USCA11 Case: 20-14549 Date Filed: 03/08/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14549
____________________
MARGARET HELTON,
Plaintiff-Appellant,
versus
STEAK N SHAKE, INC.,
ABC CORPORATIONS (1-3),
JOHN/JANE DOES (1-3),
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-02181-WMR
____________________
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2 Opinion of the Court 20-14549
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Margaret Helton appeals the district court’s grant of
summary judgment in favor of Steak N’ Shake, Inc., the corporate
owner of a fast-food restaurant in Sandy Springs, Georgia, on her
premises liability “slip and fall” tort suit. Helton raises two
principal issues. First, Helton claims that the district court erred by
concluding that, because of visible “wet floor” signs, she had equal
knowledge of the water hazard. Second, Helton argues that the
district court failed to credit her rebuttal evidence establishing
material disputes of fact as to whether she exercised reasonable
care for her safety. But unfortunately for Helton, the restaurant
recorded her on video, which, in turn, reveals no reason that she
was unable to see the “wet floor” signs. Hence, after review and
with the benefit of oral argument, we affirm.
I. BACKGROUND
A. Factual Background
On March 5, 2018, Helton went to the Steak N’ Shake to
enjoy a late lunch with her family. Shortly before her arrival, a
Steak N’ Shake employee mopped the floor on the side of the
restaurant opposite from where Helton eventually sat, placing and
leaving a wet floor sign near the restaurant’s drink machine. When
she concluded, she did not remove the wet floor sign.
Approximately an hour and a half later, another employee
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20-14549 Opinion of the Court 3
proceeded to mop the main dining area, and placed two new wet
floor signs on the opposite side of the dining room from where
Helton was seated.
Prior to Helton’s fall, multiple customers and employees
traversed the area between the signs without issue. Helton
followed in their footsteps less than a minute after the last of these
patrons crossed. In the process, she walked past the bright yellow
wet floor sign next to the drink machine, and, a few seconds later,
tumbled to the ground.
After she fell, Helton heard a person she believed to be an
employee shout “[g]et this water up” or “get a mop.” She also
claims that when she stood up, her clothes were soaked. However,
the manager recalls her clothes being bone dry.
B. Procedural History
On May 14, 2019, Helton filed a negligence claim against
Steak N’ Shake in Georgia state court, contending that Steak N’
Shake’s employees negligently mopped the floor—or,
alternatively, that the restaurant negligently failed to maintain a
leaky soda machine—which, in turn, led to her fall. Steak N’ Shake
subsequently removed the case to the United States District Court
for the Northern District of Georgia, where the case proceeded to
discovery. After discovery closed, Steak N’ Shake moved for
summary judgment. In addition to contesting both the existence
and its knowledge of the hazard, Steak N’ Shake contended that
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4 Opinion of the Court 20-14549
Helton failed to exercise reasonable caution despite being put on
notice of the hazard by the wet floor sign.
Recognizing disputes of material fact regarding the existence
of a hazard, and whether Steak N’ Shake had constructive or actual
knowledge of the hazard, the district court turned to Helton’s
knowledge of the hazard and the degree of care she exercised.
The district court found that “it is reasonable to expect water
to be on the floor of a restaurant and to take caution, especially
when a wet floor sign is placed nearby.” It continued, explaining
that the video evidence shows Helton walk right by the sign before
her fall, and establishes that it was well within her line of sight.
Consequently, the district court also dismissed her argument that
an angled booth, not captured in the video’s frame, obstructed her
view. Accordingly, the district court held that Helton had actual
knowledge and nevertheless failed to exercise reasonable care for
her safety. Helton timely appealed.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of summary
judgment, taking as true the non-moving party’s factual pleadings
and drawing all reasonable inferences in its favor. Burton v. Tampa
Housing Auth., 271 F.3d 1274, 1276–77 (11th Cir. 2001). However,
where video evidence plainly contradicts some or all of those facts,
we need not credit them. See Scott v. Harris, 550 U.S. 372, 380
(2007).
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B. Equal Knowledge of the Hazard
Helton argues that the district court erred by determining
that she had “equal or superior knowledge of the hazard,” and that
the evidence instead established that she had constructive
knowledge, at most. She therefore claims that, because Steak N’
Shake had actual knowledge of the hazard, the district court erred
by granting summary judgment.
Georgia’s test for premises liability distills “down to two
specific elements. The plaintiff must plead and prove that: (1) the
defendant had actual or constructive knowledge of the hazard; and
(2) the plaintiff, despite exercising ordinary care for his or her own
personal safety, lacked knowledge of the hazard due to the
defendant’s actions or to conditions under the defendant’s
control.” Am. Multi-Cinema, Inc. v. Brown, 679 S.E.2d 25, 27–28
(Ga. 2009).
