Lead Opinion
J. H. Hаrvey Company (“Harvey”) appeals from the trial court’s denial of its motion for summary judgment in this slip-and-fall premises liability case. Harvey also appeals the trial court’s denial of its motion to strike and objections to plaintiff Carolyn Reddick’s deposition errata sheet. For reasons that follow, we affirm.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
Lau’s Corp. v. Haskins,
the “routinе” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.
Robinson v. Kroger Co.,
Viewed in the light most favorable to Reddick, the evidence shows as follows. At approximately 5:55 p.m. on September 5, 1996, Reddick slipped and fell while shopping in a Harvey grocery store in Americus. Reddick was walking down an aisle displaying bread on one side and frozen foods on the other when her right foot slipped on “something slippery,” causing her to fall forward onto her knees. As she was getting up, Reddick saw two scuppernongs
After Reddick got up, she reported the incident to the store’s assistant manager, Bruce Jones. Reddick and Jones returned to the aisle where Reddiсk had fallen, and Jones saw two scuppernong skins on the floor. According to Jones, scuppernongs are generally located in the produce department, several aisles away, and one would not expect to find them in the aisle where Reddick fell. After examining the area, Jones completed an accident report in which he stated that “[a]n unknown customer was apparently eating scuppernongs and threw the outer skin on the floor. (2 scuppernongs). [Red-dick] walked around the corner next to the bread and said she slipped and fell on her knees.” During his deposition, Jones explained that in the past, customers at the store had eaten scuppernongs and thrown them on the flоor. A former Harvey employee, Reginald Adams, testified by affidavit that the Americus store “had problems with items on the floor. These problems included customers eating items in the store and then throwing the items on the floor.”
Harvey filed a motion for summary judgment, and the trial court denied it. We then granted Harvey’s application for interlocutory appeal.
To prove negligence in a foreign substance slip-and-fall case, the plaintiff must show “(1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” (Punctuation omitted.) Robinson, supra at 736. Harvey maintains that it is entitled to summary judgment on several grounds, each of which we reject.
(a) First, Harvey argues that Reddick failed to present any evidence that her fall was caused by the scuppernongs on the floor of the store. To survive summary judgment, a slip-and-fall plaintiff “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.” (Punctuation omitted.)
In Hall, the plaintiff slipped and fell on wood flooring which she described as “slippery.” Id. at 88. Although she alleged that the floor was excessively waxy, the plaintiff failed to present any evidence of a foreign substance on the floor which could have created a slippery condition. Likewise, the plaintiff failed to show that the defendant improperly cleaned or maintained the floors. We concluded that the plaintiff’s bare assertion that the floor was “slippery,” without more, was insufficient to create an issue of fact as to whether the fall was caused by the defendant’s negligence. Id. at 93. We noted that “proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.” (Punctuation omitted.) Id. at 90.
In this case, by contrast, Reddick has presented evidence of a foreign substance — two scuppernongs on the floor in the area where she fell — that could have created the slippery condition she alleged. We are required on a motion for summary judgment to view the facts and inferences in a light most favorable to Reddick. See Lau’s Corp., supra. Although Reddick could not positively state that the scuppernongs caused her to fall, reasonable jurors could make such an inference based on the proximity of the fruit to Reddick after the fall, the alleged “slipper/’ condition of the floor, and the assistant manager’s statement after Reddick’s fall that he saw scuppernong skins, rather than whole fruit. See Williams v. EMRO Marketing Co.,
(b) Second, Harvey contends that Reddick failed to prove that it had actual or constructive knowledge of the presence of the scuppernongs on the floor. Reddick argues that Harvey had both actual and constructive knowledge of the hazard. We find no evidence of actual knowledge, but agree with Reddick that there are factual disputes concerning Harve/s constructive knowledge.
