SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 13, 2014
In the Court of Appeals of Georgia A13A1698. HAYES v. SNS PARTNERSHIP, LP et al.
MILLER, Judge.
Bobbie Ann Hayes injured her knee while entering a Steak N Shake restaurant
when the door closed on her shoe, causing her to fall. Hayes sued SNS Partnership,
LP, the owner of the premises, and Steak N Shake Operations, Inc., operator of the
restaurant. Hayes contends that the trial court erred in granting summary judgment
to the defendants and in an evidentiary ruling. .
On appeal from a grant or denial of summary judgment, we conduct a de novo
review of the law and evidence. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d
541) (1998). In applying the standard of review on a motion for summary judgment,
this Court views the evidence in the light most favorable to the nonmovant to determine whether a genuine issue of material fact exists and whether the moving
party is entitled to judgment as a matter of law. Id. A defendant may prevail on
summary judgment “by showing the court that the documents, affidavits, depositions
and other evidence in the record reveal that there is no evidence sufficient to create
a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v.
Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
So viewed, the evidence shows that Hayes had been to this Steak N Shake on
two or three occasions before her fall, although she had not opened the door for
herself on those visits. On April 6, 2010, Hayes went to the restaurant by herself and
opened the door, and I stepped in. And immediately, the door, like, started pushing me. And it was pushing me really hard, and I was trying to keep from falling down. And the door had caught my shoe, and the shoe was hung in it. But I didn’t realize that the shoe was hung in it because I was just . . . trying to keep from falling down because . . . it was, like, pushing me, . . . , and I’m trying to get my balance. And so I go to take a step, you know, to get on out of the way, and my shoe was hung under the door, so that made me fall real hard.
Hayes suffered a fractured knee cap as a result of her fall. The shoe Hayes was
wearing was a hard soled open-backed sandal with no heel strap. Following her fall,
a Steak N Shake employee removed her sandal from under the door.
2 Justin Rozar, the operations supervisor that evening, was in the office when an
employee advised him a woman had fallen. Rozar went to the foyer,1 where he found
Hayes on the floor. Rozar and the other employee helped Hayes into a chair and
Hayes’s daughter came and took her to the hospital. Hayes told Rozar she opened the
door and the door closed on her sandal, catching her heel and causing her to fall.
Following Hayes’s fall, Rozar opened and closed the door, which he used
everyday coming to work, and found that it operated as it always had. Rozar said no
one had complained about the door prior to Hayes’s fall.
Kenneth Smith, general manager at this Steak N Shake, was not on site that day
but, following his notification of the fall, he also inspected the door and noted
nothing out of the ordinary. As he observed, the door is a self-closing door and “when
you open it, if someone’s not holding it, it’s going to close itself.”
Hayes deposed Collin Braynard, who became the district manager for Steak N
Shake in July 2010, following Hayes’s fall. Braynard explained the policy regarding
maintenance and upkeep of the buildings. Managers are to conduct a daily walk-
around looking for cleanliness and repair issues. The district manager also conducts
1 Two exterior doors opened into the foyer and then a second door was opened into the interior of the restaurant.
3 a quarterly inspection, looking at every detail of the restaurant, which can take up to
six hours. The proper closing time for the doors, seven seconds, would be checked
on these quarterly inspections.
1. In her first enumeration, Hayes contends that the trial court erred in denying
her motion to strike the sworn statements of Justin Rozar and Kenneth Smith. We
address this issue first in order to determine if these statements were properly
considered by the trial court in ruling on the motion for summary judgment.
Counsel for appellees questioned Rozar and Smith in the presence of a certified
court reporter who gave the oath to the two witnesses and took down their testimony.2
Hayes argues that, because the two statements do not qualify as “affidavits” under
OCGA § 9-11-56 (e), they should have been stricken.
This Court reviews the denial of a motion to strike an affidavit for abuse of
discretion. Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 102-103 (1) (a)
(734 SE2d 883) (2012). We will use this same standard in reviewing the denial of a
motion to strike sworn statements.
While Hayes is correct that the two sworn statements do not qualify as
affidavits under OCGA § 9-11-56 (e), that does not end our consideration of whether
2 The content of their testimony is contained in Division 2.
4 they should have been stricken from the record for purposes of considering appellees’
motion for summary judgment. In Dalton v. City of Marietta, 280 Ga. App. 202 (633
SE2d 552) (2006), we determined that excluding a doctor’s medical narrative report
from consideration on a motion for summary judgment was error and found that
it is well settled that the trial court on summary judgment need not limit its inquiry to the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits set out in OCGA § 9-11-56 (c). Those forms of evidence are not the exclusive means of presenting evidence on a motion for summary judgment. The trial court may consider any material which would be admissible or usable at trial.
(Citations and punctuation omitted; emphasis in original). Dalton, supra, 280 Ga.
App. at 204 (1). See also Glisson v. Morton, 203 Ga. App. 77, 77-78 (2) (416 SE2d
134) (1992) (excerpts from plaintiff’s personnel file did not have to be certified or be
part of a sworn affidavit to be considered in support of defendant’s motion for
summary judgment).
