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Facts
On July 19, 2017, Stephen Goodstein went to North Fulton Community Charities (NFCC) to pick up some food from their food pantry. He had made this trip many times before but did not always enter the property the same way or park in the same area. He tripped over an unmarked raised bump. Unbeknownst to Goodstein at the time, the fall caused a large hemispheric acute subdural hematoma. After collapsing at home later that day, Goodstein underwent a craniotomy, spent time in the ICU, and then lived the remainder of his life (approximately two years) in a nursing home.
Stephen’s wife, Angela Goodstein, filed suit against NFCC, alleging claims of negligence, premises liability, and wrongful death. NFCC raised the defense of failure to mitigate damages because Stephen had not sought treatment immediately following his fall. Angela filed a Motion for Summary Judgment regarding the failure to mitigate defense, which was granted by the trial court. The trial court primarily relied on Goodstein’s expert for their ruling, as he testified that he could not be certain that Stephen seeking treatment sooner would have changed his outcome.
NFCC also filed a Motion for Summary Judgment, arguing that Stephen had as much knowledge of the ridge as NFCC because he had visited the food bank on prior occasions. The trial court denied NFCC’s Motion, reasoning that the record did not establish that he had traversed the precise hazard before and that the bump was not readily discernable to a person who was exercising reasonable due care because there was no signage, the bump blended in with the rest of the pavement, and the shade of nearby trees often obscured the bump.
NFCC appealed the trial court’s denial of summary judgment, claiming that the prior traversal rule barred the claims. It also appealed the trial court’s grant of summary judgment to the Plaintiff on the mitigation of damages defense.
Issues & Holdings
The issues in this case were:
- Did the trial court error in denying summary judgment on the prior traversal defense?
- Did the trial court error in granting summary judgment on the mitigation defense?
The Court of Appeals affirmed the trial court on both grounds and held that the prior traversal defense did not preclude Plaintiff’s claims and that Defendant could not pursue a defense for the decedent’s alleged failure to mitigate damages.
Reasoning
Prior Traversal Rule
The Court of Appeals first considered NFCC’s claim that the trial court erred in denying summary judgment based on the prior traversal rule. The basis for liability on a premises liability claim is that the landowner or occupier had superior knowledge of the hazard that caused the injury. This requires establishing both that the defendant had actual or constructive knowledge of the hazard, and that the plaintiff lacked knowledge of it despite the exercise of ordinary care. A plaintiff who has equal knowledge of a hazard cannot recover.
The prior traversal rule is a defense that has developed as an application of the superior knowledge requirement. The prior traversal rule provides: “When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom.” Gervin v. Retail Property Trust, 354 Ga. App. 11, 13-14 (2020). This rule only applies where the static condition is “readily discernible” to a person who is exercising reasonable care for their own safety. See Perkins v. Val D’Aosta Co., 305 Ga. App. 126, 128-29 (2010).
The Court of Appeals rejected the prior traversal rule defense for two reasons.
First, there was no testimony or evidence that Goodstein had traversed the bump previously. It was not enough that he had simply walked in the area before. The Defendant was required to show that he had walked over this specific bump before and had successfully negotiated it. Furthermore, the Court of Appeals concluded that Goodstein’s prior acts of driving over the bump were not equivalent to walking over the hazard for purposes of establishing that he had successfully negotiated the dangerous condition before.
Second, the bump was not readily discernible as a matter of law. There was evidence the bump was difficult to see because it was the same color as the adjacent pavement.
The Court of Appeals concluded by noting that routine issues of premises liability “are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” American Multi-Cinema v. Brown, 285 Ga. 442, 445 (2009).
Duty to Mitigate Damages
The Court of Appeals next considered NFCC’s argument that summary judgment was not appropriate for the mitigation defense. Looking first to the statute itself, the Court of Appeals reiterated that a person who is injured by the negligence of another is responsible for mitigating their damages through the use of ordinary care. O.C.G.A § 51-12-11.
The Court of Appeals stated: “What our cases have clearly held is that a jury charge on the duty to mitigate damages is authorized where a plaintiff fails to follow his or her doctor’s instructions, stops treatment contrary to medical advice, or fails to obtain available treatments recommended by a treating physician.” The Court also noted that a mitigation charge would be appropriate when evidence was presented that proved that a plaintiff’s failure to follow a doctor’s advice may have aggravated their condition.
After evaluating the case law on mitigation of damages, the Court of Appeals declined to find that the decedent had a duty to mitigate damages. As the Court stated, it would not find an affirmative duty to mitigate damages where the injured plaintiff “fails to recognize the enormity and severity” of the injury.
Conclusion
Goodstein gives some clarification on both the prior traversal rule and the duty to mitigate damages. This case makes it clear that just because a plaintiff may have been to a location before does not mean they automatically have equal knowledge of the dangerous condition. The defendant must show both that the plaintiff successfully negotiated the condition before, and that it was readily discernible.
As for the duty to mitigate damages, this case makes it clear it is not a defense that is always going to apply simply because a defendant argues that an injured plaintiff should have done something different. The defendant must show that the plaintiff filed to use ordinary care to mitigate their damages. If a plaintiff lacks knowledge of the severity of their injury, the defense will not apply.
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Citation: North Fulton Community Charities, Inc. v. Goodstein et al.,
367 Ga.App. 576 (2023)
