BRUNO‘S FOOD STORES, INC. v. TAYLOR.
A97A1395
Court of Appeals of Georgia
DECIDED SEPTEMBER 9, 1997
228 Ga. App. 439 | 491 SE2d 881
ELDRIDGE, Judge.
Hart & McIntyre, George W. Hart, Thomas W. Thrash, Jr., for appellee.
ELDRIDGE, Judge.
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 FoodMax 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
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, 181 Ga. App. 194, 196 (1) (351 SE2d 718) (1986). In short, the owner/occupier cannot insulate itself from liability simply by hiring an independent contractor to clean its floors and, under the facts of this case, may be vicariously liable for the negligent acts of its contractor.
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. FoodMax 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 (476 SE2d 822) (1996). Because FoodMax had not relinquished full possession and control of the floor and had authorized the application of the cleaning compound, FoodMax would be presumed to have knowledge of the existence of the moisture on the floor. The knowledge and conduct of United Maintenance are imputed to FoodMax.
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, 263 Ga. 865 (440 SE2d 193) (1994) (employee unintentionally knocking down plaintiff was active negligence);
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, 117 Ga. App. 834 (161 SE2d 838) (1968). Clearly, the evidence was sufficient to show material issues of fact exist as to whether FoodMax was actively negligent in failing to exercise ordinary care for appellee‘s safety.
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, 200 Ga. App. 428, 430 (408 SE2d 443) (1991). Linda Harris testified generally about the amount of water which previously had been left behind by the scrubbing machine and testified that such amount of water was visible. However, this testimony was not specifically directed as to the date, time, and location of appellee‘s fall, such as to show that appellee should have observed the damp area on the floor. Such testimony was simply a general description as to the usual condition of the floor while it was being cleaned. This testimony failed to show that a customer pushing a shopping buggy could see the narrow strip of sheen on the floor in the location of appellee‘s fall. Linda Harris described the streak of water that was usually left by the machine as being approximately one inch in width, which varied from appellee‘s description of the damp sheen that she observed after her fall, which was approximately six inches wide. The only testimony that Linda Harris gave that was specific to the date, time, and location of appellee‘s fall was that “a little bit” of water was on the floor. Further, her testimony did not show what could have been seen by appellee as she proceeded down the aisle with a shopping buggy in front of her; the evidence failed to show not only that appellee should have seen the moisture but would have had suffi-
“[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, 213 Ga. App. 348, 350-351 (444 SE2d 606) (1994). Further, there is no evidence in the record that shows that, if appellee had seen the narrow strip of sheen on the floor immediately prior to her fall, she could have avoided it. Appellee simply testified that she was looking where she was going when she entered the store; that at the time of her fall, she was not focused on the floor but was turning into a different aisle and was looking at a display of plants; that she did not see anything on the floor that would indicate that it was damp prior to her fall; that she did not let go of the shopping buggy until after she stood back up; that it was only after discovering that both her pant legs were wet, that she stepped back from the buggy, looked down, and was able to see a narrow strip of sheen on the floor, which was approximately six inches wide and between three and five feet in length; and that she saw no signs or cones to alert her to a danger of which her individual senses might have inadequately provided her with notice. It was reasonably foreseeable to FoodMax that the shopping buggy, which may well be filled with a customer‘s selections, could obstruct a customer‘s view of the floor. Further, at or near an intersection of aisles, a customer‘s view of the intersecting aisle is obviously blocked by shelving so that the floor cannot be seen ahead, and customers must be on the lookout for other customers who may be crossing or turning, which could distract a customer from looking at the floor ahead of her.
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
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 special 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.4 The “inference” in the illustration is actually an implication that the special concurrence has chosen to make on behalf of the defendant, which choice is without basis in fact or law on summary judgment.5
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. Birdsong, P. J., and Ruffin, J., concur specially.
BIRDSONG, Presiding Judge, 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, 246 Ga. 620, 623-624 (272 SE2d 327)), and FoodMax‘s arguments to the contrary are without merit. Consequently, to establish her cause of action Taylor only was required to show an act or omission by FoodMax that was the proximate cause of her injury and which she could not have avoided through the exercise of ordinary care. Id. at 624. Under the evidence in this case, Taylor successfully carried that burden. Thus, I concur that the trial court did not err by denying summary judgment to FoodMax.
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 F.2d 73 (5th Cir. 1980).” Bledsoe v. Central Ga. Production Credit Assn., 180 Ga. App. 598, 599 (4) (349 SE2d 821). Accord CM3, Inc. v. Assoc. Realty Investors/Prado, 201 Ga. App. 428, 429 (411 SE2d 320).
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, 186 Ga. App. 257 (366 SE2d 785). It is hard to comprehend what would be gained by a return to such procedures. Surely there would be no benefit to the litigants who must fund the litigation, or to the taxpayers who must pay ultimately for such cases to clog already full trial dockets.
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.
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., 197 Ga. App. 63, 65 (397 SE2d 576). “Evidence offered on motion for summary judgment is held to the same standards of admissibility at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Punctuation omitted.) Hall v. Cracker Barrel &c., 223 Ga. App. 88, 92 (476 SE2d 789). Further, “[a] motion for summary judgment is analogous to a motion for a directed verdict.
“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, 247 Ga. 767, 769 (281 SE2d 148). Of course, when a trial court considers whether a directed verdict should be granted, it is authorized to consider whether the deductions, i.e., inferences, demand a particular verdict. See
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, 369 U. S. 654, 655 (82 SC 993, 8 LE2d 176) (1962).” Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 860 (229 SE2d 765). Moreover, a nonmovant is only entitled to have reasonable inferences drawn in his favor. Lau‘s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474).
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.
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.”
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, 197 Ga. App. 173, 174 (397 SE2d 594) (inference cannot be based on mere conjecture or possibility).
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
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, 212 Ga. App. 570, 571 (443 SE2d 7).
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.
DECIDED SEPTEMBER 9, 1997.
Jones, Cork & Miller, Timothy Harden III, for appellant.
Sims, Fleming & Spurlin, Robert D. Bryan, for appellee.