• Warning: Beware of the Warning Sign and AMC v. Brown
  • August 10, 2009 | Author: Ariel Denbo Zion
  • Law Firm: Swift, Currie, McGhee & Hiers, LLP - Atlanta Office
  • When a spill occurs, premises owners typically put up a “Wet Floor” sign. But what happens when a patron trips over the warning sign? A recent Georgia Supreme Court case imposes potential liability based on the type of warning sign used.

    On Christmas Day 2003, a movie theater in metro-Atlanta was enjoying a brisk business. Plaintiff had taken her daughter and grandchildren to see a movie. As the movie ended, the crowd from the packed theater moved “en masse” toward the doors.

    Minutes before the movie ended, a theater employee set up a commonplace,A-frame “Wet Floor” sign over a spill approximately ten to 20 paces outside the auditorium door. When Plaintiff reached the sign and spill, the sign had fallen over and was lying flat on the floor. Because Plaintiff’s ability to see the floor was obscured by the large crowd of people, she did not see the sign until she tripped over it and fell to the floor. Plaintiff had recently undergone back surgery, compounding the severity of her injuries sustained from the fall.

    Plaintiff and her husband filed a lawsuit against the movie theater on a premises liability theory. The movie theater moved for summary judgment, claiming it was undisputed the sign was properly set up and Plaintiffs produced no evidence the theater knew the sign had fallen down. The extensive employee training program adopted by the theater was noted for its focus on customer safety and the proper procedure for handling spills.

    The theater cited two Georgia cases in which the Court of Appeals held a “Wet Floor” sign is not a tripping hazard as long as it is set up properly, even if it is lying flat on the floor by the time the plaintiff reaches it, even if it is placed in a highly trafficked area, and even if the defendant knew signs of that type frequently ended up falling over when they come in contact with moving crowds.

    The movie theater argued Plaintiffs’ suit would put retailers in an “untenable position” in light of Georgia case law, which encourages the use of “Wet Floor” signs to mark spills.

    Plaintiffs argued there were safer, readily available alternatives for the theater’s employees to address the spill: using a sturdier type of “Wet Floor” sign designed to be less prone to collapsing, or requiring employees to dry spills in heavily trafficked areas immediately and completely. Plaintiffs presented expert testimony that the type of sign used by the theater collapses easily when contacted by pedestrian traffic. The expert testified to “standard knowledge” in the retail industry that this common, A-frame sign tends to collapse, creating a tripping hazard when it does, and should not be placed in the path of oncoming crowds.

    The trial court granted the theater’s motion, but the Court of Appeals reversed, explaining Georgia cases do not hold, as a matter of law, that “Wet Floor” signs set over spills can never be the basis of a premises liability claim. The Georgia Supreme Court examined the use of “Wet Floor” warning signs in a premises liability action.

    The Court iterated the test used in analyzing “trip and fall” and “slip and fall” cases in Georgia: “(1) the defendant had actual or constructive knowledge and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.” The Court affirmed the general rule that issues in premises liability cases should be answered by juries as a matter of fact, rather than by judges as a matter of law, and then set out to analyze the case under the two-part test.

    The Court concluded Plaintiffs presented sufficient evidence of the theater’s knowledge. While the theater claimed it did not have “actual knowledge,” deposition testimony from a theater employee revealed the employee personally saw the “Wet Floor” sign after it fell down but before Plaintiff tripped on it. The theater argued while it knew the sign was there, it did not know the sign was a hazard, and thus, it had no actual knowledge of the hazard that injured Plaintiff. The Court did not agree, concluding the Plaintiffs presented sufficient evidence to overcome summary judgment. Plaintiffs’ theory of liability was the theater breached its duty of care by knowingly setting up a sign on the floor when they knew a packed theater full of patrons would be headed straight for the spill and the sign at any minute. This theory would visit “actual knowledge” of the hazard on the theater at the exact moment the employee placed the sign on the floor in the path of the impending crowd.

    The Court held the decision to recognize the validity of Plaintiffs’ theory of recovery was one for a jury. In light of Plaintiffs’ evidence of the risk posed by the particular type of A-frame sign, the Court refused to hold as a matter of law that the theater fulfilled its legal duty to avoid creating an unreasonable risk of foreseeable harm to the public.

    The “constructive knowledge” portion of the first prong was mentioned in passing, as the Court refused to exonerate the theater’s employees for failing to notice and remedy the hazard when their excuse was the same reason given by Plaintiff for her failure to see the sign: the large mass of people pouring out of the theater. The Court noted the employees were probably in a better position to notice the fallen sign from their vantage point outside the crowd, as opposed to Plaintiff’s position within the tightly-packed crowd.

    This decision highlights a precarious position for premises owners. The mere use of a warning sign to alert patrons to a potential hazard can itself create a separate hazard. The expert utilized by Plaintiff mentioned a cone-shaped warning sign, rather than the common A-frame, was less likely to fall over in a large crowd. Barrier rope lines around the warning signs were also suggested. Nevertheless, A-frame style signs are the most common types of warning signs used in the U.S. What does this decision mean for well-intending premises owners providing warnings to patrons via the popular A-frame signs? Vigilance is best. If “Wet Floor” signs are put out, continuous monitoring of the area can ensure they are not knocked over, causing an unanticipated hazardous condition. The use of the sign itself will clearly not absolve liability as a matter of law.

    American Multi-Cinema, Inc., et al. v. Brown, et al., S08G1934 (Ga. June 1, 2009).