Lead Opinion
Robin T. and Teresa L. Hartley appeal from the grant of summary judgment to Macon Bacon Tune, Inc. d/b/a Precision Tune in the Hartleys’ suit arising from an incident in which Robin T. Hartley slipped and fell in Precision Tune’s place of business. Teresa L. Hartley’s claim is for her loss of consortium.
The record also shows that it was raining and rain water was running off the cars brought in for repairs. It was obvious the shop floor was wet.
When Marsh and Hartley arrived at Precision Tune, the son-in-law waved them in and Marsh pulled his car in one of the mechanic’s bays to be checked out. Hartley, wearing flip flop sandals, got out of the passenger side of the car and started to walk around to the front when he alleges he stepped in some oil or something and fell. He testified that he later saw he fell in “a big puddle of oil” which looked like new oil; it was light colored.
Hartley also testified that if he had been looking down, he could have seen the oil, but he was looking at Marsh’s son-in-law. The oil did not blend into the floor; anyone looking down could have seen the oil, and there was nothing to prevent him from seeing the puddle.
After discovery, Precision Tune moved for and was granted summary judgment. The Hartleys then filed this appeal contending that the trial court erred by granting summary judgment because genuine issues of material fact remained for trial. Held:
1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins,
2. Our initial consideration is to determine the legal status that Hartley enjoyed while he was on Precision Tune’s premises. “The elements of legal liability of the owner or proprietor of premises for injuries occasioned to persons thereon[ ] vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, a visitor under invitation, express or implied, or a person standing in some special relation recognized by law. The owner or proprietor of premises is liable to a licensee only for wilful or wanton injury. As to
3. It has been asserted that once a licensee’s presence is known to a proprietor, a licensee is entitled to the same standard of care as an invitee in a premises liability case. Although this concept unfortunately has been misapplied in some earlier premises liability cases, recent Supreme Court cases establish that it is used properly only in cases involving a defendant’s active negligence. See Lipham v. Federated Dept. Stores,
Where an injury is caused by a condition on the property, “the act of the owner must be a wilful and wanton act in order for the injured party to recover. While, where the presence of the injured party on the owner’s premises is known or should have been anticipated, the duty owing to him, whether he be classified as a trespasser or licensee is to use ordinary care to avoid inflicting injuries on him, it is also usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be or may reasonably be expected to be, within range of a dangerous act being done or a hidden peril on one’s premises.” (Citation and punctuation omitted; emphasis in original and supplied.) Brooks v. Logan,
Moreover, it is not clear how this case is different from the cases in which an owner has intentionally placed a slippery substance on the floor, or all the numerous cases in which it is alleged that foreign substances have been dropped, spilled, or left on floors. If adopted, the result of the active negligence analysis would be to eliminate the entire existing body of law regulating premises liability cases.
4. Any effort to disregard Alterman Foods v. Ligon,
In the same manner, this Court cannot deem the guidance on foreign substance cases in Alterman Foods as mere dicta. Pretermitting whether this Court could ever reject guidance provided by the Supreme Court in cases of gravity and public importance on this basis (see Ga. Const. 1983, Art. VI, Sec. VI, Par. V; OCGA § 15-2-8) is the fact that Alterman Foods has been the seminal case in this area of the law for over 16 years. Thus, even if the foreign substance guidance could have been considered dicta originally, common sense and judicial stability dictate that it is too late for that now. Alterman Foods has been cited with approval, followed, and relied upon by this Court and our Supreme Court (see Martin v. Sears, Roebuck & Co.,
5. We also cannot otherwise avoid the guidance of our Supreme Court in Alterman Foods by attempting to redefine the term “foreign substances.” Oil on the floor of a garage or service station which was not intentionally applied to the floor by the proprietor or his employees is a foreign substance within the meaning of that term in Alterman Foods. “In the majority of the so-called ‘slip and fall’ cases the plaintiff alleges either that he slipped on a foreign substance — grit, vegetable leaves, trash, objects which have fallen from store shelves, etc. — on defendant’s floor, or that defendant’s floor has been made dangerously slippery by waxing, oiling, or otherwise treating it.” Id. at 622. Thus, because the Supreme Court included “objects which have fallen from store shelves, etc.,” as an example of foreign substances, any reliance on the concept that oil in a garage is an indigenous substance rather than a foreign substance is not well taken. This oil was a foreign substance within the meaning of Alterman Foods, supra.
