Boyd v. Big Lots Stores, Inc.

SECOND DIVISION
MILLER, P. J.,
ANDREWS and BROWN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

July 31, 2018

In the Court of Appeals of Georgia
A18A1140. BOYD v. BIG LOTS STORES, INC.

ANDREWS, Judge.

Regina Boyd was an invitee at a store leased and occupied byBig Lots Stores,

Inc., which was located in a shopping center with a common area parking lot owned

by the shopping center owner/lessor. After Boyd left the Big Lots store, she was

injured when she slipped and fell in the parking lot while walking to her car. Boyd

sued Big Lots claiming that her injury was proximately caused by the negligent

failure of Big Lots: (1) to discharge the duty imposed on it by OCGA § 51-3-1 to

keep the store premises and approaches safe for invitees; or (2) to discharge a duty

it voluntarily assumed pursuant to Restatement (Second) of Torts § 324A to protect

its invitees from the dangerous condition in the parking lot of which it had notice.
Boyd appeals from the trial court’s grant of summary judgment in favor of Big

Lots on these claims, and for the reasons that follow, we affirm.

1. Under OCGA § 51-3-1, Big Lots owed a duty to its invitees to exercise

ordinary care to keep the store premises, and the approaches to the premises, “in a

reasonably safe condition.” Robinson v. Kroger Co., 268 Ga. 735, 740 (493 SE2d

403) (1997). After shopping at the store, Boyd left the store premises, walked away

from the store across a sidewalk in front of the store, and then continued walking

away from the store toward her car into the shopping center’s parking lot where she

slipped and fell in a liquid substance on the surface of the parking lot about 45 feet

from the store entrance. The shopping center parking lot was a common area owned

and maintained by the shopping center owner/lessor or its assignee. The undisputed

facts show that Boyd was not on the Big Lots store premises when she slipped and

fell in the common area parking lot, and the trial court correctly concluded that the

parking lot was not an approach to the store premises within the meaning of OCGA

§ 51-3-1.

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 Under Motel Properties, Inc. v. Miller, 263 Ga. 484, 486 (436 SE2d 196)

(1993), an approach to the premises for the purpose of OCGA § 51-3-1 means

that property directly contiguous, adjacent to, and touching

those entrywaystopremisesunder the controlof anowner or occupier of

land, through which the owner or occupier, by express or implied

invitation, has induced or led others to come upon his premises for

any lawful purpose, and through which such owner or occupier could

foresee a reasonable invitee would find it necessary or convenient to

traverse while entering or exiting in the course of the business for

which the invitationwasextended. By”contiguous,adjacentto,

andtouching,” we mean that property within the last few steps taken

by invitees, as opposed to “mere pedestrians,” as they enter or exit the

premises. It is onlywithinthe confinesof thislimitedapproachthat[a

dutyisimposed] ona landowner [or occupier]toexercise ordinarycare

over propertynot within the landowner’s [or occupier’s] control.

The extent of an approach to the premises under this definition
“necessarilydepends

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uponthe circumstances of a particular case –i.e., whatconstitutesthe ‘lastfew steps’

on foot is necessarily a lesser measure of proximity to the premises that the last
few

steps taken in the context of a faster moving automobile.” Combs v. Atlanta Auto

Auction, Inc., 287 Ga. App. 9, 15 (650 SE2d 709) (2007). Under the circumstances

of thiscase, we findthat, after Boyddepartedonfootfromthe store premises, walked

across a sidewalk in front of the store, and continued walking away from the store

into the common area parking lot to a point 45 feet from the store, she was no
longer

ona contiguous approach to the store premiseswhenshe slippedandfell. FoodLion,

Inc. v. Isaac, 261 Ga. App. 311, 312-313 (582 SE2d 476) (2003).

Moreover, the trial court correctly found that there was no basis in the record

toconclude thatthe non-contiguousparkinglotwhere Boydslippedandfellqualified for

the exception recognized in Motel Properties, supra, where “under certain

circumstances non-contiguous property can be deemed an approach because the

landowner [or occupier] extended the approach to his premises by some positive

action on his part, such as constructing a sidewalk, ramp, or other direct approach.”

Motel Properties, 263 Ga. at486(citation and punctuation omitted). Big Lots had no

responsibilitytomaintain the shoppingcenter parkinglot, which was a commonarea

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owned and maintained by the shopping center owner/lessor. However, the record

shows that, shortly after Boyd fell in the parking lot and was transported by an

ambulance, the Big Lots store manager became aware of the fall and put down some

“spillmagic” (a substance usedbyBigLots toabsorb spillsinthe store) over the spot

inthe parkinglotwhere Boydfell. The store manager saidthat, althoughthe shopping

center owner/lessor was responsible for keeping the parking lot safe, “my personal

belief or practice wouldbe if there’ssomethingthatneedsto be handledimmediately that

