A Home Depot store in Atlanta (Photo: Zachary D. Porter/ALM)

A suit claiming a fall in a Home Depot ultimately caused a customer to lose his leg has caused a split on the Georgia Court of Appeals.

Judges Sara Doyle and Amanda Mercier affirmed the trial court's decision to throw out the lawsuit, but the third member of the panel, Chief Judge Stephen Dillard, wrote a partial dissent saying the case should go to a jury.

In Denis Weickert's own words, he was trying to “get in and get out” when he walked into a Home Depot garden center on the day he fell, May 21, 2014. He had been there many times before. On that day, he wanted a timer for his sprinkler. He immediately asked an employee at the cashier stand for help. The cashier started walking and told him to follow, which he did. Within five to 10 steps, he began slipping in a pool of water from the watering of plants. He landed on his right leg, which was so badly broken that it ultimately had to be amputated, according to the decision.

Weickert sued Home Depot for damages, including medical bills and lost wages. He argued he didn't know about the water on the floor and was distracted by following the cashier. Home Depot moved for summary judgment, arguing that the water was in plain view and caution signs were out. Cobb County State Court Judge John Morgan dismissed the lawsuit, granting summary judgment to Home Depot. Weickert appealed.

All the judges agreed that Home Depot employees knew about the water and had placed warning signs, which Weickert could have seen. “There is no evidence that the Home Depot employee continued to engage Weickert in conversation while walking him to the particular store aisle,” Doyle said. “Weickert then voluntarily chose to follow the employee so closely that he could not see around him. And while the employee walked through the water without pointing it out, the pictures show, and Weickert admits, that there was a 'wet floor' warning sign in the area where he fell, the expanse of water in the garden center was large, and Weickert knew from his numerous previous trips to the Home Depot that water collected in that area after the plants were watered.”

All of Weickert's choices were within his own control and could not be anticipated, Doyle said. “This is the linchpin of this and every distraction doctrine case,” Doyle said. “Not just any conduct of an employee becomes a distraction because a customer claims it is so. The distracting conduct must be in the control of the store owner and be of such a nature that it would necessarily divert a customer's attention.”

But Dillard saw it differently.

“This case is the poster child for the difficulty often faced by both trial and appellate courts in applying the 'distraction doctrine.' Indeed, to say that this doctrine is imprecise is the height of charity. Nevertheless, this Court must determine if there is a genuine issue of material fact as to whether Weickert was distracted to such a degree that he is 'not bound to the same degree of care in discovering or apprehending danger,'” Dillard said.

“Here, the majority concludes that Home Depot is entitled to judgment as a matter of law because the conversation between Weickert and its employee was induced and anticipated by Weickert. But to hold that a customer forfeits the possible protection of the distraction doctrine by asking for help from an employee ignores the duty owed by an owner/occupier to an invitee,” Dillard said.

Whether or not Home Depot might have anticipated that its employee's instructions to follow and the ensuing conversation would be a distraction while walking through pooled water “are questions for a jury,” Dillard said.

Home Depot was represented by Stephen Sparwath, Derrick Bingham and Ian Hall of Owen Gleaton Egan Jones & Sweeney. Sparwath said he needed to check with his client before commenting. Home Depot's corporate office did not have an immediate response.

Weickert's appellate counsel, Darren Summerville of the Summerville Firm, said Friday he and Maxwell Thelen of his office are already at work on a request for the Georgia Supreme Court to review the decision.

The case is Weickert v. Home Depot, No. A18A0904.