*1 76390. BALDWIN COUNTY HOSPITAL AUTHORITY
v. CONEY. Judge.
Sognier, Coney brought County Christine an the against action Baldwin Hospital Authority arising to recover of her fall damages out premises hospital authority. the of a The operated the authority’s summary denied the but certi- ruling review, fied its interlocutory for immediate and we this appeal. appellee record reveals that her was hos had visited son who
pitalized appellant’s facility. exited the on the main She elevator floor and walked few feet when fell. Her toward exit she com plaint that alleged slipped she and fell “on slick substance which had been left employees hospital,” thereby on the floor breaking her an leg. allegation employees This was that appellant’s had floor, themselves left consequently the substance on the and that appellant, through employees, knowledge its had that there was water on the Ligon, floor. See Alterman Foods v.
1. In its motion for judgment, proffered appellant no pierce evidence to allegation. that It argued to the trial court appellee proved had appellant knowledge had not al- leged, and that therefore it summary judgment. Ap- was entitled to pellant puts court, forth the same relying contention on this Bright court’s decisions
272) and Newman v. misplaced. First, We find this reliance to be
neither of those cases knowledge dealt with actual of a foreign sub- Bright, stance on the floor. In “appellants we noted that concede that there is no evidence appellee knowledge had actual of the ‘slick ” spot.’ Newman, Id. at 642. In it was appellee “uncontroverted that did not knowledge have actual foreign substance on the floor may which have caused appellant’s fall.” In Id. at 828. the case sub judice, contrast, presented we are allegation with an of actual knowledge appellant-defendant, on the allegation, al- though answer, denied in the pierced upon must be rebutted and mo- tion judgment.
Second, Bright neither nor Newman should be read as placing initial plaintiff, respondent on motion for judgment, coming allegations forward with evidence to Bright, the complaint. In re- covery was that knowledge imputed constructive should be to the de- fendant because one employees of the store’s area when she fell easily and could foreign have seen the substance on the floor. this, proving but had the burden holds not that spot’ not be seen “it ‘slick could that where is uncontroverted merely by employee’s “could not be detected from that station” and in- floor,” question no “reasonable looking id. at át sufficiently raised, had dis- spection” defendant-movant been summary judg- proved warrant alleged of restaurant appellant presence alleged ment. In *2 impute sufficient to vicinity in the the she fell was employees at time Defendant, moving in for sum- knowledge defendant. by plaintiff’s in on mary relying burden judgment, carried its conten- depositions, supported which this found vicinity. Thus, cases held in both employees tions that no were the knowledge had specific of constructive allegations that the plaintiff the to come sufficiently pierced been to shift the burden to As an issue of fact. each forward with evidence which could create evidence, plaintiff each defendant did not come forward with such properly summary judgment. every general There is no that can be made as what statement sup- in every necessarily in fall show slip defendant and case must “carry its porting summary in bur- judgment a motion for order Although den” on it is a motion such a motion. axiomatic “[o]n for summary judgment establishing the non-existence the burden any upon party all genuine moving issue of fact is the doubts movant,” Ham, 43, 45 are to Ham v. against be resolved the 429) (1973), exactly what the movant must rebut can facts have only by particular be determined reference facts been to what pleaded by in each case. or otherwise shown the record individual (c) summary OCGA be ren- provides 9-11-56 “shall § dered if pleadings, depositions, interrogato- forthwith the answers ries, affidavits, any, if file, together the show” and admissions with Thus, genuine supplied.) no issue of when (Emphasis material fact. judgment, the defendant fall case moves plaintiff the evi- coming has no initial forward with the dence. But where is no evidence in the record there liable, at plaintiff claim the must least that defendant is alleged recovery. him her there is no entitling have facts Where fact, fact, allegation particular of a and no evidence such disprove fact, in prevail. the movant need not order to Thus, knowledge it is or construc- extent knowledge recovery, alleged entitling plaintiff tive a fact as by particular the defendant-movant miist refute that coming plaintiff’s right with to recover negating forward evidence alleged alleged based on If has that the defend- plaintiff facts. defect, bar, in the de- ant had actual of a the case not know of proffer fendant-movant must some evidence that it did defect, proceed in It is not judgment. order toward necessary, however, for the come forward with defendant-movant alleged, may or which negating evidence facts which have not been fairly not allegations pleadings. be drawn from the The “bur- den” on the allegations support make which will recov- — i.e., ery if “pierce” allegations true. defendant must then those — step show that the allegations are not true as the next the sum- mary judgment process. Act, do not forget Georgia
We that the Practice 9- Civil OCGA § 11-1 seq., Thus, et pleading. general authorizes notice even the most suffice, or conclusory allegation of will be fact and must rebutted. Similarly, though if alleged, not there are shown facts (proffered record by any party) recovery, even if which would pled them, has not be these facts must rebutted prevail defendant-movant in order to upon judg- ment. But we do not cast the defendant-movant burden of rebutting or disproving facts or are alleged, may theories which fairly made, allegations drawn from are nor shown by any record, prevail evidence order to motion for sum- mary judgment. was the reason for this court’s That affirmance grant court’s of summary supra.
