omitted). We will not disturb a trial court's exercise of discretion in denying a motion for mistrial “unless a mistrial is essential to preserve the defendant's right to a fair trial.” Allen, 315 Ga. at 532 (4) (c) (citation and punctuation omitted). Accord Swims v. State, 307 Ga. 651, 654-655 (2), 838 S.E.2d 751 (2020).

With these considerations in mind, we find no abuse of discretion by the trial court. Arguably the officer's testimony, which suggested that Jennings was afraid of Body, put Body's character into evidence. See Cannon v. State, 288 Ga. 225, 228 (4), 702 S.E.2d 845 (2010). But our Supreme Court has held that “a nonresponsive answer that impacts negatively on a defendant's character does not improperly place his character in issue.” Walker v. State, 282 Ga. 703, 705 (2), 653 S.E.2d 468 (2007) (citation and punctuation omitted). See Hansley v. State, 267 Ga. 48, 49 (3), 472 S.E.2d 305 (1996) (relying on the principle that a nonresponsive answer does not improperly place a defendant's character in issue to hold that the trial court did not err in denying motion for mistrial after witness gave nonresponsive testimony that he had seen the defendant pull a gun on another person). The testimony at issue in this case was not responsive to the prosecutor's questions and, as to the testimony about Jennings “slouch[ing] way down in the seat so nobody could see him,” directly disregarded the prosecutor's instructions not to assign a motive to Jennings.

Even if we view the officer's testimony to improperly place Body's character into evidence, the mere fact that a witness testifies to being afraid of a defendant does not require a mistrial in every case. There are many instances where Georgia appellate courts have found no abuse of discretion in a trial court's decision to deny a motion for mistrial after a witness testified to being afraid of the defendant.

  • See, e. g., Kemp v. State, 303 Ga. 385, 397 (2) (d), 810 S.E.2d 515 (2018) (trial court did not abuse discretion in denying motion for mistrial after a witness implied in his testimony that the defendants had the ability to have others kill him and that he was courageous to testify in the face of death threats);

  • Rafi v. State, 289 Ga. 716, 720 (4), 715 S.E.2d 113 (2011) (trial court did not abuse discretion in denying motion for mistrial after eyewitness testified, in contravention of earlier trial court ruling, that he was not completely forthcoming with police because people who “snitch on a dope guy [are] going to be killed”);

  • Ivester v. State, 252 Ga. 333, 336 (3), 313 S.E.2d 674 (1984) (trial court did not err in refusing to grant a mistrial after a police officer testified that a witness to the incident was scared to testify);

  • Bowen v. State, 304 Ga. App. 819, 823-824 (2), 697 S.E.2d 898 (2010) (trial court did not err in denying motion for mistrial after a witness testified that the defendant had escaped from jail before and that she was afraid he would come to her house and hurt her and her family).

Finally, although we agree with Body that this case did not involve overwhelming evidence of Body's guilt, that does not require us to reverse. The jury found Body guilty of a single offense, robbery by intimidation, which occurs when, with the intent to commit theft, a person takes property from another “[b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself[.]” OCGA § 16-8-40 (a) (2). And as detailed above, the evidence was mixed as to whether Body took anything from Stevens. The state only charged Body with taking Stevens's necklaces and his wallet containing cash, but Stevens immediately recovered the necklaces and there was some evidence that he had left his wallet in his car, notwithstanding his testimony to the contrary.

But the fact that Jennings was afraid of Body has nothing to do with whether Body took anything from Stevens. Jennings was not a trial witness and his credibility was not at issue. And the evidence did overwhelmingly show that Body was engaged in the fight with Stevens. Simply put, any prejudicial impact from the officer's testimony was not strong, which distinguishes this case from decisions cited by Body. See, e. g., Coleman v. State, 308 Ga. App. 731, 735-736 (2), 708 S.E.2d 638 (2011) (physical precedent only) (reversing the trial court's refusal to grant a mistrial after a witness improperly testified that the defendants’ child had been placed in foster care, because that statement created the impression that the defendants had committed the charged offense, cruelty to children); Jackson v. State, 302 Ga. App. 412, 417 (1), 691 S.E.2d 553 (2010) (focusing on the strong prejudicial impact of an improper reference to the defendant's incarceration in reversing the trial court's denial of a motion for mistrial), overruled in part on other grounds by State v. Lane, 308 Ga. 10, 24, 838 S.E.2d 808 (2020).

For these reasons, Body has not shown that “a mistrial is essential to preserve [his] right to a fair trial.” Allen, ––– Ga. at –––– (4) (c), 883 S.E.2d 746. So we will not disturb the trial court's exercise of discretion in denying his motion for mistrial. See id.

Judgment affirmed.