But “[t]he mere occurrence of an unfortunate event” on an
owner’s premises, such as Helton’s fall, does not necessarily permit
an invitee to recover against him. Shortnacy v. N. Atlanta Internal
Med., P.C., 556 S.E.2d 209, 213 (Ga. Ct. App. 2001). Because,
relative to his customers, the owner is better positioned to
discover, remediate, or warn invitees about potential hazards, “the
fundamental basis for an owner or occupier’s liability [is] that
party’s superior knowledge of the hazard encountered by the
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6 Opinion of the Court 20-14549
plaintiff.” Cherokee Main St., LLC v. Ragan, 813 S.E.2d 397, 399
(Ga. Ct. App. 2018) (quotation omitted). 1 Accordingly:
to survive a motion for summary judgment, a plaintiff
must come forward with evidence that, viewed in the
most favorable light, would enable a rational trier of
fact to find that the defendant had actual or
constructive knowledge of the hazard. At that point,
the burden of production shifts to the defendant to
produce evidence that the plaintiff’s injury was
caused by [her] own voluntary negligence
(intentional disregard of a known risk) or causal
negligence (failure to exercise ordinary care for one’s
personal safety). If the defendant succeeds in doing
so, the burden of production shifts back to the
plaintiff to come forward with evidence that creates a
genuine dispute of fact on the question of voluntary
or causal negligence by the plaintiff or tends to show
that any such negligence resulted from the
defendant’s own actions or conditions under the
defendant’s control.
Brown, 679 S.E.2d at 28.
Of course, “[a]s a general proposition, issues of negligence,
contributory negligence and lack of ordinary care for one’s own
1
We note that in Dickerson v. Guest Services of Virginia, the Georgia
Supreme Court indicated that, for the purpose of summary judgment in a slip-
and-fall case, actual knowledge is superior to constructive knowledge. 653
S.E.2d 699, 701 (Ga. 2007).
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safety are not susceptible of summary adjudication . . . .” Robinson
v. Kroger, 493 S.E.2d 403, 408 (Ga. 1997) (quotation omitted). But
“where the evidence is plain, palpable and undisputable,” a “court
can conclude as a matter of law that the facts do or do not show
negligence on the part of the defendant or the plaintiff.” Id.
(internal citations and alterations omitted).
To that end, as a matter of law, “the fact that the plaintiff
merely failed to look will not relieve her from the responsibility for
her misadventure.” D’Elia v. Phillips Edison & Co., Ltd., 839
S.E.2d 721, 724 (Ga. Ct. App. 2020) (citation omitted). Though
Georgia does not require an invitee to fix her gaze on the floor in
front of her, see Robinson, 493 S.E.2d at 409, it does not permit that
invitee to blind herself to the premises owner’s efforts to warn her
of avoidable hazards either.
Rather, an invitee must “exercise ordinary care for her own
safety . . . and must make use of all her senses in a reasonable
measure amounting to ordinary care in discovering and avoiding
those things that might cause hurt to her.” Crebs v. Bass Pro
Outdoor World, 860 S.E.2d 802, 805 (Ga. Ct. App. 2021) (quotation
omitted). “Cases in which it is plain and palpable that knowledge
was or should have been possessed by a person of ordinary
intelligence and powers of observation will not be changed to a
case involving disputed issues of material fact simply because the
party claims he did not use his intelligence or powers of
observation.” See Scott v. Forest Acres Full Gospel Church, 834
S.E.2d 286, 290 (Ga. Ct. App. 2019) (quotation omitted).
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Applying Georgia’s law to the case at bar, we find no dispute
of material fact precluding a grant of summary judgment in favor
of Steak N’ Shake. Rather, the only real question in this case is
whether Helton can create a material dispute of fact as to her equal
knowledge of the hazard when the video evidence clearly
contradicts her position. According to the Supreme Court, she
cannot. See Scott, 550 U.S. at 380 (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”).
First, we agree with the district court that Helton carried her
burden to show that Steak N’ Shake had actual knowledge of the
water hazard. After all, the restaurant’s employees twice mopped
the floor and placed the caution signs at issue in this dispute.
Thus, the burden shifted to Steak N’ Shake “to produce
evidence that the plaintiff’s injury was caused by [her] own
voluntary negligence (intentional disregard of a known risk) or
causal negligence (failure to exercise ordinary care for one’s
personal safety).” Brown, 679 S.E.2d at 28. And, of course, Helton
“is not entitled to recovery if the undisputed evidence
demonstrates that [her] knowledge of the hazard was equal to or
greater than [Steak N’ Shake’s].” Cherokee Main St., 813 S.E.2d at
399 (quotation omitted).
And yet, the plain, palpable video evidence produced by
Steak N’ Shake establishes that Helton had equal—and, in this case,
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actual—knowledge of the hazard. See Drew v. Istar Financial, Inc.,
291 Ga. App. 323, 324-25 (2008); Dickerson, 653 S.E.2d at 701.
Specifically, the recording reveals that Helton walked in front of,
and then right past, a bright yellow caution sign before falling to
the ground.