Applying the general principles above to the case at discussed bar, we find that appellee alleged in her complaint appellant actual knowledge of a slick substance on the floor which she fell. Thus, regardless of allegations, other proceed order to further upon motion for summary judgment, appellant required pierce was that allegation by offering some proof of its lack of knowledge. Because it so, failed appellee to do required nothing was to do fur- ther, consequently and properly appellant’s trial court denied mo- tion for summary judgment.
2. We note that the confusion regarding proof burdens of summary judgment in slip compounded and fall has been im- cases by measurably practice court, of this this author is not immune, of citing cases standing perfectly principles law, valid of but which misperceptions lead to regarding they burdens because are not procedurally similar to the being case An example decided. of this is our citation Giant, (337 to Mitchell v. Food App. 176 705 Ga. SE2d 353) (1985), case, Newman, a directed verdict supra, which dealt with summary judgment, McBride, Lend Transp. and to Lease Co. v. (315 449) 169 App. (1984), Ga. 902 jury case, SE2d a verdict Bright, supra, a summary judgment decision. list of such confus- ing cross-citation long, Kenny is and includes such decisions as v. M M (358 & Supermarket, 641) (1987), App. 183 Ga. 225 SE2d and 183 Ga. App. Rush v. Giant, (358 Food 919) (1987), which, 388 SE2d 342 Mitchell, themselves, rely also summary judgment cases
although 781) (1988), (366 App. SE2d v. 186 Ga. 253 supra; Food Giant Hughes Hosp. Auth. case, v. which cites summary judgment a 695) (301 (1983), a directed County, App. 530 SE2d Floyd 165 Ga. establish proof required case, of what in its discussion verdict Foods Alterman case of and the seminal knowledge; constructive which, analysis of in its case Ligon, supra, judgment v. a show, numerous must cites and fall action what the 138 Ga. Hardy, v. cases, Winn-Dixie Stores including jury verdict Reid, 142) (1976) Sears, & v. (226 Roebuck Co. and App. 342 SE2d imply that all This App. 132 Ga. 136 it has become obvious inappropriate, but these citations are into an intention have read these citations litigants least some upon litigants sum the burdens change on this court’s intended mary judgment posture, change which was problem acknowledge correct this court. It this court to and behooves the cases we cite by carefully procedural aspects of distinguishing the valid they entirely apt, although if the cited case stands are not Green See, Winn-Dixie law. appropriate proposition e.g., and (1988), where this App. ville v. was done in 1. Division Deen, J., McMurray, Birdsong, J., Judgment C. P. affirmed. J., J., J., only. Beasley,
P. concurs in Pope, concur. J., Benham, JJ., Banke, Carley, specially. P. concur Judge, concurring specially. Banke, Presiding I agree However, majority’s ef-
properly persuaded I am not denied. forts to redeem
272) (1986), and Newman Single- expressed in Shiver v. For the reasons 523) (1988), I to believe
tary, continue confusion in the inconsistency those cases constitute source “slip-and-fall” respect summary adjudication law with consequently I knowledge; involving claims and would overrule them. *4 knowledge, liability superior his proprietor’s
“The basis of the condition, as his com- superior opportunity dangerous or to discover v. Belk-Gallant Co. pared opportunity of his invitee.” with 575) (1963). 785, (131 Cordell, allege To App. 107 Ga. 788 SE2d knowledge” of a proprietor superior “constructive condition to superior “opportunity way another of that he had a alleging by evidence tend- allegation may supported discover” it. Such an be premises long ing to existed on the prove that the condition had in- to reasonable enough through to have been detected adherence
