Lead Opinion
Appellee Patricia Lucille Taylor brought suit against appellant Bruno’s Food Stores, Inc. d/b/a FoodMax (“FoodMax”) for actual damages, contending that FoodMax was actively negligent in allowing or causing its floor to be wet and by failing to post proper warning signs to alert its patrons, including appellee, of the danger.
The facts of the case sub judice show that appellee entered Food-Max in Tifton, Georgia at approximately 10:30 p.m. on May 4, 1994, to buy groceries and other items. After appellee obtained a shopping buggy, she proceeded toward the direction of the meat department. Appellee was paying attention to where she was going; however, when she reached the floral area and started to turn left, as she was pushing her buggy into the intersecting aisle, she took the opportunity to look at the plants as she “rolled by.” Appellee testified that she was walking normally when her right foot slipped. Appellee hit her left knee on the floor and then went down on her other knee as she continued to hold onto the buggy. Appellee did not let go of the shopping buggy until she stood up. At the time of appellee’s slip and fall, she was wearing slacks and Reebok tennis shoes.
Appellee did not see any moisture on the floor prior to her fall. However, after appellee stood up, she noticed that both of her pant legs were damp. Appellee then carefully examined the floor in the area of her fall and discovered a strip of damp surface about six inches in width and approximately three to five feet in length, which extended into the area where she had fallen. Appellee did not observe any standing water, but could now see a difference in the sheen on the floor where it was damp. After her fall, appellee noticed that the floor was being cleaned by a man in the produce department, which was in a separate department from where she had fallen. It is uncontroverted that, at the time of appellee’s fall, FoodMax’s floor was being cleaned by an employee of United Floor Maintenance Company (“United Maintenance”).
FoodMax appealed from the trial court’s order denying its motion for summary judgment and, in three enumerations of error, alleges
The foreign substance analysis set forth in Alterman Foods is not appropriate in this case. Even if such foreign substance analysis was not mere dicta, see Alterman Foods, supra at 622, such analysis would not apply in the case sub judice, because the slip and fall was caused by a liquid cleaning compound intentionally placed on the floor, not by a foreign substance. Id. at 623-624. Therefore, this Court will treat appellant’s enumerations of error as a failure of appellee to meet her burden of proof as established in Lau’s Corp. v. Haskins, supra.
On a motion for summary judgment under OCGA § 9-11-56, the defendant, as the moving party, may prevail by “piercing the plaintiff’s pleadings,” i.e., demonstrating that the plaintiff will be unable to prevail at trial, even when all doubts are resolved in favor of the plaintiff, because there is no issue of material fact as to at least one essential element of the plaintiff’s prima facie case. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, supra; Greenforest Baptist Church v. Shropshire,
However, even if a defendant is unable to pierce the plaintiff’s pleadings, it may still prevail at summary judgment by presenting evidence which establishes a prima facie affirmative defense. In so doing, the defendant, as the moving party seeking summary judgment, may not rely on inferences from the evidence presented, as all inferences must be drawn in favor of the plaintiff, as the nonmoving party. Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the burden of production of some evidence shifts to the plaintiff, who will survive summary judgment by presenting any evidence which cre
1. “An owner of premises, as to invitees, owes a duty to exercise ordinary care for their protection to keep the premises safe, not reasonably safe. A business invitor owes a nondelegable duty to protect [its] invitees from injury. Thus, [one] dispositive issue in the case sub judice is whether there is any evidence which would authorize a jury to find that [FoodMax] had not delivered full possession and complete control of [its floors to United Maintenance] and if full possession and complete control were not delivered, whether [appellee] was injured as a result of a breach of the nondelegable duty owed to [her] as an invitee [to the store] that [FoodMax] controlled.” (Citations and punctuation omitted.) Towles v. Cox,
At the time of appellee’s fall, appellant had actual knowledge that the floors of its store were being cleaned by an employee of United Maintenance. FoodMax was open 24 hours a day for its customers to shop and had hired United Maintenance to clean the floor nightly between the approximate hours of 11:00 p.m. and 8:00 a.m. At the direction of FoodMax, the portion of the store in which the floor was being cleaned was not closed to customers. This decision benefited FoodMax, as customers could shop in the entire store. Food-Max simply instructed United Maintenance to start its work in the area of least traffic. Therefore, full possession and control of the floor had not been delivered to United Maintenance, and the floor was jointly occupied by both United Maintenance and FoodMax, making FoodMax vicariously liable for the negligent acts of its contractor. See Feggans v. Kroger Co., 223 Ga. App. 47 (
Further, FoodMax provided yellow “wet floor” signs to United Maintenance for its use. It is uncontroverted that no yellow “wet floor” signs had been placed within the store to warn the patrons of the danger of the wet floor on the night that appellee fell, although such signs were readily available. FoodMax provided shopping buggies for the use of its patrons and should have been aware that such shopping buggies would block the patron’s view of the floor directly in front of the buggy. Therefore, there was a greater duty placed on FoodMax to place out warning cones or signs; this duty was particularly applicable because appellant knew that the floor was being cleaned and that its scrubbing machine left fluid on the floor that had to be removed by hand. Under the facts of this case, as outlined above, the failure to put out the warning signs or to ensure that United Maintenance put out warning signs would be active negligence.
