Adams v. Sears, Roebuck & Co.

490 S.E.2d 150, 227 Ga. App. 695, 97 Fulton County D. Rep. 2757, 1997 Ga. App. LEXIS 929

• Court: Court of Appeals of Georgia
• Decided: July 16, 1997
• Docket: A97A0740
• Status: Published

Opinions

Birdsong, Presiding Judge.

Celia Faye Adams appeals the grant of summary judgment to Sears, Roebuck & Company and the manager of a Sears’ store, Leon Washington. Adams sought damages from Sears and Washington for injuries she allegedly received in a slip and fall in a Sears’ store that Washington managed.'

Adams’ verified complaint alleged that while she was walking in the store and looking at the merchandise, she stepped on a store hanger, lost her balance, and fell to the floor injuring her knee, and the complaint further alleged that the defendants failed to inspect and maintain the store where she fell. After Sears and Washington filed verified answers denying liability, they moved for summary judgment contending that Washington was not liable because he neither owned nor occupied the store, that Sears was not liable because it had no knowledge, either actual or constructive, that the hanger was on the floor, and that Sears was not liable because Adams failed to exercise ordinary care for her own safety.

In support of the motion, Sears and Washington relied upon an affidavit from Washington stating that he was the general manager of this Sears’ store, but he did not have an ownership interest in it, and also an affidavit from another Sears’ employee. The employee’s affidavit stated that she was working the day of Adams’ fall, that her regular duties consisted of constantly straightening the sales floor and this duty includes picking up objects and clothing from the floor and constantly monitoring the sales floor. The affidavit stated that she did not see Adams fall, but she heard a noise, and when she rushed over, she saw Adams had fallen. The employee’s affidavit further stated that the employee was in the area where Adams fell 15 to 20 minutes before she fell and the employee did not see any objects, including a hanger or clothing, on the floor.

Adams’ response to the motion for summary judgment asserted that genuine issues of material fact remained for trial. The response was supported by affidavits from Adams and a friend who was shopping with her that day. Adams’ affidavit stated as she stood near a dress rack, she stepped on a plastic hanger that was on the floor. At the time she stepped on the hanger, she was looking at the dresses on the rack, and she did not see the hanger which caused her fall until after she fell. The affidavit from Adams’ friend stated that while she was shopping with Adams, she saw Adams lose her balance and fall and that after Adams fell, she saw a hanger on the floor near Adams’ feet. Nothing in the evidence submitted by Adams, however, showed or allowed any inference of how long the hanger may have been on the floor before Adams fell.

Although raised in the motion for summary judgment, the trial court pretermitted the issue of actual or constructive knowledge of the hanger on the floor and granted summary judgment to Sears because the evidence did not create a jury issue on whether Adams exercised ordinary care for her own safety. The trial court also granted summary judgment to Washington because he was not an owner or occupier of the premises.

This appeal followed. Adams contends the trial court erred by granting summary judgment because genuine issues of material fact existed on whether she exercised due care before she fell, whether Sears failed to exercise ordinary care for Adams’ safety, and whether Washington is liable to Adams for her injuries. Held:

1. When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432); Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535). Further, the standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). On motions for summary judgment, the court cannot resolve the facts or reconcile the issues (Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49)), but it is only where the contradictions by witnesses are to matters relevant and material to the issues that it is error to grant a motion for summary judgment. Raven v. Dodd’s Auto Sales & Svc., 117 Ga. App. 416, 422 (160 SE2d 633). Further, it is the duty of each party at summary judgment to present her case in full or risk judgment going against her (Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173)), and on appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746).

2. Adams’ contention that Washington, the store manager, is personally liable for her injuries is without merit. Regardless of whether Sears might be liable in this case, because Washington was neither an “owner nor occupier” of the Sears’ store, he cannot be held liable under OCGA § 51-3-1, as a matter of law, and Adams has asserted no other basis for imposing personal liability upon him.

3. The standards which must be met to establish liability on the part of a proprietor in slip and fall cases are set forth in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 826 (482 SE2d 720). “[T]o state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [she] slipped and fell on a foreign substance on the defendant’s floor, 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.” Alterman Foods, supra at 623.

“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 (2).

In this case, Adams’ proof amounts to nothing more than she slipped and fell on the hanger while shopping at Sears. This is not sufficient to satisfy either prong of the test established in Alterman Foods. There is no evidence showing, nor any evidence from which it can be inferred, that Sears had actual or constructive knowledge of the hanger. Therefore, summary judgment could have been properly granted on the first prong of Alterman Foods.

