123 Ga. App. 591 | Ga. Ct. App. | 1971
Lead Opinion
In this action for personal injury resulting from a fall, plaintiff, a customer at defendant’s grocery store, alleges that she fell from slipping on a candy wrapper which was either picked up by her shoe from the store floor as she passed over it, or which was lying on the "sidewalk” just outside the store — her fall having occurred there — defendant’s motion for summary judgment was granted.
The evidence submitted by movant falls short of demonstrating that plaintiff can in no event recover, for that it does not appear whether the "sidewalk” was a public one (as to which see Ellis v. Southern Grocery Stores, 46 Ga. App. 254 (167 SE 324); Rhodes v. Perlis, 83 Ga. App. 312 (63 SE2d 457); Crowe v. Mason, 86 Ga. App. 832 (2) (72 SE2d 787); City of Decatur v. Robertson, 85 Ga. App. 747, 754 (70 SE2d 135), and Reed u. Batson-Cook Co., 122 Ga. App. 803 (178 SE2d 728)), or a part of defendant’s premises. Cf. Willis v. Byrd, 116 Ga. App. 555 (158 SE2d 458). It is true that a sidewalk has been defined in Hancock v. Rush, 181 Ga. 587, 600 (183 SE 554) as being "that part of a public street or highway designed for the use of pedestrians,” but that case dealt with the matter in deciding whether a city was authorized to pave sidewalks, along with the street itself, using funds derived from street improvement
Another question of fact which may very well be of significance is whether defendant, or its agents in charge, had or should have had knowledge of the presence of the candy wrapper — wherever it was, if on defendant’s premises — and whether ordinary care would have required them to have removed it before plaintiff became involved with it.
These matters were not resolved on the proceeding for summary judgment, and are jury issues.
Judgment reversed.
Concurrence Opinion
concurring specially. This is an appeal from
the granting of defendant’s motion for summary judgment in an action filed by a customer seeking to recover for injuries sustained in a fall as she was exiting from defendant’s supermarket. The pleadings and plaintiff’s deposition taken by the defendant constitute the record in support of the motion. The complaint alleged that as plaintiff was walking out of the store following closely behind defendant’s employee who was pushing a cart containing her groceries, she stepped on a slippery candy wrapper which caused her to slip and fall; that the employee and the cart completely obscured her lower forward vision, hiding the candy wrapper from her view; that defendant knew of the presence of the candy wrapper in the doorway, and knew that it was directly in her pathway as she was making her exit.
In her deposition plaintiff testified, inter alia, that she wasn’t
I concur in the result reached in the judgment of reversal of the grant of summary judgment to the defendant supermarket, but I cannot concur with what is said in the opinion to the effect that a jury question exists as to whether the injury occurred on the premises of the defendant. There are no allegations in the petition that the candy wrapper was lying on the sidewalk. Plaintiff does, in the deposition, refer to the area just outside the door as a walkway and in one instance as a sidewalk. The evidence adduced on the defendant’s motion raised no such issue or contention as to whether the area was public rather than private and a part of defendant’s premises, and the defendant in its brief and argument in this court clearly eliminated any such issue when it stated: "Appellee [defendant] agrees that appellant [plaintiff] was an invitee in its store at any time she entered it for the purchase of groceries. This status would continue to the point at which appellant alleges she was injured.” What controls the result in this case is the following ruling: "On motion for summary judgment by a defendant on the ground that plaintiff has no valid claim, the defendant, as the moving party, has the burden of producing ■ evidence, of the necessary certitude, which negatives the opposing party’s (plaintiff’s) claim. This is true because the burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned; and rests on him whether he is by it required to show the existence or nonexistence of facts.” 6 Moore’s Federal Practice, par. 56.15[3], pp. 2342-2343 (2d Ed. 1966). Accord: Colonial Stores, Inc. v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672); Lanier v. Krzywicki, 118
The defendant in its motion for summary judgment "in order to pierce the pleadings” must affirmatively prove (1) the paper wrapper did not get on plaintiff’s foot in its store, and if it did, (2) it had no actual notice it was there and (3) the wrapper was not on the floor a sufficient length of time to give notice to the defendant. While plaintiff’s testimony may not prove the paper wrapper did get on plaintiff’s foot in the store and may not prove it was there a sufficient length of time to give notice, neither does it prove the paper wrapper was not in the store or that the paper wrapper was not there a sufficient length of time to give notice; which latter proof is necessary in order for the defendant to disprove some essential element of the plaintiff’s case.