Acts or omissions of an owner/occupier of the premises can create a dangerous condition on the premises; such acts or omissions constitute active negligence and do not become static just because the condition pre-exists the arrival of the invitee. Where acts or omissions of the owner/occupier work positive injury to others, such acts or omissions are active negligence in the classic sense. See Smith & Prosser, Cases & Materials on Torts, p. 320 (1). Such acts or omissions by FoodMax of providing a scrubbing machine for United Maintenance’s use that left a streak of water on the floor and which may not have been in proper repair, failing to make sure the streak of water was promptly and properly removed from the floor, along with the failure to make sure the yellow “wet floor” signs were properly placed on the floor, together, would constitute active negligence. See Lipham v. Federated Dept. Stores,
Where the owner/occupier of the premises through malfeasance (commission of an act wrongful in itself), misfeasance (improper performance of an act), or nonfeasance (the failure to perform an act) creates a reasonably foreseeable danger to an invitee, then knowledge is presumed or imputed to the owner/occupier, because it is the tortfeasor’s act or omission that created the danger or allowed the danger to continue unabated or without warning. Lipham v. Federated Dept. Stores, supra; Wade v. Mitchell, supra; American Nat. Bank of Brunswick v. Howard,
3. Further, there was a complete failure on the part of FoodMax to establish the condition of the floor at the time of appellee’s fall, so that there was no evidence to show that appellee should have noticed and could have avoided the hazard. See Mallory v. Piggly Wiggly Southern,
“[T]he evidence does not conclusively show a failure of [appellee] to exercise ordinary care for [her] own safety. [Appellee’s] testimony that [she] was not looking directly at the floor at the time [she] fell because [she] was [looking at a display of plants] does not alone show [she] was not exercising ordinary care. Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place. While we have held that a plaintiff fails to exercise ordinary care when she admits she could have seen the [moisture] on the floor had she been looking, no such admission is present in this case.” (Citations and punctuation omitted.) Chaves v. Kroger,
Appellee further testified that, once she realized the floor was being cleaned, she was cautious and looked for other wet spots as she proceeded onward to the meat department. However, even when exercising great caution and with knowledge of the danger, appellee slipped again, but did not fall, on a “drop” of clear liquid approximately one to two inches in diameter, which she could not see until after her slip. This demonstrates how difficult it was, in the exercise of ordinary care, to discover the presence of such cleaning fluid on the floor. Clearly, based on the evidence, material issues of fact exist for jury determination as to whether appellee, who was pushing a shop
Moreover, on summary judgment, the trial court can draw only reasonable, favorable inferences and is not permitted to draw negative inferences against the plaintiff. The special concurrence disagrees and cites to OCGA §§ 24-1-2 and 24-4-9 in support thereof. Regretfully, the special concurrence’s citation to OCGA §§ 24-1-2 and 24-4-9 with regard to a trial court’s function on summary judgment strikes at the heart of a fundamental misunderstanding of the process of summary judgment and its governing laws. Both Code sections cited by the concurrence speak to the jury’s function with regard to trials. OCGA § 24-4-9 states that “[i]n arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved.” (Emphasis supplied.) OCGA § 24-1-2 states that “[t]he object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” See also Holcomb v. State,
Indeed, the special concurrence provides an ideal illustration of the fundamental error in usurping the role of the jury and the function of the trial process in its example of appropriate “inferential” reasoning. When there is uncontradicted testimony by the plaintiff that she was not watching where she was going, the spécial concurrence takes the position that the trial court can infer from such facts that she would have the opportunity to avoid the danger, had she seen it. Even where there is such uncontradicted testimony as in the
Certainly, the special concurrence’s urged ability to draw “inferences” has absolutely nothing to do with a defendant’s burden to show an “absence” of a material issue of fact as to an essential element of the plaintiff’s claim. Inferences cannot be drawn from an absence of fact.