Further, assuming that Hartley could be treated as a business invitee, to state a cause of action in this case he would be required to show (1) that Precision Tune had actual or constructive knowledge of the oil and (2) that he was without knowledge of the oil or for some reason attributable to Precision Tune was prevented from discovering the oil. Alterman Foods, supra at 623; Coffey v. Wal-Mart, supra at 826. Hartley’s evidence failed to show either. Instead, Hartley showed only that he fell at Precision Tune.
“Of course, merely showing that the plaintiff fell establishes nothing. Proof of nothing more than the occurrence of plaintiff’s fall is insufficient to establish defendant’s negligence. To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.” (Citations and punctuation omitted.) Coffey v. Wal-Mart, supra at 828. Therefore, even under these circumstances summary judgment for Precision Tune would be warranted.
6. This Court also cannot do away with the obligation of plaintiffs to make use of all their senses to discover and avoid those things that might hurt them. Alterman Foods, supra at 623. To say that the trial court could not infer that Hartley would not avoid an obvious danger relies upon the concept that if Hartley had bothered to look, had seen the oil he claims was on the floor, and had stepped in it anyway, he should still recover. Under this theory, one apparently must assume that someone facing an apparent danger would intentionally
7. Further, allowing Hartley to recover would mean ignoring Alterman Foods’ superior knowledge test. Pretermitting whether Precision Time had constructive or actual knowledge of the oil on the floor is whether Hartley should have known of the oil. “[N]ot only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citation and punctuation omitted.) Alterman Foods, supra at 623. Hartley’s excuse for failing to exercise ordinary care for his own safety is that he was looking at his friend’s son-in-law. That is not a distraction that our law recognizes. Coffey v. Wal-Mart Stores, supra at 829; Redding v. Sinclair Refining Co.,
8. Additionally, this Court must take into account the elements required to establish a cause of action in a foreign substance slip and fall case and not misconstrue the burden on defendant/movants necessary to prevail at summary judgment in these cases. Under Alterman Foods, and the legion of cases relying on that case, to establish his cause of action, Hartley had the burden of showing that Precision Tune had actual or constructive knowledge of the oil and that he was without knowledge of the oil or for some reason attributable to Precision Tune was prevented from discovering the oil. Alterman Foods, supra at 623. These elements are part of the plaintiffs’ cause of action, and, consequently, are not affirmative defenses.
Significantly, however, the Supreme Court has changed one important factor concerning these cases. In Alterman Foods the Supreme Court stated that the movant had the burden of establishing the nonexistence of any genuine issue of material fact. Id. at 625. After Lau’s Corp. v. Haskins, supra, however, this is no longer true. “[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving
Because Precision Tune discharged its burden under Lau’s Corp. by showing there was no evidence in the record to show that it had actual or constructive knowledge of the substance on the floor, Hartley could not rest on his pleadings, but was required to point to specific evidence giving rise to a triable issue on the superior knowledge issue. Lau’s Corp., supra at 491. As Hartley did not do so, the trial court did not err by granting summary judgment to Precision Tune.
Further, Hartley also had the burden of showing that the oil was on the floor for a length of time sufficient for knowledge of the oil to be imputed to Precision Tune before Precision Tune had any obligation to show its inspection and cleaning procedures. Cases holding that a proprietor must first show that a reasonable inspection and cleaning program was used before the plaintiff is required to show how long the substance was on the floor either were decided before Lau’s Corp. eliminated the burden on movants to establish the nonexistence of any genuine issue of material fact or disprove the plaintiff’s cause of action, or were decided after Lau’s Corp. but erroneously relied upon implicitly overruled authorities decided before the decision in Lau’s Corp.
