Nosiri v. Helm

Barnes, Judge.

On November 12, 2003, Diana Helm was injured when she tripped over wires at Systems Alert Security, Inc., where she worked as a telemarketer. Helm sued Systems Alert and Benjamin Nosiri (hereinafter collectively “Nosiri”) alleging negligence in that the wires “were strung across the floor in such a manner as to make it hazardous to . . . traverse the floors of the business premises.” Nosiri filed a motion for summary judgment maintaining, among other things, that he was entitled to judgment as a matter of law based on undisputed facts showing that Helm had equal or superior knowledge of the alleged hazardous conditions, and that she had assumed the risk incident to the hazardous conditions. The trial court denied the motion without explanation, and subsequently granted a certificate of immediate review. We granted Nosiri’s application for interlocutory appeal, and this appeal followed.

On appeal, Nosiri contends that the trial court erred in finding that he had superior knowledge of the hazard, and that Helm had not assumed the risk of the injury by repeatedly traversing the hazardous condition. He also maintains that the trial court erred in concluding that alleged violations of federal and state safety regulations were relevant to the claim, and in concluding that Nosiri admitted negligence by saying that he felt responsible for the incident and would pay Helm’s medical bills. Upon our review, we hold that the court properly denied summary judgment to Nosiri in view of disputed issues of material fact.

We review the grant or denial of a motion for summary judgment de novo, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant. Norton v. Cobb, 284 Ga. App. 303-304 (643 SE2d 803) (2007).

So viewed, the evidence shows that Helm was an independent contractor at Systems Alert working as a telemarketer. Her left leg was amputated below the knee at a young age, so she wore a prosthesis. Before the incident at issue, Helm expressed her concern to Nosiri about the various wires that lay across the floor in her work area, including one from Nosiri’s radio, which was sitting on the floor, and one from Nosiri’s cell phone charger, both of which lay across Helm’s path when they were plugged into the wall socket.

Helm told Nosiri she was concerned about the cords being in her *381way because of her prosthetic limb, and he told her she “had to deal with it if [she] wanted to work there.” Helm testified, “It was the little, bitty wires I was afraid of.” When asked during her deposition if there were times when her balance was “a little out of whack” because of her prosthetic limb, she explained, “When you wear an artificial limb where you’ve got to walk, you’re always in visual of the terrain, [sic] You’re always, because the terrain can trip you up, whether you’re walking on rocks or hills or if there’s a little, bitty step like that. I mean, it can trip an amputee up.”

Helm last moved the cell phone cord from her path the day before she fell. She could not say the cord was in her way every single day, but when it was, she would move it. The morning she fell, Nosiri and his partner were standing in the narrow pathway of the office, possibly standing on the cell phone cord, when she passed them with paperwork in her hand, through what she characterized as “a very tight squeeze.” The office was narrow with a wooden partition down the middle, and with the men standing there, “it was hard to get through.” After squeezing by the men twice, she turned to pass them again and her prosthetic leg, which was held to her stump by suction, came out of its socket. Helm fell, hitting first on the end of her stump and then on her shoulder. After asking the men to leave so she could remove her pants to determine if she was bleeding, Helm discovered that the cell phone cord was wrapped around her prosthetic foot. She probably did not notice the cord before she fell because Nosiri and his partner were standing there.

1. “The trial 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 only where the evidence is plain, palpable and undisputable. [Cit.]” Robinson v. Kroger Co., 268 Ga. 735, 739 (493 SE2d 403) (1997). “[I]t is the plaintiffs knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely [her] knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids.” (Punctuation and footnote omitted.) Barton v. City of Rome, 271 Ga. App. 858, 861 (610 SE2d 566) (2005).

Here, while there is no question that Helm was aware of the existence of the cell phone cord the day before her fall and the other days that she moved it, there is no evidence that she was aware of its exact position at the time it tripped her. Therefore, “there exists a question of fact whether [Helm] was aware or should have been aware of the continuing nature of the hazard.” Reid v. Southern Bell Tel. &c. Co., 182 Ga. App. 524, 525 (356 SE2d 77) (1987). “Whether [Helm] exercised that duty of care commensurate with her knowledge ... is a circumstance to be considered by the jury in determining if appellant exercised due care for her personal safety.” Id.

*382As noted in Robinson v. Kroger Co., “[w]hat constitutes a reasonable lookout depends on all the circumstances at the time and place.” 268 Ga. at 742. It is for the jury to determine whether, after moving the cell phone cord the day before she fell, and not seeing it the day she fell, possibly because Nosiri and his partner were standing on it, blocking her path and her view of the floor, Helm should, nevertheless, have been more vigilant for her own safety. “The decision whether to recognize [Helm’s] theory of recovery as valid under Georgia premises liability law is precisely the type of legal policy judgment we instructed in Robinson must be left to a jury to decide in light of all the attendant circumstances.” American Multi-Cinema v. Brown, 285 Ga. 442, 446 (679 SE2d 25) (2009).

2. Regarding Nosiri’s argument that Helm assumed the risk of injury by walking across the allegedly hazardous condition despite knowledge of it, “[e]xcept in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached,” questions of contributory negligence and assumption of risk are for the jury. (Citation and punctuation omitted.) Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996).

Here, issues of material fact exist as to whether Helm assumed the risk of her injuries in that despite actual knowledge of the danger presented by the wires, and understanding and appreciating the risks associated with the wires, she, nonetheless, voluntarily exposed herself to the risk of walking over the wires. See Gaines v. Ingles Markets, 241 Ga. App. 302, 303 (1) (524 SE2d 766) (1999).

3. Because of our decision in Divisions 1 and 2, and because the trial court did not specifically address Nosiri’s contentions regarding federal and state workplace safety regulations, or conclude that Nosiri admitted negligence by offering to pay medical bills, the remaining enumerations are moot.

Judgment affirmed.

Miller, C. J., Blackburn, E J., Ellington and Mikell, JJ., concur. Andrews, P. J., and Johnson, P. J., dissent.