Along these same lines, an inference of fact such as the one alleged in the special concurrence’s illustration would not form a basis by which a court could determine that a defendant met its burden of proof on summary judgment, because a decision as to the merits of the inferred fact would be implicit in such determination.
Since a court’s role on summary judgment does not encompass a determination as to the truth of any factual issue, a “negative” inference such as that in the special concurrence’s illustration may not be drawn in order to defeat a plaintiff’s claim. Whether a negative inference truly arises from other proved facts and a determination as to the truth thereof are questions for the jury at trial, not for the bench on summary judgment.
In the case sub judice, FoodMax failed to meet its burden of piercing the allegations of appellee’s complaint, and the trial court properly denied FoodMax’s motion for summary judgment.
Judgment affirmed.
Notes
In the case sub judice, favorable inferences may be drawn by the trial court on behalf of the plaintifi/nonmoving party, since the granting of a motion for summary judgment deprives the non-moving party of his right to a trial by a jury contrary to the Constitutions of the State of Georgia and of the United States. Ga. Const, of 1983, Art. I, Sec. I, Par. XI; U. S. Const., Amend. VII. “[T]he trial court must give [the plaintiff/nonmoving party] the benefit of all favorable inferences that may be drawn from the evidence. [Cits.] The act cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact.” Holland v. Sanfax Corp. ,
However, “ ‘[a]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’ [Cit.]” Edwards v. Campbell Taggart Baking Co.,
See also DeVane v. Smith,
“Inferences are deductions or conclusions which with reason and common sense lead the jury to draw from facts which have been established by the evidence in the case.” (Emphasis supplied.) Black’s Law Dictionary, 5th ed., p. 700.
In addition, it must be noted that the “negative inference” in the special concurrence’s illustration clearly does not address an essential element of plaintiff’s claim but, instead, goes to the affirmative defenses of contributory negligence and comparative negligence, e.g., avoidance and equal knowledge. Although a plaintiff has a burden of production, i.e., presenting any evidence which creates a material issue of fact as to the affirmative defense, a plaintiff has no duty to present evidence disproving an affirmative defense on summary judgment. See Hodge v. SADA Enterprises, supra at 691.
Concurrence Opinion
concurring specially.
Although I agree the trial court properly denied FoodMax’s motion for summary judgment, I write separately because I cannot agree with the analysis the majority used in reaching that result. In my view, the majority misconstrues and misapplies our law concerning summary judgment, inferences, active negligence, and distractions.
