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McAfee v. ETS Payphones Inc.

The defendant had no actual knowledge or constructive knowledge that the specific payphone, which fell on the plaintiff's head while he was making phone calls, was damaged during a theft and posed a danger to customers.

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In this premises liability action, plaintiff Jessie McAfee appeals the trial court’s order granting summary judgment to defendant ETS Payphones, Inc. For the reasons set forth below, we affirm. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.1 A de novo standard of review applies to an appeal from a grant of summary judgment, and we review the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Bryant v. DIVYA, Inc .2

So viewed, the record demonstrates that ETS Payphones owns and maintains approximately 2,500 pay telephones in Georgia and several other states across the southeast. In late 2003, ETS noticed an increase in the incidents of money being stolen from their payphones and suspected that a recently-terminated employee was responsible. As part of its normal procedures, ETS physically inspected every payphone at least once per month and used an automated computer polling program, whereby each phone was called nightly to determine that it was functioning and the amount of money that had been collected. However, during the recent rash of thefts, it was not uncommon for the thief to steal the collected money by drilling out the payphone’s locks, which would loosen the phone’s casing from its base but would leave the phone fully functioning. In such circumstances, only a physical inspection would alert ETS to the fact that the payphone had been subjected to theft or tampering.

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