Reddick’s actual knowledge argument is based on (1) Jones’ deposition testimоny that customers previously had eaten scuppernongs and thrown them on the floor and (2) the affidavit of former Harve/s employee Reginald Adams that the store had a problem with customers throwing food on the floor. To establish actual knowledge, however, Reddick must do more than merely show that Harvey’s employees had a general knowledge that a hazardous condition might exist. See J. H. Harvey Co. v. Johnson,
Reddick also maintains that Harvey had constructive knowledge of the hazard. Constructive knowledge can be proven by showing either (1) “that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance” or (2) “that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery.”
Harvey presented evidence that, at the time of Reddick’s fall, the Americus store had an inspection policy requiring that the floor be swept and spot mopped at least every two hours, or more often as needed. The sweeping included spot mopping to remove foreign substances from the floor. Employees were required tо punch in and out on a “sweep card” when beginning and ending the sweep and to initial the card upon completion. Harvey also submitted the affidavit of employee Brad Satterfield, who averred that on the day Reddick fell he swept the entire floor area of the store from 3:25 p.m. until 4:14 p.m., and again from 5:17 p.m. until 6:01 p.m., as indicated on the relevant sweep card. Satterfield testified that he swept the aisle where Reddick fell approximately one hour and forty-two minutes before her fall and found no trash, debris, or liquid in the area. Finally, Harvey submitted the sweep card for the week of Reddick’s fall, which bears Satterfield’s initials beside two punched entries on the day in question recording time “in a type of military time with minutes rеflected in hundredths of an hour.” In the absence of any evidence to the contrary, the sweep card, coupled with the testimony of Jones and Satterfield, establishes that the area where Reddick fell was swept one hour and forty-two minutes prior to her fall, and that no foreign substance was found.
We cannot conclude as a matter of law, however, that Harvey’s inspection procedure was reasonable under the circumstances. The length of time that a foreign substance must remain on the floor before a proprietor should have discovered it — and, by extension, what constitutes a reasonable frequency of inspections — “will vary with the circumstances of each case (the nаture of the business, size of the store, the number of customers, the nature of the dangerous condition and the store’s location).” (Punctuation omitted.) Kelley v. Piggly Wiggly Southern,
(c) Harvey also sought summary judgment on the ground that Reddick failed to exercise ordinary care for her own safety. Reddick testified that she did not look down at the floor before she fell. She also testified that the fruit on which she allegedly slipped was large and could have been as big in diameter as a soda can. Harvey argues that this evidence establishes that had she been exercising ordinary care for her own safety, Reddick would have noticed the fruit before she fell. However, this, too, is a jury question.
In Robinson, the Supreme Court rejected the argument that “an invitee fails to exercise ordinary care for personal safety as a matter of law when the invitee admits she failed to look at the location where she subsequently placed her foot.” Id. at 743. An invitee is not required to maintain a constant lookout, but “is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.” Id. Accordingly, Reddick’s failure to look before she stepped does not establish negligence on her part as a matter of law. Additionally, contrary to Harvey’s assertions, the evidence does not establish conclusively that Reddick would have noticed the fruit had she glanced down. The size of the scuppernongs is a matter of dispute, as Jones testified that they were approximately the size of a quarter. Moreover, the evidence showed that the color of the floor could have camouflaged the scuppernongs. Under these circumstances, Harvey is not entitled to summary judgment on this issue. See Kroger Co. v. Brooks,
2. In its second enumeration of error, Harvey contends that the trial court erred in denying its motion to strike and objections to Red-dick’s substantive changes to her deposition. We find no error.
