Shubert v. Marriott Corp.

Johnson, Judge. Margaret Shubert brought this action for negligence against Marriott Corporation for injuries suffered in a cafeteria operated by Marriott. The trial court granted Marriott’s motion for summary judgment and this appeal followed. Shubert tripped and fell while getting her lunch at a cafeteria operated by Marriott. Shubert picked up a tray from a raised counter and was carrying it in front of her. It is uncontroverted that the cafeteria was very crowded, with three lines of people waiting in food lines. The salad bar was located beyond the food lines, requiring those wanting salad to get their trays and utensils and then move through the crowd. A small recessed area in which a utility cart had been placed by a Marriott employee was located at the end of the serving counters. Although the alcove was deep enough to accommodate the cart, the cart had been placed in such a way that the bottom front edge protruded approximately six to eight inches beyond the front of the tray counter. As she worked her way through the crowd to the salad bar, Shubert was bumped from behind and turned to see the source. At that moment, Shubert’s foot caught on the protruding metal edge of the cart causing her to fall forward. Her elbow was fractured in the fall. Marriott’s motion for summary judgment asserted that Shubert failed to exercise due care for her own safety. The trial [185] court, in a single sentence order, granted the motion. Shubert testified that the tray she was carrying obscured her vision. Marriott relied on Minor v. Super Discount Markets, 211 Ga. App. 123 (438 SE2d 384) (1993) in its original motion for summary judgment and again on appeal for the proposition that carrying a tray would not excuse Shubert from exercising due care for her own safety. In Minor, the court noted that the plaintiff was familiar with shopping carts in general and knew that a shopping cart would obscure her view to a certain extent, which may have been a contributing factor to the plaintiff’s fall. However, this was not the basis of the court’s affirmance of the trial court’s grant of summary judgment to the defendant. Rather, the court stressed that the plaintiff admitted that she was looking at the merchandise instead of where she was going, consequently failing to exercise ordinary care for her own safety. Here, whether Shubert exercised the requisite degree of care for her own safety while carrying a tray is a question for the jury to consider. Marriott also continues to rely on Froman v. George L. Smith, Ga. World Congress Auth., 197 Ga. App. 338 (398 SE2d 413) (1990) asserting that Froman stands for the proposition that a crowd will not excuse a plaintiff’s inability to see and avoid a defect. A careful reading of Froman, however, reveals that the court based its decision on the fact that the plaintiff had traversed the same path for several days prior to the fall, giving the plaintiff an opportunity to become aware of a clearly visible expansion joint in the sidewalk. This court held summary judgment was appropriate because the plaintiff had negotiated the allegedly dangerous condition on several previous occasions, the proprietor did not have superior knowledge of the existence of the condition. In reviewing the facts of the case, the court noted the plaintiff’s assertion that her view of the sidewalk was obscured by a crowd of people, but does not address that defense in the substantive portion of the opinion. Therefore Froman, supra, does not control. Although the record establishes that Shubert had eaten at the cafeteria on numerous occasions, the protrusion of the cart was not a static feature which she would have previously had the opportunity to observe. Finally, the fact that Shubert turned around momentarily after being jostled should not defeat her claim as a matter of law. “[A] plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril. . . . The doctrine is further broadened to cover situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” (Citation and punctuation omitted.) Kres v. Winn-Dixie Stores, 183 [186] Ga. App. 854, 855 (1) (360 SE2d 415) (1987). We recognize the long line of cases barring recovery when the distraction is self-imposed. See, e.g., Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 263 (427 SE2d 547) (1993). It is a natural reflex upon being bumped to turn to see the cause. This action does not constitute a self-imposed distraction. “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Emphasis in original.) (Citation omitted.) Sunamerica Financial v. 260 Peachtree Street, 202 Ga. App. 790, 793 (2) (a) (415 SE2d 677) (1992). Here, it can be inferred that a Marriott employee placed the cart in such a position so as to create a hazard. Under these circumstances we cannot say as a matter of law Shubert failed to exercise ordinary care for her own safety. Neither is this the proper forum to determine whether Marriott discharged its obligation to exercise reasonable care for the safety of an invitee with regard to the placement of the utility cart. Accordingly we reverse the trial court’s grant of summary judgment to Marriott. Judgment reversed. Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Blackburn, Smith and Ruffin, JJ., concur. Andrews, J., dissents.