Marsha Buckson v. United States ( 2005 )

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                           FOR THE ELEVENTH CIRCUIT                    FILED
                                                                U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                    No. 05-12319                      August 30, 2005
                                Non-Argument Calendar              THOMAS K. KAHN
                              ________________________                  CLERK
                            D. C. Docket No. 03-00201-CV-4
    MARSHA BUCKSON, a minor child by and through
    her custodial parent and natural guardian, Joyce Buckson,
    JOYCE BUCKSON, individually,
                      Appeal from the United States District Court
                         for the Southern District of Georgia
                                   (August 30, 2005)
    Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
          Joyce Buckson, individually and on behalf of her minor child, Marsha Buckson
    (“Marsha”), appeals the district court’s entry of summary judgment in favor of the
    United States in this action brought pursuant to the Federal Torts Claim Act, 28
    U.S.C. § 1346 (“FTCA”). On appeal, Buckson argues the district court erroneously
    interpreted Georgia premises-liability law on the duties of business owners and
    invitees. After thorough review of the record and careful consideration of the parties’
    briefs, we affirm.
          We review the district court’s order granting summary judgment de novo. See
    Madray v. Publix Supermarkets, Inc., 
    208 F.3d 1290
    , 1296 (11th Cir. 2000). A
    motion for summary judgment should be granted when “the pleadings, depositions,
    answers to interrogatories, and admissions on file, together with the affidavits, if any,
    show that there is no genuine issue as to any material fact and that the moving party
    is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56 (c). “Where the
    record taken as a whole could not lead a rational trier of fact to find for the non-
    moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
    Zenith Radio Corp., 
    475 U.S. 574
    , 587, 
    106 S. Ct. 1348
    , 1356, 
    89 L. Ed. 2d 538
    (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 
    391 U.S. 253
    , 289,
    88 S. Ct. 1575
    , 1592, 
    20 L. Ed. 2d 569
           The parties are familiar with the underlying proceedings and we only
    summarize the relevant facts here. Buckson sued the United States for personal
    injuries then-eleven-year-old Marsha incurred as a result of a trip and fall that
    occurred at the Commissary of a military installation in Fort Stewart, Georgia. While
    exiting the waiting line at the cash register, Marsha tripped and fell on the rope
    partitions (soft-clad ropes suspended between free-standing metal stanchions, similar
    to the partitions one might see at an airport) and sustained injuries to her head, legs,
    and chest. It was undisputed that, just prior to exiting the partitions, Marsha had
    accompanied her mother through similar rope partitions, perhaps in a different part
    of the waiting-line area.
           The district court concluded, pursuant to Georgia premises-liability law on the
    corresponding duties of owners and invitees, that Buckson could not recover.1
    Applying Georgia law, the court stated the following:
                  The corresponding duties of owners and invitees have resulted in
           a two-part test for establishing liability. In order to survive summary
           judgment, a plaintiff must have evidence that: (1) the defendant had
           actual or constructive knowledge of the hazard, and (2) the plaintiff
           lacked knowledge of the hazard despite the exercise of ordinary care due
           to actions or conditions within the control of the owner.
               The FTCA provides a waiver of sovereign immunity when the negligent or wrongful
    conduct of a United States employee causes personal injury or death under circumstances where the
    United States, if a private person, would be liable in accordance with the substantive law of the place
    where the conduct occurred. See 28 U.S.C. § 1346(b)(1). Thus, the controlling substantive law in
    this case is the law of Georgia.
                 Notwithstanding this two-part analysis, when an invitee has
          successfully traversed an alleged dangerous condition, she is assumed
          to possess equal or superior knowledge of it. Specifically, Georgia
          courts presume that an invitee that has successfully traversed an
          allegedly dangerous area has actual knowledge of the dimensions of the
          area and that she knows or should know of the potential dangers posed
          by the area. Accordingly, a plaintiff in that situation cannot recover for
          a subsequent injury resulting from those dangers.
                 In this case, it is undisputed that Marsha traversed the partitions
          just moments before tripping on them. Defendant argues that Marsha
          should, therefore, be presumed to have at least equal knowledge of the
          low-lying rope. Plaintiffs entirely fail to respond to this argument in
          their response brief. They only contend that Marsha could not have
          gained knowledge of the hazardous rope on her prior visits to the
    Summary Judgment Order at 9-10 (citations omitted) (emphasis added).
          Based on Marsha’s equal or superior knowledge of the ropes, the district court
    presumed Marsha’s knowledge of the danger was equal or superior to that of the
    United States and entered summary judgment, citing our decision in Evans v. Mathis
    Funeral Homes, 
    996 F.2d 266
    , 269 (11th Cir. 1993) (observing that Georgia courts
    presume plaintiff’s equal knowledge of hazardous conditions when, inter alia,
    “plaintiff has traversed the steps only moments before falling” (citing Tuck v.
    Marriott Corp., 
    370 S.E.2d 795
    , 797 (Ga. Ct. App. 1988), and Roberts v. Gardens
    Servs., Inc., 
    356 S.E.2d 669
    , 671 (Ga. Ct. App.1987))).
           Buckson’s argument that the district court erred by focusing on Marsha’s
    knowledge on the day of the fall is inconsistent with both the Georgia law cited in the
    summary judgment order and Buckson’s position in the district court. In the district
    court, Buckson focused exclusively on the Government’s argument that Marsha had
    presumed equal knowledge of the rope partitions based on her numerous prior visits
    to the Commissary.          Consistent with the district court’s analysis, and as we
    enumerated in Evans, 996 F.2d at 269-70, under Georgia law, presumed equal
    knowledge based on previous exposure to a hazardous condition is different from
    presumed equal knowledge based on exposure to the condition “just moments
    before.” The Government relied on both theories in the district court. Buckson made
    no responsive argument to the Government’s position based on exposure “just
    moments before” the incident. At this late juncture, we will not consider her
    arguments on this point now. Cf. Novak v. Cobb County Kennestone Hosp. Auth.,
    74 F.3d 1173
    , 1177 (11th Cir. 1996) (refusing to consider errors alleged for first time
    on appeal) (internal citation omitted).2
              In any event, the district court’s analysis was entirely consistent with Georgia premises-
    liability law and, thus, on the merits, we are unpersuaded by Buckson’s arguments.
          On this record, the district court correctly determined there was presumed equal
    knowledge under Georgia law. We have thoroughly reviewed the record and, based
    on the well-reasoned order of the district court, affirm.