I can handle such as trash in the parking lot or an area that may need to be roped off

if there’s something wrong with it, we would take care of that ourselves temporarily

until someone could get there . . . [b]ut the parking lot has always been handled by

the landlord.” A Big Lots store employee deposed that, if she was informed about a

dangerous condition in the parking lot, her “personal practice” and “common sense”

would be to report it and then do something about it to prevent an injury, but she said

that was not required by Big Lots policy. And another Big Lots store employee said

that, if she got notice that there was a dangerous condition in the parking lot, it was

Big Lots policy for her to notify the store management. This evidence was not

sufficient to show that Big Lots extended the approach to its store over the

non-contiguous parking lot. Before finding that an owner or occupier has extended

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an approach to the premises over a non-contiguous property, “the requirement of an

act reflecting a landowner’s [or occupier’s] positive exercise of dominion over . . .

another’s property is necessary in order to avoid imposing upon invitors an

unknowable and impossible burden for maintaining an undefined circumference of

properties.” Id. at486(citationandpunctuationomitted). There was no evidence

sufficient to establish that Big Lots took any action reflecting a positive exercise of

dominion over the common area parking lot.

Boyd also contends that Big Lots had a duty under OCGA § 51-3-1 to take

steps to protect her from the hazardous condition in the parking lot, even if the

parking lot was notpart of the store premisesor approaches. Boyd pointsto evidence

that Big Lots knew its store invitees used the parking lot to enter and leave the store

and knew that hazardous conditions could arise in the parking lot. And evidence

showed that about 60 to 70 seconds before Boyd slipped and fell in the parking lot,

another Big Lots shopper, who had just walked into the store from the parking lot,

told a Big Lots employee that there was a slippery substance in the parking lot that

he had just slipped on and that needed to be cleaned up. Citing to Martin v. Six Flags

Over Georgia II, L.P., 301 Ga. 323 (801 SE2d 24) (2017), Boyd contends that,

because harm to store invitees due to hazards in the parking lot was foreseeable to

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Big Lots, OCGA § 51-3-1 imposed a duty on Big Lots to take reasonable steps

protect its invitees from those hazards.

In Martin, the Supreme Court considered whether Six Flags could be held

liable under OCGA § 51-3-1 for injuries incurred by a Six Flags invitee resulting

from a third party criminal attack which occurred a short distance off the Six Flags

premisesandapproachesshortlyafter the invitee haddepartedfromSixFlags. Martin

found that Six Flags had a duty under OCGA § 51-3-1 to exercise ordinary care to

keep its premises and approaches safe to protect its invitee from the attack which

subsequentlyoccurred off the premises and approaches. Martin, 301 Ga. at 328-332.

Martin recognized Six Flags’ liability for breach of the duty on the basis that,

althoughthe physicalattackoccurredoff the premisesandapproaches, the attackwas

conceived and executed in part while the attackers and the invitee were on the Six

Flags premises, and the attack was reasonably foreseeable to Six Flags. Id. at 328332.

Astowhether breach of the dutywas a proximate cause of the injuries sustained by the

invitee in the attack occurring off the premises and approaches, Martin declined to

grant certiorari to address that issue, but noted that the Court of Appeals considered

the jury verdict in favor of Six Flags and affirmed the jury’s finding of proximate

cause in Six Flags Over Georgia II, L.P. v. Martin, 335 Ga. App. 350 (780 SE2d 796)

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(2015), reversed in part by Martin, 301 Ga. 323 (2017). Martin, 301 Ga. at 332 n.6.

Although Martin found that the Court of Appeals opinion erroneously concludedthat

the physical attack occurred on an approach to the Six Flags premises (where Six

Flags had a duty of care under OCGA § 51-3-1), Martin “nonetheless agree[d] with

the Court [of Appeals] that the jury could find that Six Flags breached its duty to

exercise ordinary care in keeping its own premises safe and that its breach wasthe

proximate cause of the injuriesMartinsustained[inthe physicalattack]atthe CCT

busstop.” Id. at336-337.1Thus,the impositionof liabilityinMartinfor injuries caused

by the physical attack off the premises and approaches was based on breach of the

owner/occupier’s duty under OCGA § 51-3-1 to exercise ordinary care to maintain

safety and security within its premises and approaches (while the invitee was in those

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The proximate cause issue addressed by the Court of Appeals opinion was
whether Six Flags’breach of the dutyunder OCGA § 51-3-1 to keep its premises and
approaches safe was a proximate cause of injuries resulting from the attack that the
Court erroneously concluded occurred on an approach to the premises where Six
Flags exercised control and had a duty to keep the approach safe. Six Flags Over
Georgia, 335 Ga. App. at 353-363. The proximate cause issue raised (but not
discussed) in the Supreme Court’s Martin opinion was whether Six Flags’ breach of
the duty under OCGA § 51-3-1 to keep its premises and approaches safe was a
proximate cause of injuries resulting from the attack that Martin found occurred at
a location off the premises and approaches where Six Flags had no control and no
duty of care under OCGA § 51-3-1. Martin, 301 Ga. at 333-337.

