FAILURE TO COMPLY WITH INTERNAL INSPECTION PROCEDURES MAY PRECLUDE SUMMARY JUDGMENT
Posted by Christina Cribbs
In the world of retail and hospitality, most responsible property owners and operators have established inspection, maintenance and repair procedures designed to prevent injuries to patrons on the premises. These policies are intended to protect customers. However, if not followed, the policies may actually be used against the owner-operator in the event of an accident and subsequent claim.
The plaintiff in a typical slip or trip-and-fall premises liability case must show that defendant had actual or constructive knowledge of some hazard on the premises that caused injury to plaintiff. When defendant has no reasonable inspection procedure, constructive knowledge of the hazard can be inferred. Even if defendant has a reasonable inspection procedure, defendant must show that it actually followed the inspection procedure at the time of the accident. If plaintiff presents evidence that defendant failed to comply with its own inspection procedure, an inference arises that defendant had constructive knowledge of the hazard. As a result, defendant cannot get out of the case on a motion for summary judgment.
The Samuels case is a prime illustration of this concept. In Samuels, plaintiff was leaving a restaurant after dark when she stepped on an object in the parking lot and fell. Samuels v. CBOCS, Inc., 319 Ga. App. 421 (2012). Plaintiff described the object as a piece of wood about 4” by 1/2”. The restaurant had inspection procedures that required the manager to do an inspection of the grounds every 30 to 60 minutes throughout his shift. On the date of plaintiff’s fall, the manager performed an initial inspection when he began his shift at 2:00pm but failed to do any other inspections before the accident occurred around 9:00pm. The trial court granted defendant’s motion for summary judgment, finding that no reasonable inspection would have led to the discovery of the piece of wood, and even if the manager had seen the wood in the parking lot, it is unlikely that he would have thought it necessary to remove the wood. Id. at 422.
On appeal, defendant cited a line of cases allowing the court to grant summary judgment to a defendant that failed to follow its own inspection procedure if there is no evidence that the hazard would be discovered during a reasonable inspection. Interestingly, in opposition to this argument, the Court of Appeals opined “there is no other evidence that the stick would have been difficult to see as it lay in the lighted parking lot.” Id. at 424. This statement begs the question: why did plaintiff fail to see the stick before she fell? Nonetheless, the Court of Appeals held that because there was evidence that defendant did not follow its inspection procedure, an inference that defendant had constructive knowledge of the object was raised. Id. Accordingly, the Court reversed the grant of summary judgment.
Samuels teaches a valuable lesson to property owners and operators. If you have inspection procedures in place, make sure you follow them. If the defendant in Samuels had inspected the area as required by its own policies, it is likely that its motion for summary judgment would have been successful.