Also, no evidence shows that for any reason attributable to Sears Adams was prevented from knowing of the hanger. Her only excuse for not seeing the hanger is that she was distracted by looking at the dresses. As the trial court correctly pointed out, this is not a valid reason. Harper v. Kroger Co., 212 Ga. App. 570, 571 (443 SE2d 7), citing Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378-379 (124 SE2d 688). Moreover, even if there were some question about the propriety of granting summary judgment on this second prong of the Alterman Foods standards, there is no evidence showing that Sears had actual or constructive knowledge that the hanger was on the floor, and consequently the grant of summary judgment could be affirmed properly on that ground. Malaga Mgmt. Co. v. John Deere Co., supra. Adams simply failed to satisfy her obligations as a respondent to a motion for summary judgment under Lau’s Corp. v. Haskins, supra. Accordingly, the trial court did not err by granting summary judgment to Sears.

4. Although the dissent seeks to avoid the reach of Alterman Foods v. Ligon, this cannot be done. “The Supreme Court of Georgia has not rejected or revised Alterman Foods. Therefore, the Alterman Foods standards are binding on this Court even though some may believe there is a better concept for allocating the burdens on the parties in these cases. ‘The decisions of the Supreme Court shall bind all other courts as precedents.’ Ga. Const. 1983, Art. VI, Sec. VI, Par. VI; Coffey v. Wal-Mart, [supra at 827].” Hartley v. Macon Bacon Tune, 227 Ga. App. 679, 682 (4) (490 SE2d 403) (1997).

5. Further, the dissent’s attempt to deem the guidance on foreign substance cases in Alterman Foods v. Ligon as mere dicta has recently been rejected by this Court. Hartley v. Macon Bacon Tune, supra. Consequently, the principles established in Alterman Foods v. Ligon cannot be swept aside, and Alterman Foods v. Ligon remains the controlling precedent in the area of slip and fall cases. Hartley v. Macon Bacon Tune, supra.

6. In the same manner, the effort to limit Alterman Foods v. Ligon by establishing new categories of foreign substance slip and fall cases and then redefining what must be established to prove a cause of action in each of them must also fail. Hartley v. Macon Bacon Tune, supra. The classifications the dissent proposes all fall within the categories considered 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 failed to list every conceivable foreign substance which could possibly find its way to a floor does not mean that it intended for new standards of proof to be established for other substances that, while not listed, are plainly substances which were not placed on the floor intentionally by the proprietor and, consequently, are foreign substances within the meaning of Alterman Foods v. Ligon. See Hartley v. Macon Bacon Tune, supra.

7. Further, review of the standards proposed by the dissent shows that their effect would require proprietors to patrol constantly their premises and would, in effect, make them insurers of their customers’ safety, regardless of how well the premises were maintained. That is not the law in this state. Alterman Foods v. Ligon, supra at 624;Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641); Key v. J. C. Penney Co., 165 Ga. App. 176 (299 SE2d 895).

8. “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 [Adams] would not avoid an obvious danger relies upon the concept that if [Adams] had bothered to look, had seen the [hanger she] claims was on the floor, and had stepped [on] it anyway, [she] should still recover. Under this theory, one apparently must assume that someone facing an apparent danger would intentionally disregard it and that a proprietor must somehow take action to protect these customers from themselves. This is not our law, and it is contrary to human nature as well as Alterman Foods and the doctrine of assumption of the risk.” Hartley v. Macon Bacon Tune, supra at 683-684. The dissent’s concept (which is not supported by citation of authority) that a movant for summary judgment is never entitled to the benefit of an inference is contrary to our law. Id. Although it is true that the party responding to the motion must be given the benefit of all reasonable doubts and the construction of the evidence and all inferences and conclusions therefrom (Lau’s Corp., supra; Moore v. Goldome Credit Corp., supra), this does not mean that a movant for summary judgment is never entitled to receive the benefit of an inference. Moreover, if this were true, a grant of summary judgment could never be based upon circumstantial evidence, and such a concept is surely contrary to the statement in Lau’s Corp. that “summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp., supra at 495 (4). Although the non-moving party is entitled to the benefit of all reasonable inferences to be drawn from the facts, sometimes the only permissible inference is contrary to the interests of the nonmoving party, and in such cases summary judgment for the movant may be authorized.

9. Moreover, the dissent’s discussion about the burdens on the parties was recently rejected by this Court in Hartley v. Macon Bacon Tune, supra. In that appeal as well as this one, the dissent has confused the burden on the plaintiff in a foreign substance slip and fall case under Alterman Foods with the affirmative defenses of contributory or comparative negligence or assumption of the risk. They are not the same thing. Id. Therefore, requiring that plaintiffs carry their burden on these elements is not the same as requiring them to disprove affirmative defenses.

Accordingly, the trial court did not err by granting summary judgment to Sears, Roebuck & Company and Leon Washington in this case.

Judgment affirmed.

Andrews, C. J., Johnson and Smith, JJ., concur. Ruffin, J., concurs and concurs specially. Pope, P. J., Beasley and Blackburn, JJ., concur specially. Eldridge, J, dissents. McMurray, P. J., dissents without opinion.