After giving her deposition, Reddick submitted an errata sheet listing 16 changes to answers in her deposition transcript. Most of the changes substantively altered her testimony as previously recorded on material issues in the case, but did not clearly contradict it. For example, Harvey’s attorney asked Reddick during her deposition about the size of the fruit on which she allegedly slipped, as follows: “Q. We have got a 7-Up can on the table. Were they the size of that 7-Up can, that big around? A. Yes, they were. If I can remember, as far as my knowledge, when I was getting up, they was large red plums.” On her errata sheet, Reddick changed her answer to “[t]hey were regular size plums” and gave as the reason for the change, “I did not understand the question.” This change is consistent with her answer to a previous question that the plums were “regular” in size. As another example, Reddick replied, “I don’t knоw,” when asked in her deposition whether she had reached a conclusion about what caused her to fall, but in her errata sheet she changed this answer to “[sjomething slippery on the floor,” citing confusion about the question as the reason for the change. The new answer on the errata sheet is consistent with other testimony in Reddick’s deposition in which she attributed her fall to a “slippery” substance on the floor. Harvey filed a motion to strike and objections to the errata sheet, arguing that Reddick could not substantively change her deposition testimony
OCGA § 9-11-30 (e) provides as follows:
If requested by the deponent or a party beforе completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate . . . whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.
(Emphasis supplied.) Although our Georgia courts have not directly addressed the question of whether a witness may make substantive, material changes to his deposition,
There are several important safeguards which curtail abuse on the part of the deponent. First, the deponent’s original answers remain part of the record and can be read at trial to impeach the witness or for further clarification. Scarbrough v. Dover Elevator Co.,
Despite the plain language of OCGA § 9-11-30 (e), Harvey argues that a witness’ ability to change his deposition is limited by OCGA § 9-11-32 (d) (3) (B), which provides that
[e]rrors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, . . . and errors of any kind which might be obviated, removed, or cured if promptly presented are waived unless seasonable objection thereto is made at the taking of the deposition.
According to Harvey, Reddick’s failure to understand the questions posed to her constituted an error or irregularity that could have been corrected during the deposition and was therefore waived. We disagree. First, we
Applying these principles to the instant case, we find that Red-dick was entitled to make the changes to her deposition testimony. She reserved her right to read and sign her deposition transcript, apparently submitted her errata sheet in a timely manner, and provided explanations for the changes. See OCGA § 9-11-30 (e). Although her changes substantively alter her original deposition testimony, they do not clearly contradict it and therefore do not require application of the Prophecy rule described above.
Judgment affirmed.
Notes
During hеr deposition, Reddick referred to the fruits she saw as plums, but in a subsequent affidavit, Reddick stated that she has since learned that they are called scuppernongs, which are large grapes. See Webster’s New Intl. Dictionary (2nd ed.), p. 2252.
Reddick contends that the sweep card is inadmissible hearsay that does not meet the requirements of the business records exception. We disagree. Jones testified that the sweep card for the week ending September 7,1996, was kept in the ordinary course of business and included all entries for the day of Reddick’s fall. Satterfield testified that he personally swept the floor twice that day, as reflected by the entries on the sweep card initialed by him. This evidence satisfies the foundational requirements of OCGA § 24-3-14 (b). See Mealor v. State,
For purposes of ruling on Reddick’s motion for summary judgment, we have considered only the original deposition transcript and not the errata sheet. Nevertheless, we address this issue in the event that the parties seek to make use of Reddick’s deposition on remand.
In Young v. YMCA of Metro. Atlanta,
Because Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority. Ambler v. Archer,
In any event, Harvey does not seek to apply the Prophecy rule here, but only challenges Reddick’s right to make substantive changes to her deposition.
Dissenting Opinion
dissenting.
J. H. Harvey Company (Harvey) was entitled to summary judgment because there is an absence of evidence to support Reddick’s claim that Harvey had actual or constructive knowledge of the hazard.
In order for Reddick to prevail on her claim against Harvey, she was required to prove that Harvеy had actual or constructive knowledge of the hazard which she claims caused her slip and fall. Robinson v. Kroger Co.,
On these facts it is a matter of pure speculation as to whether the hazard may have been placed on the floor a minute or two before Reddick slipped on it, or whether it may have been placed on the floor shortly after Harvey inspected and swept the area some one hour and forty-two minutes prior to Reddick’s slip and fall. Clearly, if the hazard
To sustain plaintiff’s cause of action in the failure to inspect case it is necessary that she prove a period of time the dangerous condition has been allowed to exist. Without such proof, it would not be possible to determine whether the defendant had been аfforded a reasonable time within which to inspect and remove the hazard. Banks v. Colonial Stores,117 Ga. App. 581 (161 SE2d 366 ) (1968). Winn-Dixie Stores, Inc. v. Hardy, [138 Ga. App. 342 , 345 (226 SE2d 142 ) (1976)].
