Facts
In Gutierrez v. Six Flags Over Georgia II, LLP, the trial court granted the Defendant’s motion for summary judgment because the Plaintiff tripped on a crack in the pavement that was a static condition and she was not obstructed from seeing it, so she was deemed to have at least equal knowledge of it. The Court of Appeals affirmed the grant of summary judgment and held that the hazard was open and obvious as a matter of law because it was out in the open, with nothing to obstruct the Plaintiff’s view of it, and it was in a walkway painted in yellow.
The Plaintiff Ms. Gutierrez visited Six Flags on July 22, 2018, accompanied by her two daughters and grandson. As she was walking toward the park's entrance, she “fell to the ground, striking her head and other body parts on the concrete.” As later documented in photographs, there was a crack in the pavement of the walkway Gutierrez was using to enter the park that created a lip on which she tripped. Because the area where the crack was located was at an elevation change/surface transition in the walkway, pre-existing yellow paint was present over the walkway where the crack had formed.
Ms. Gutierrez sued Six Flags for negligence, alleging that Six Flags' constructive and/or actual knowledge of the dangerous condition caused by the crack, along with its failure to remedy the allegedly dangerous condition, constituted a breach of the duty Six Flags owed to Gutierrez as its invitee.
In her deposition, Gutierrez testified that as she was walking into the park, her daughters and her grandson were walking in front of her. She stated that it was not overly crowded, and she was not distracted while walking; she was looking straight ahead and wearing appropriate footwear for the occasion. She could not recall seeing the crack before falling down. Her daughters helped her up after the fall, and she went to the park's medical station.
After a hearing on Six Flags' motion for summary judgment, the trial court granted summary judgment to Six Flags. First, the trial court determined that the dispositive issue was “whether the crack and condition of the pavement was ‘readily discernible’ to someone exercising reasonable care for her own safety.” Because the crack in the sidewalk was a static condition and Ms. Gutierrez was not obstructed from seeing it, the court deemed Ms. Gutierrez to have at least equal knowledge of the hazard as Six Flags, and she, therefore, was not entitled to recover damages for her injuries. Ms. Gutierrez appealed.
Issues and Holdings
The issues in this case were:
- Was the condition that caused Ms. Gutierrez’s fall open and obvious as a matter of law, thus imputing knowledge of the hazard onto her and implicitly finding that it could have been avoided with the exercise of ordinary care?
- Did the distraction doctrine apply based on (a) her family members walking in close proximity to her, (b) a roller coaster in view from the path on which she was walking, and (c) the other park patrons all distracted her from seeing the sidewalk's condition before she fell.
The court ruled:
- Yes
- No
Reasoning
Open and Obvious
The court explained that an “open and obvious” condition invokes the “plain view doctrine,” whereby constructive knowledge is imputed if an invitee confronts a hazard in plain view at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall. It stated further that a static condition may be deemed open and obvious “if nothing obstructs the invitee's ability to see the static condition, because the proprietor may safely assume that the invitee will see it and will realize any associated risks.”
The Court held that the condition was open and obvious because it was out in the open, with nothing to obstruct Gutierrez's view of it. Further, because it was located at the transition between surfaces, it was highlighted in yellow paint which could only increase its visibility. Thus, where the “static condition is apparent,” or open and obvious, “such that one looking ahead would necessarily see it, an invitee's failure to look will not relieve her from the responsibility for her misadventure.”
Distraction Doctrine
The court also rejected the application of the distraction doctrine. The distraction doctrine “holds that one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted.” This doctrine “is not an independent theory of recovery but may operate to excuse or negate a plaintiff's failure to discover the hazard when the source of the distraction is attributable to the Defendant.”
Here, whether Gutierrez was walking too close to her family or other patrons to observe a crack in the sidewalk would be at most a distraction of her own making, and thus not a basis for Six Flags' liability. And, although a business displaying attention-seeking merchandise or signage within view of patrons navigating walkways may be considered distractions attributable to the premises owner, this type of distraction raises a jury question only where the invitee testifies (or presents “some evidence”) that they did not see the hazard because of the distraction. Ms. Gutierrez, however, testified that she was looking ahead of her at the time of the fall, and made no mention of being distracted by the presence of a roller coaster. Indeed, she testified explicitly that she was not distracted at the time of the fall. Thus, any reference to such a distraction is mere speculation and would not form the basis to deny summary judgment.
Conclusion
Gutierrez is an especially stringent and harsh application of the “open and obvious” doctrine. Taken to its extreme, the case could support a premises defendant’s disregard for known hazards. The case, however, can be distinguished on its facts because the Court based its decision on the yellow paint highlighting the area of the hazard.
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Citation: Gutierrez v. Six Flags Over Georgia II, LLP No. A23A0607 (Ga. Ct. App. Apr. 28, 2023)
