Lowery's Tavern, Inc. v. Dudukovich

Citations: 507 S.E.2d 851; 234 Ga. App. 687; 98 Fulton County D. Rep. 3705; 1998 Ga. App. LEXIS 1339Docket: A98A1088; A98A1089; A98A1090

Court: Court of Appeals of Georgia; October 13, 1998; Georgia; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Lowery's Tavern, Inc., Northeast Sales Distributing, Inc., and Howard Scott sought interlocutory review of a trial court's denial of their motions for summary judgment in a premises liability case stemming from an accident involving James Dudukovich, who fell into an elevator shaft after consuming a significant amount of alcohol. The incident occurred on October 8, 1994, when Dudukovich and Jane Larimer, both intoxicated (Dudukovich had a blood alcohol level of .188), chose an unlit alley as a shortcut rather than a well-lit public sidewalk. Despite Larimer's concerns about the route, Dudukovich insisted they continue through the alley, which was described as dark, muddy, and cluttered with debris and trash. After walking single file, Larimer lost sight of Dudukovich, who had directed her to turn left at the top of the alley. When she retraced her steps, she stumbled into the elevator shaft, mistaking it for an entrance to a building. Larimer acknowledged that she did not check the safety of the opening and that the shaft was located on property leased by Lowery's Tavern from Scott. The court ultimately reversed the trial court's decision, implying that the plaintiffs' actions contributed to the accident.

Dudukovich and Larimer had no intention of visiting Lowery's Tavern, and the elevator in question opens into Chad Lowery's office, with no public access from the alley, which is primarily used for garbage storage, vendor deliveries, and fire escape. The elevator has been exclusively used by delivery personnel trained to lock the doors post-use; however, there were instances where they left the doors unlocked. At the time of the incident, the elevator was inoperative at the top of the shaft, leading into Lowery's office. Employees of Northeast Sales, who had just made a delivery, testified they closed the elevator doors but could not confirm whether they locked them. At approximately 2:00 a.m. during the tavern's closing, Lowery was informed of a fall into the elevator shaft.

Dudukovich acknowledges he was not an invitee on the premises, thus the defendants only owed him a duty not to willfully or wantonly cause injury. Whether he was a licensee or a trespasser is inconsequential, as the duty owed is similar in both scenarios. A land possessor is liable for harm from unsafe conditions only if they know the condition poses an unreasonable risk and fail to ensure safety or provide warning to expected licensees.

Dudukovich claims the elevator shaft doors constituted a mantrap due to being left open; however, evidence indicates the doors were closed when he approached. Although Northeast Sales employees may have left the doors unlocked, their testimony confirms the doors were closed. Dudukovich’s inference that he could not have opened the doors due to the lack of external handles does not contradict the employees' statements. Additionally, Dudukovich cannot remember his actions leading to the incident or how he accessed the elevator shaft, and there is no direct evidence supporting that the doors were open.

No evidence supports Dudukovich’s claim that anyone, including employees of Lowery's Tavern or other delivery personnel, opened the elevator shaft doors after they were closed by Northeast Sales employees. The trial court correctly determined that the assumption of risk doctrine does not preclude Dudukovich's claim, as he lacked the subjective knowledge of the danger posed by the elevator shaft necessary to argue he assumed that risk. However, the risks of taking an unsafe route through a dark, debris-strewn alley, accessing the elevator shaft, and stepping into a dark hole were evident, and Dudukovich's actions were deemed unreasonable. As a result, he should bear the consequences of his failure to exercise ordinary care, warranting summary judgment for Lowery's Tavern, Northeast Sales, and Scott.

It is established that a plaintiff cannot recover if they could have avoided harm by exercising ordinary care, and must use reasonable measures to ensure their safety. Although typically, the exercise of due diligence is a jury issue, it can be adjudicated summarily when the risk is clear. This case differs from prior cases where alternative safe routes were disputed; Dudukovich acknowledged he had not previously been in the alley and the direct route was an illuminated sidewalk he chose to abandon. Additionally, precedent indicates that plaintiffs who deviate from safe paths must exercise increased caution proportional to the heightened risk, as affirmed in related case law.

In Farmer v. Wheeler/Kolb Mgmt. Co., the court affirmed summary judgment when a pedestrian tripped over concrete while crossing a parking lot outside designated walkways, indicating the plaintiff's negligence. In MARTA v. Fife, summary judgment was reversed because the plaintiff stepped into a drainage culvert after opting to use the street instead of a provided pickup area. Dudukovich attempted to argue that risks in an alley should be evaluated as anticipated hazards; however, the court noted that unfamiliarity with an alley could present numerous dangers. The case of Pries v. Atlanta Enterprises illustrated that unexpected risks, like a missing floor in a dark room, do not preclude a finding of negligence if the danger is obvious. Dudukovich was deemed to have assumed heightened risks by leaving a well-lit sidewalk for a dark alley, where he acknowledged the alley's condition and continued into a dark building. His failure to exercise ordinary care for his safety barred recovery. Under the standard from Lau's Corp. v. Haskins, the defendants demonstrated that there were no genuine issues of material fact regarding Dudukovich's lack of care, justifying the granting of summary judgment. The trial court's denial of summary judgment to Lowery's Tavern, Northeast Sales, and Scott was reversed, rendering remaining errors moot. Both Lowery's Tavern and Scott faced premises liability under OCGA § 51-3-1, while Northeast Sales was liable due to its control over conditions on the premises.