(Punctuation omitted.) Kroger Co. v. Brooks,
[Although] the proprietor may be liable if he fails to exercise reasonable care in inspecting and keeping the premises in safe condition!,] [t]o sustain a cause of action in [this] type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case[,] the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition and the store’s location.
(Citations and punctuation omitted.) Alterman Foods,
It follows that, if there is no evidence as to how long the hazard had been on the floor before Reddick slipped and fell on it, neither a judge nor a jury as the trier of fact could conclude, without speculating, that the hazard had been there long enough so that it should have been discovered by Harvey had reasonable inspections been performed. It also follows that, if the hazard had not been on the floor long enough to have been discovered by a reasonable inspection, then any failure by Harvey to conduct a reasonable inspection was not the cause of Reddick’s slip and fall. Rather, if the hazard had been on the floor, for example, only a minute or two before Rеddick slipped and fell on it, the sole cause of the slip and fall was the negligence of the unknown party who placed the hazard on the floor. In the absence of any evidence as to how long the hazard had been on the floor before Reddick slipped and fell, the trier of fact would be left to speculate as to how long it had been there and whose negligence caused the slip and fall.
A verdict finding that a defendant’s negligence caused the plaintiff’s injury cannot be sustained on the basis of speculation or conjecture.
On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
(Citations and punctuation omitted.) Nelson v. Polk County Historical Society,
One would logically assume that any case whose evidentiary posture would entitle the defendant to a directed verdict at trial would also entitle the defendant to pre-trial summary judgment so as to avoid the expense of an unwinnable trial. This was the clear message sent by our Supreme Court when in Lau’s Corp. v. Haskins,
A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleádings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).
Id. Although Harvey had the burden on its motion for summary judgment of showing that there is no material issue of fact, Harvey’s defense that it lacked constructive knowledge of the hazard is not an affirmative defense, and the evidentiary burden at trial on this issue rests with Reddick. Sharfuddin v. Drug Emporium,
Nevertheless, the majority opinion, and the recent decision of this Court upon which it relies, requires Harvey to do precisely what Lau’s Corp. says it is not required to do. Citing this Court’s opinion in Straughter v. J. H. Harvey Co.,
The 1991 Supreme Court decision in Lau’s Corp., which specifically overruled anything to the contrary, held that a defendant moving for summary judgment, which does not have the burden of proof at trial, has no burden to produce evidence in order to disprove the plaintiff’s case or to shift the evidentiary burden back to the plaintiff. Id. at 491. Accordingly, Lau’s Corp. specifically overruled the contrary holdings in Cooke and Ramey upon which Straughter and the majority opinion rely. See Straughter,
Without evidence as to whether the hazard had been on the floor for as little as a minute or for as long as one hour and forty-two minutes, there is no basis for a reasonable trier of fact to conclude, without engaging in pure speculation or conjecture, that it had been there long enough to have been discovered by a reasonable inspection. Harvey would therefore be entitled to a directed verdict at trial, because it would be impossible for a trier of fact to conclude that a negligent failure by Harvey to conduct a reasonable inspection caused Red-diсk’s slip and fall. Alterman Foods,
In continuing to dissent to the decisions of this Court on the above issue, I am aware that the principle of stare decisis ordinarily compels a judge of this Court to follow the decisions issued by this Court. Since it is my opinion, however, that the decisions to which I continuе to dissent clearly conflict with the Supreme Court’s decision in Lau’s Corp.,
For these reasons, I respectfully dissent.