Helton’s claim that the water came from a leaky soda
fountain rather than negligent mopping adds little to the
discussion. Regardless of the water’s source, the warning sign was
located close enough to the site of Helton’s fall as to put a
reasonable person on notice that she should tread carefully in that
vicinity. We agree with the district court that, when the restaurant
has placed a wet floor sign in a particular area, it is reasonable to
expect that the floor may have wet patches. And, as the video
evidence reveals, Helton, with her view unobstructed, walked
right past one of the caution signs.
Consequently, there is clear, palpable, and—contrary to her
position—undisputed evidence of Helton’s knowledge of the risk
and her alleged failure to see the large yellow wet floor
unobstructed sign that she walked right past was a lack of ordinary
care on her part. As a result, we find that Helton had equal
knowledge of the water hazard in which she slipped. And,
therefore, Helton cannot show a dispute of material fact as to her
equal knowledge of the hazard.
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C. Exercise of Ordinary Care by Plaintiff
Because Steak N’ Shake demonstrated that Helton had
actual knowledge of the water hazard, the burden shifted back to
her to produce evidence creating a genuine dispute of fact
regarding her exercise of ordinary care or whether her negligence
resulted from something exclusively within Steak N’ Shake’s
control.
Again, we agree with the district court’s conclusion that
Helton failed to carry her burden. Helton claims that the video
does not show the angled booth that obstructed her view as she
rounded the corner immediately before she came into the
recording’s frame. But Helton has provided no evidence that her
view was obstructed, and, even if it was temporarily limited, we
nevertheless see no reason why Helton would not have seen the
sign after exiting the booth.2
2Helton answers that, though she stared straight ahead, she did not look low
enough for the sign to enter her field of vision. Indeed, she posits that because
the video does not clearly show the direction in which her eyes pointed, there
is still a material dispute of fact as to whether she saw the sign warning of a
water hazard. Taking her claim to its logical end, summary judgment would
therefore be inappropriate for a person who walked through the same
restaurant while walking backwards.
When asked whether she agrees with that inference at oral argument,
Helton simply clarified that she believes questions of ordinary care are best
reserved for a jury, rather than summary judgment.
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Accordingly, we turn to and reject Helton’s claim that the
district court failed to credit her proffered evidence rebutting Steak
N’ Shake’s showing of her own contributory negligence. Citing
Grovner v. Winn Dixie Stores, Inc., 462 S.E.2d 427 (Ga. Ct. App.
1995), Helton proposes that, because she did not have specific
knowledge of the risk posed by the portion of the floor upon which
she slipped, Georgia law does not allow a court to find that she
failed to exercise ordinary care for her own safety.
Additionally, she contends that a jury could find that Steak
N’ Shake concealed the hazard because it did not provide a warning
about the soda fountain, one potential source of the spill, or,
alternatively, that Steak N’ Shake failed to follow its own safety
policies requiring employees to encircle a mopped area with
caution signs.3
But neither of these claims creates a material dispute of fact
when we have plain, palpable, and undisputed video evidence
establishing Helton’s actual knowledge of the water hazard. It does
not matter whether the caution sign which Helton ignored referred
to the mopping that took place approximately seven minutes
before her fall, or if it referred to water left over from mopping that
occurred seventy minutes prior. Nor would it matter if Helton
3
In support of her position, Helton directs us to a half-dozen Georgia cases
involving plaintiffs who allegedly received notice of a potential slipping hazard
in one location, and then fell in another. But because Helton slipped in water
located only a few feet away from the caution sign, those cases are inapposite.
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12 Opinion of the Court 20-14549
slipped in water that originated from a leaky drink machine as she
now argues on appeal. The source of the water is irrelevant in this
case. Once a defendant establishes that a plaintiff had equal or
greater knowledge of a specific hazard—water in the vicinity of the
caution sign—the burden shifts to her to rebut the presumption of
contributory negligence. Helton failed, and, accordingly, a grant
of summary judgment in favor of Steak N’ Shake is appropriate.
Finally, Steak N’ Shake’s purported failure to direct its
employees to encircle the wet portion of the floor does not bear on
the reasonableness of Helton’s actions. Because she had actual, and
therefore at least equal, knowledge of the hazard, Steak N’ Shake’s
purportedly negligent warning is not the source of her harm.
Accordingly, we hold that the district court did not err in finding
that Helton failed to rebut Steak N’ Shake’s evidence establishing
her equal knowledge of the hazard and failure to act with ordinary
care.
III. CONCLUSION
Because we conclude that Steak N’ Shake successfully
demonstrated that Helton had equal knowledge of the hazard, and
she failed to rebut the consequent presumption of contributory
negligence, we affirm the district court.
AFFIRMED.