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areas) to protect the invitee fromdangerous conditions under which the attack

wasconceivedandpartiallyexecutedon the premises. Martin, 301Ga. at 329

330. “[L]iability may arise from a breach of that duty [under OCGA § 51-3-1] that

proximately causes injuries even if the resulting injury ultimately is completed

beyond that territorial sphere.” Id. at330;see Wilkes v. Piggly Wiggly Southern,
Inc.,

207 Ga. App. 842 (429 SE2d 322) (1993).

Unlike Martin, the onlydangerous conditionwhichcausedBoyd’s slipandfall

was the static slippery condition in the parking lot, a common area owned and

maintained by the shopping center owner/lessor, which was not part of the Big
Lots

store premises or approaches. There was no evidence of any dangerous condition
existing on the Big Lots store premises or approaches. Accordingly, there was no
basis to conclude that, while Boyd was onthe BigLots store premises or
approaches, Big Lots breached a duty of care under OCGA § 51-3-1 to keep those
areas safe that wasa proximate cause of Boyd’ssubsequentslipandfallinthe
parkinglot. Itfollows that the rationale adopted in Martin, supra, for imposing
liability under OCGA § 513-1 for injuries incurred by a former invitee off the
premises and approaches has no application in the present case. The trial court
correctly granted summary judgment in favor of Big Lots on Boyd’s claim under
OCGA § 51-3-1. OCGA § 9-11-56.

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 2. The trial court correctly found there was no basis for Boyd’s claim that Big

Lots breached a duty it voluntarily assumed pursuant to Restatement (Second) of

Torts § 324A to protect her from the dangerous condition in the parking lot.

As set forth above, Boyd points to evidence: (1) that, about 60 to 70 seconds

before she slipped and fell in the parking lot, a Big Lots store employee was warned

by another invitee that there was a dangerous slippery condition in the parking lot,

and (2) that, if Big Lots store employees received notice of a dangerous condition in

the parking lot, they would sometimes respond by voluntarily undertaking to

temporarily address the danger until the owner/lessee could respond.

Under Section 324A,
[o]ne who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if (a) his failure to exercise
reasonable care increasesthe riskof suchharm, or (b) he hasundertaken
to perform a duty owed by the other to the third person, or (c) the harm
is suffered because of reliance of the other or the third person upon the
undertaking.

Section 324A has been adopted in Georgia as an accurate statement of the
common

law. Herrington v. Gaulden, 294 Ga. 285, 287 (751 SE2d 813) (2013). None of the

conditions for liability set forth in Section 324A apply in the present case.

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 As to Section 324A (a), this subsection

applies only to the extent that the alleged negligence of the defendant
exposes the injured person to a greater risk of harm than had existed
previously. Accordingly,Section 324A(a)applieswhena nonhazardous
condition is made hazardous through the negligence of a person who
changed its condition or caused it to be changed. Liability does not
attach for failing todecrease the risk of harm. Put another way, the mere
failure to abate a hazardous condition – without making it worse – does
not trigger the application of Section 324A (a).

Herrington, 294 Ga. at 288. (citations and punctuation omitted). Even if there was

evidence thatBigLotshad notice of the dangerous condition 60to70secondsbefore

Boyd slipped and fell, and would sometimes undertake to remove that kind of
condition to prevent injury, the mere failure to abate the hazardous condition did
not make it worse and did not trigger the application of Section 324A (a)
Under Section 324A (b), Boyd points to evidence showing that Big Lots

sometimes undertook a dutyowed bythe shopping center owner/lessor to invitees to

keep the parking lot in a safe condition. But even if Big Lots got notice of the hazard

60 to 70 seconds before the Boyd slipped and fell, there is no evidence that, during

that brief period, Big Lots undertook to perform a duty owed by the shopping center

owner/lessor to Boyd. And subsection (b) only applies where performance is to be

substitutedcompletelyfor thatof the partyonwhose behalf the undertakingiscarried out.

Fair v. CV Underground, LLC, 340 Ga. App. 790, 796 (798 SE2d 358) (2017);

Huggins v. Standard Fire Ins. Co., 166 Ga. App. 441, 442 (304 SE2d 397) (1983).

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We find no evidence that Big Lots completely took over the responsibility of the

owner/lessor tomaintainthe parkinglot. There wasnobasisfor imposition of liability

under Section 324A (b).

Finally, to impose liability under Section 324A (c) required a showing that

Boyd suffered the slip and fall injuries because of actual reliance by her or the

shopping center owner/lessor on an undertaking by Big Lots to remedy the parking

lot hazard. Even if Big Lots had notice of the slippery condition in the parking lot 60

to 70 seconds before the slip and fall, there was no basis to conclude that Boyd or the

shopping center owner/lessor relied on any undertaking by Big Lots to remedy the

hazard.

The trial court correctly granted summary judgment to Big Lots on Boyd’s

claims based on Section 324A. OCGA § 9-11-56.

Judgment affirmed. Miller, P. J., and Brown, J J., concur.

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