Therefore, Precision Tune had no burden to show that it had an inspection procedure in place. As Hartley produced no evidence that Precision Tune had any knowledge, actual or constructive, that the oil was on the floor, he failed to cárry his burden on one of the essential elements of his claim (Moore v. Food Assoc.,
9. Because Ms. Hartley’s consortium claim is derivative of her husband’s claim, her claim must also fail.
Accordingly, the trial court did not err by granting summary judgment to Macon Bacon Tune, Inc. d/b/a Precision Tune.
Judgment affirmed.
Concurrence Opinion
concurring specially.
I concur specially, because I do not agree with everything that is said in the majority opinion. Its result is appropriate however under
Dissenting Opinion
dissenting.
While appellants’ case, if tried before a jury, would probably result in a defendant’s verdict, that is not the standard for a grant of summary judgment. Plaintiffs are constitutionally entitled to have their case decided by a jury rather than by the trial court and by this Court. Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a); OCGA § 9-11-56; Summer-Minter & Assoc. v. Giordano,
1. Many slip and fall cases, by the facts and circumstances of the case, are appropriate for summary adjudication, because the plaintiff lacks proof of the cause of the fall, or the owner/occupier lacks actual or constructive knowledge of the dangerous condition caused by the presence of a foreign substance. However, since Alterman Foods v. Ligon,
Further, this problem of analysis has been compounded by a misapplication of Lau’s Corp. v. Haskins,
Much of the majority’s analysis is based upon another misapplication of dicta; this time from Summer-Minter v. Giordano, supra at 604, which states, “It is thus seen that it is the duty of each party at the hearing on the motion for summary judgment to present his entire case in full [as a mini-trial].” However, the context of such statement was under OCGA § 9-11-56 (e), after the movant had carried its burden of proof and had successfully pierced the respondent’s pleadings on an essential element of the case. The respondent has no burden of proof unless and until the movant has first discharged its burden of proof and, then, only as to issues upon which the respondent would have the burden of proof at trial. Hodge v. SADA Enterprises,
In slip and fall cases, the majority would deem that proof of contributory negligence has been fully satisfied for summary judgment purposes with only the plaintiff’s failure to look where the step was made; the majority would not require the additional, factually supported elements of: (1) opportunity to avoid the danger, (2) appreciation of the danger, and (3) proximate cause, which elements must be proven by the movant defendant on summary judgment, as it must be proven by the defense at trial. Under tort law, if proof of such elements of contributory negligence is required, then the trial court, as well as this Court, has found the necessary elements on summary judgment in the case sub judice by making negative inferences against the plaintiff and in favor of the defendant from evidence of plaintiff’s failure to look, alone. Clearly, evidence of failure to look, alone, is insufficient to establish prima facie all the elements of contributory negligence.
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
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 by presenting evidence to support each element of the affirmative defense, the burden of production shifts to the plaintiff, who will survive summary judgment by presenting any evidence which creates a jury issue on an element of the affirmative defense. See Barentine v. Kroger Co.,
Clearly, a defendant has the burden of proof at trial of , the defenses of assumption of the risk or of contributory negligence. It follows that, on summary judgment, the defendant can satisfy such burden of proof only by producing evidence as to each such element of the defense, and even then, such burden of proof does not shift: after the defendant makes a prima facie showing, the burden of production shifts to the plaintiff, which is an entirely different issue, and which burden may be satisfied by favorable inferences from the evidence, as well as issues of weight and credibility.
