Recently, a Georgia appellate court issued an opinion in an appeal of a trial court’s summary judgment ruling in favor of a defendant in a premises liability lawsuit. According to the facts as laid out by the court, a grocery store employee drove and parked his work truck in the store’s parking lot. During his daytime shift, he and another co-worker were clearing debris from a bridge on the store’s property. While they were working, the employee noticed a car approach his work truck, and he witnessed the driver get out of his vehicle and into his work truck. The employee approached his truck, and the man in the driver’s seat shot him.
The man’s wife filed a premises liability lawsuit against the store, claiming that they were negligent in failing to maintain, inspect, secure, and manage the parking lot. Further, she claimed that they were negligent in failing to remediate a history of crime in the vicinity. The defendants filed a motion contending that the victim voluntarily chose to join an affray and failed to exercise due care by approaching the man who shot him. The trial court found in the defendant’s favor, noting that the employee put himself in the situation where he was shot. The plaintiff appealed.
In front of the appellate court, the plaintiff claimed the lower court improperly granted summary judgment to the defendant because the employee did not willingly join in a fight and that there was at least a jury question regarding whether his behavior was reasonable. Under Georgia law, after a plaintiff meets the elements of a tort action, they must also overcome any contributory negligence claims. To overcome a defendant’s affirmative contributory negligence defense, the plaintiff must prove that they used ordinary care for their safety and to avoid consequences of a defendant’s apparent negligence. Defendants must present “plain, palpable, and undisputable” proof that a plaintiff failed to exercise ordinary care.