1. Because Taylor slipped on water intentionally placed on the floor by FoodMax’s cleaning company, consideration of the Alterman Foods foreign substance analysis is unwarranted (see Alterman Foods v. Ligon,
2. I am concerned that the majority’s expansive and, I believe erroneous, opinion could, if unchallenged, result in a framework for
Also, I believe the time has come for this Court to stop tacitly endorsing, through judicial silence, any published opinion suggesting that summary judgment is some scheme created to strip deserving plaintiffs of their right to jury trials. These statutory procedures have been a part of Georgia law for three decades and are an integral part of our Civil Practice Act. Further, these procedures, when applied with an even hand, serve both the interests of justice and judicial economy well. Of course, granting summary judgment is a serious matter that should not be undertaken lightly. I know of no one who believes that it should be. It is also a serious matter to deny summary judgment when the law and the facts demand otherwise. In this connection, it is important to remember that “[t]he right to a jury trial as guaranteed by the Seventh Amendment to the United States Constitution is not infringed where, as here, the jury would have no role since there are no issues of material fact in dispute. See Barrett v. Independent Order of Foresters, 625 F2d 73 (5th Cir. 1980).” Bledsoe v. Central Ga. Production Credit Assn.,
Thus, it is unlikely that the cases in which summary judgment is properly granted would actually be decided by the jury because the grant of summary judgment shows that on the available evidence a directed verdict should be granted. If this is the expected result, I see little utility and great waste in such a procedure. Consider the numerous cases under our former summary judgment procedures in which appellate courts recognized that even though summary judgment was not authorized because the movant had not disproved the nonmoving party’s case, when the burden of proof shifted, it was likely that the nonmoving party could not prove its case. See, e.g., Winn-Dixie &c. v. Ramey,
Thus, it is recognized that the purpose of summary judgment is to eliminate “jury trials where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c).” Porter v. Felker,
3. The majority’s conclusion that movants for summary judgment are never allowed the benefit of inferences is contrary to our law and does not take into consideration the posture of the case when trial courts consider motions for summary judgment. In these proceedings the rules on admissibility of evidence apply. Strickland v. DeKalb Hosp. Auth.,
“When viewed in proper perspective under present practice in Georgia, summary judgment under our law is just what the name implies. It is an abbreviated trial, but of no less importance than any other trial on the merits of the case. One must prepare for a summary judgment hearing with the same thoroughness and expectation of finality one must contemplate for any trial.” Summer-Minter v. Giordano, supra at 606. Consequently, “ ‘[s]ummary judgment may be granted on evidence that would compel the direction of a verdict; and should be denied when a directed verdict would be improper.’ 6 Moore’s Federal Practice, Para. 56.15[4], p. 56-522.” Eiberger v. West,
The correct rule regarding inferences is that “[t]he party moving for summary judgment has the burden of showing the absence of a genuine issue of any material fact and if the trial court is presented with a choice of inferences to be drawn from the facts all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion. United States v. Diebold,
4. Additionally, although the majority cites and quotes from Lau’s Corp. v. Haskins, supra, the majority nevertheless apparently refuses to accept Lau’s Corp.’s holding that “[a] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case.” Id. at 491. “The burden on summary judgment is on the movant to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. OCGA § 9-11-56 (e); Meade v. Heimanson, [supra].” (Emphasis supplied.) Riley v. H & H Operations,
Although, of course, the movant could carry this burden, as the majority states, by presenting evidence to negate an essential ele
This means that defendants/movants need not prove affirmatively that plaintiffs failed to exercise ordinary care for their own safety when the records show that plaintiffs testified they were not watching where they were going, but if they had they could have seen the foreign substance on the floor. If that evidence remains undisputed, the trial court is entitled reasonably to infer that the plaintiff would have avoided the danger. “In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent to those proved.” OCGA § 24-4-9. Even though this Code section refers to “the jury,” because the court in ruling upon a motion for summary judgment exercises the same function as if it were ruling upon a motion for directed verdict, the court is authorized to make the same inferences the jury would be permitted to reach. “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a).
If plaintiffs wish to contend they could not have appreciated the danger even if they had seen it, or could not have avoided the danger, it is the plaintiffs’ burden to point “to specific evidence giving rise to a triable issue” (Lau’s Corp., supra at 491) on these points in their responses to the motions for summary judgment. Neither trial courts nor this Court, however, is allowed to “infer” that some unknown reason may exist why the plaintiff was unable to either appreciate the danger or was unable to avoid the danger if seen. Such conclusions are not inferences, but gross speculations. See generally Derry v. Clements,
Consequently, the majority’s “negative inference” theory is contrary to Alterman Foods and Lau’s Corp., and in these circumstances is without the support of legal authority. Attempting to limit the trial court’s authority to draw reasonable inferences of fact in summary judgment cases by labeling a particular judicial determination as a negative inference also runs contrary to the statutory object of the rules of evidence. See generally OCGA § 24-1-2.
5. Also, the majority’s statement that the plaintiff in this case is excused from watching where she was going because she was distracted by looking at plants on display is contrary to our law. See Harper v. Kroger,
6. Moreover, the majority’s active negligence theories and its effort to merge active negligence concepts in slip and fall cases are contrary to Supreme Court precedent and were rejected by this Court in Adams v. Sears, Roebuck & Co.,
Although I concur with affirming the trial court, the better practice would be to dismiss the appeal as having been granted improvidently.
I am authorized to state that Judge Ruffin joins in this special concurrence.