343 spection procedures; conversely, allegation may negated be such an procedures evidence were in inspection reasonable fact See, Giant v. question. followed on the in Food e.g., occasion 253, (366 781) (1988); 186 App. 256 Winn-Dixie Green- of 785) (1988). ville v. 257, 186 App. 259 slip-and-fall Where the case defendant-proprietor moves in superior the face of he had he injury, of condition which caused the may be required negate inspection” theory lia- “inadequate bility regardless of it specifically alleged; whether has been for it is his burden entitling as movant to at “negate least one essential element recovery theory every fairly . . . under drawn from (cits). pleadings . and evidence . .” Henderson v. Atlanta Transit System, App. 133 Ga. (Emphasis Yet, from original.) I Bright read this in v. court’s decisions Food Giant Inc., v. Ruby Tuesday, they Newman allega- hold that an tion of constructive knowledge may summarily be rejected slip- and-fall upon case based the mere absence from the record of evi- dence tending inadequate inspection theory liability, rather presence than of evidence tending negate it. See Shiver Singletary, v. supra, 186 Ga. 748-749. Such a standard of review normally would improper judg- ment in that it proof would shift respect with to a ma- terial issue from the respondent. movant
Only in the rare event
that a claimant-respondent,
being
after
furnished a
so,
full and fair opportunity
do
has demonstrated
complete inability
unwillingness
or
support an essential element
his case
respect
with
to which he
proof
will have the burden of
at trial
is there authority
granting
a defendant-mo-
vant based on the mere absence from
record of
support-
evidence
ing
See,
the claim.
e.g.,
Catrett,
Celotex Corp. v.
I am Judge authorized state that Benham joins special concurrence. Judge, concurring specially.
Carley, I concur with Presiding Judge special Banke’s well reasoned con- currence with the exception totally I paragraph last thereof. agree with the conclusion Ga. App. *5 272) (1986) Inc., 184 Newman 26) for reasons so should overruled My Judge problem clearly by Presiding with the last Banke. forth set pre- special paragraph of the that this concurrence pro- responsibility analysis ceding to claimant’s conditions excellent op- “being and fair furnished full his duce additional evidence portunity procedural gering really meaningless phrase . to so. . .” That do trig- summary judgment. The real of a motion for context production of sufficient is the the movant-defendant event negate cause of action. element of evidence to Then, essential claimant-respon- only then, the burden shift will generally Food Giant v. dent. See 781) (1988); Greenville v. Winn-Dixie of 785) (1988). September 9, 1988.
Decided Lumley, appellant. Ashley Royal, Jerry A. C. for appellee. Thornton, Richard B. LANDING, et al. LTD. v. WIRTZ
76575. BELLS FERRY Judge. Birdsong, Chief appeals grant plaintiff from of defendants’
The the trial court’s complaint. motion to dismiss the 1986, 20, of lease and suit December for breach
Plaintiff filed interrogato- arrearage. Following answer, filed rent their defendants interrogatories plaintiff April 24,1987. did ries on within the time The not answer the required by filed mo- On June defendants law. (d). authority pursuant Still, the § to of OCGA 9-11-37 tion plaintiff dismiss Finally, August plaintiff filed answers did not answer. reply interrogatories motion dismiss. The dismiss, motion and the trial court defendants’ complains doing, in so because there abused its discretion court finding plaintiff. Held: was no or wilfulness case. The trial its The court did abuse discretion arguments judge, considering counsel, “[a]fter citations of author- ity specifically record,” and the entire found the timely respond interrogatories fashion, failed to failed but defendants con- seek an extension of time and failed even to contact cerning problem, respond the motion to dismiss. apparent justification “[t]here Plaintiff’s found is no discovery complete request.” respond to failure to Defendants’