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Store Not Liable for Women Who Tripped Over Child Sitting Behind Her

Premises liability is often associated with “slip and fall” cases. For example, if a person slips in a puddle in the middle of supermarket and injures himself, the store can be held liable if it knew about the water and failed to mop it up in a timely fashion. But premises liability may arise from many types of hazards. Indeed, the Georgia Court of Appeals recently addressed a case where the alleged hazard was an unattended child sitting on the floor.

Barbour-Amir v. Comcast of Georgia/Virginia, Inc.

This case began when a woman went to a store in July 2010 to pay her cell phone bill. According to court records, “The store was narrow and crowded,” with several customers waiting in line. The woman waited her turn, proceeded to pay her bill, and as she turned to leave, she “tripped over a young child who was sitting on the floor behind her.” The woman fell to the ground and suffered injuries to her back, knees and ankle.

The woman sued the store, alleging it was liable for the hazard created by the child sitting on the floor. Both the trial court and the Court of Appeals disagreed and awarded summary judgment to the store. Under Georgia law, the appeals court explained, a premises owner is only liable for injury when it has “superior knowledge of a condition” that might expose a person “to unreasonable risk of harm.” And when that potential hazard is created by the “sudden, intervening act of a third party”—such as a child sitting on the floor, then the proprietor is not liable when that third party’s conduct “occurred without warning and was unforeseeable.”

The Court of Appeals said there was no evidence the store in this case had “actual knowledge” about the child sitting on the floor. A customer service representative working in the store on the day in question testified she did not see the child. A security guard also said he could not recall seeing a child. These were the only eyewitnesses who testified in addition to the plaintiff. (Neither the child nor her parent were apparently identified.) The plaintiff argued both the security guard and the customer service representative “should” have seen the child, but the Court of Appeals said that was mere speculation.

In addition to a lack of actual knowledge, the appeals court said there was no evidence the store had “constructive knowledge” of the hazard posed by the child. In this context, constructive knowledge means the hazard posed by the child lasted long enough it would have been discovered by the store had it “exercised reasonable care in inspecting the premises.” Alternatively, the store would have constructive knowledge if there was evidence an employee “was in the immediate vicinity of the hazardous condition” and could have promptly identified and corrected the problem. Neither applied to the facts presented here, the appeals court held, as all evidence suggested the child’s presence was in fact a “sudden and unexpected occurrence,” which the store could not be held liable for.