2. I agree with the majority’s opinion that Hartley’s legal status
There is no distinction between the duty owed to an invitee and a licensee by an owner or occupier of land when the licensee’s presence is known to the owner/occupier of the premises and the owner/ occupier’s alleged negligence involves active negligence. Lipham v. Federated Dept. Stores,
3. The majority’s opinion urges that where the injury of which a plaintiff complains is caused by a condition of the premises that predates the plaintiff’s arrival on the premises, such acts could not support a claim of active negligence and cites Lipham, supra, and Trammell v. Baird,
Acts of an owner/occupier of the premises can create a dangerous condition on the premises. Such acts would constitute active negligence and do not become static just because the condition exists prior to the arrival of the invitee or licensee. Where the acts or omissions of the owner/occupier work positive injury to others, such acts or omissions áre active negligence in the classic sense. See Smith & Prosser, Cases & Materials on Torts, p. 320 (1). Where the owner/occupier of
In the case sub judice, Hartley testified that he slipped in new oil on the floor; new oil is not a “foreign” substance but is indigenous to a garage as part of the product, as well as waste by-product. Davidson and Moss testified that there was no oil on the floor, only rain water, which is a foreign substance brought into the premises. Neither Moss nor Davidson saw the substance on which Hartley slipped prior to his fall. The alleged presence of new oil on the repair bay floor is circumstantial evidence that the oil got there by the acts or omissions of appellee’s employees as active negligence, because only they had possession and control over the area and the new oil. See Foster v. Jones,
In the case sub judice, appellee does not present any evidence to contradict the reasonable inference that the presence of the new oil was caused by appellee’s employees. Instead, appellee presents evidence to dispute the presence of new oil; that, instead of new oil, the substance was merely rain water that had been tracked inside or had dripped off the car. This causes a material issue of fact for jury determination, i.e., was it new oil on the floor or was it merely a foreign substance, rain water? If the cause of the slip and fall was, in fact, a foreign substance, rain water, then appellant would be barred from recovery on the basis of equal knowledge with the owner/occupier. See Colbert v. Piggly Wiggly Southern,
Alterman Foods, supra at 623, is distinguishable on the law and facts from the case sub judice. In the case sub judice, there exists a factual issue as to active negligence, i.e., new oil on the floor, which is an indigenous substance under the appellee’s control; in Alterman Foods, the alleged negligence was passive negligence in failing to discover and warn that the floor was slick or had been made slick by tracking rain water, a foreign substance, on the floor. In Alterman Foods, the holding was that the plaintiff did not know the cause of
To recover, a plaintiff must show that he or she was without knowledge of the presence of the dangerous condition. See Sears, Roebuck & Co. v. Reid,
“The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him. McGrew v. S. S. Kresge Co.,
“However, a store patron is not bound to the same degree of care in discovering or apprehending danger in moments of stress or
Alterman Foods, with its two-pronged test, set forth what a plaintiff must prove at trial to prevail before a jury, assuming that the defendant presents evidence to prove a prima facie defense of contributory negligence. Neither Alterman Foods, nor Lau’s Corp., changed contributory negligence or assumption of the risk from affirmative defenses that the defendant had the burden of proving at trial into an essential element of plaintiff’s case. Further, Alterman Foods did not establish with its two-prong test a general new standard for all types of slip and fall cases on summary judgment. If on motion for summary judgment, the defendant attempts to prove an affirmative defense and demonstrates that the plaintiff failed to look and to see a danger that was open and obvious, then the defendant must go further and show that the plaintiff not only had the time, but also the opportunity, to avoid the danger in order to establish as a matter of law the bar of contributory negligence. To show that plaintiff should have seen the danger in the exercise of ordinary care raises merely the negative inference against the plaintiff that the plaintiff could have avoided the danger if the plaintiff had looked. While a jury may draw such negative inferences at trial, the trial court is not permitted to draw such negative inference against the plaintiff-respondent on motion for summary judgment. Under such circumstances, defendant has failed to carry the burden of proof of its affirmative defense and is not entitled to summary judgment unless it is able to pierce the allegations of plaintiff’s complaint. See Lau’s Corp., supra at 491.
4. In this case, there are also other material issues of fact which exist for jury determination. Hartley knew he was entering an area where vehicles were serviced and maintained. Hartley admitted it was raining on the day in question. The question of whether or not Hartley was exercising ordinary care for his own safety when he exited the vehicle in the bay area, where there was a likelihood that oil or other fluids used in maintaining and repairing vehicles might be on the floor, is a question for the jury, especially under the circumstances here, where rain water from the cars could mix with sub
Notes
Favorable inferences may be drawn on behalf of the non-moving party, since the granting of summary judgment deprives the non-moving party of his right to trial by jury contrary to the Constitution of the State of Georgia and the United States; “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 Cos.,
All the plaintiff must do is create a disputed issue of material fact as to the affirmative defense. There is no duty to present evidence disproving the affirmative defense. See Hodge v. SADA Enterprises, supra at 691.
See, e.g., Blake v. Kroger Co.,