5 Certainly, at trial, the sworn statements could be admissible as prior consistent
statements or for impeachment purposes. OCGA § 24-6-613. Therefore, we find no
error in the trial court’s denial of Hayes’s motion to strike.3
2. In determining whether the trial court properly granted summary judgment
to appellees, we note that
[p]roof of the occurrence of an injury, without more, is insufficient to establish liability on the part of a proprietor. In order to recover, the plaintiff must prove that the defendant had superior knowledge of a dangerous condition that was unknown to the plaintiff and that caused plaintiff’s injuries.
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SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 13, 2014
In the Court of Appeals of Georgia A13A1698. HAYES v. SNS PARTNERSHIP, LP et al.
MILLER, Judge.
Bobbie Ann Hayes injured her knee while entering a Steak N Shake restaurant
when the door closed on her shoe, causing her to fall. Hayes sued SNS Partnership,
LP, the owner of the premises, and Steak N Shake Operations, Inc., operator of the
restaurant. Hayes contends that the trial court erred in granting summary judgment
to the defendants and in an evidentiary ruling. .
On appeal from a grant or denial of summary judgment, we conduct a de novo
review of the law and evidence. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d
541) (1998). In applying the standard of review on a motion for summary judgment,
this Court views the evidence in the light most favorable to the nonmovant to determine whether a genuine issue of material fact exists and whether the moving
party is entitled to judgment as a matter of law. Id. A defendant may prevail on
summary judgment “by showing the court that the documents, affidavits, depositions
and other evidence in the record reveal that there is no evidence sufficient to create
a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v.
Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
So viewed, the evidence shows that Hayes had been to this Steak N Shake on
two or three occasions before her fall, although she had not opened the door for
herself on those visits. On April 6, 2010, Hayes went to the restaurant by herself and
opened the door, and I stepped in. And immediately, the door, like, started pushing me. And it was pushing me really hard, and I was trying to keep from falling down. And the door had caught my shoe, and the shoe was hung in it. But I didn’t realize that the shoe was hung in it because I was just . . . trying to keep from falling down because . . . it was, like, pushing me, . . . , and I’m trying to get my balance. And so I go to take a step, you know, to get on out of the way, and my shoe was hung under the door, so that made me fall real hard.
Hayes suffered a fractured knee cap as a result of her fall. The shoe Hayes was
wearing was a hard soled open-backed sandal with no heel strap. Following her fall,
a Steak N Shake employee removed her sandal from under the door.
2 Justin Rozar, the operations supervisor that evening, was in the office when an
employee advised him a woman had fallen. Rozar went to the foyer,1 where he found
Hayes on the floor. Rozar and the other employee helped Hayes into a chair and
Hayes’s daughter came and took her to the hospital. Hayes told Rozar she opened the
door and the door closed on her sandal, catching her heel and causing her to fall.
Following Hayes’s fall, Rozar opened and closed the door, which he used
everyday coming to work, and found that it operated as it always had. Rozar said no
one had complained about the door prior to Hayes’s fall.
Kenneth Smith, general manager at this Steak N Shake, was not on site that day
but, following his notification of the fall, he also inspected the door and noted
nothing out of the ordinary. As he observed, the door is a self-closing door and “when
you open it, if someone’s not holding it, it’s going to close itself.”
Hayes deposed Collin Braynard, who became the district manager for Steak N
Shake in July 2010, following Hayes’s fall. Braynard explained the policy regarding
maintenance and upkeep of the buildings. Managers are to conduct a daily walk-
around looking for cleanliness and repair issues. The district manager also conducts
1 Two exterior doors opened into the foyer and then a second door was opened into the interior of the restaurant.
3 a quarterly inspection, looking at every detail of the restaurant, which can take up to
six hours. The proper closing time for the doors, seven seconds, would be checked
on these quarterly inspections.
1. In her first enumeration, Hayes contends that the trial court erred in denying
her motion to strike the sworn statements of Justin Rozar and Kenneth Smith. We
address this issue first in order to determine if these statements were properly
considered by the trial court in ruling on the motion for summary judgment.
Counsel for appellees questioned Rozar and Smith in the presence of a certified
court reporter who gave the oath to the two witnesses and took down their testimony.2
Hayes argues that, because the two statements do not qualify as “affidavits” under
OCGA § 9-11-56 (e), they should have been stricken.
This Court reviews the denial of a motion to strike an affidavit for abuse of
discretion. Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 102-103 (1) (a)
(734 SE2d 883) (2012). We will use this same standard in reviewing the denial of a
motion to strike sworn statements.
While Hayes is correct that the two sworn statements do not qualify as
affidavits under OCGA § 9-11-56 (e), that does not end our consideration of whether
2 The content of their testimony is contained in Division 2.
4 they should have been stricken from the record for purposes of considering appellees’
motion for summary judgment. In Dalton v. City of Marietta, 280 Ga. App. 202 (633
SE2d 552) (2006), we determined that excluding a doctor’s medical narrative report
from consideration on a motion for summary judgment was error and found that
it is well settled that the trial court on summary judgment need not limit its inquiry to the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits set out in OCGA § 9-11-56 (c). Those forms of evidence are not the exclusive means of presenting evidence on a motion for summary judgment. The trial court may consider any material which would be admissible or usable at trial.
(Citations and punctuation omitted; emphasis in original). Dalton, supra, 280 Ga.
App. at 204 (1). See also Glisson v. Morton, 203 Ga. App. 77, 77-78 (2) (416 SE2d
134) (1992) (excerpts from plaintiff’s personnel file did not have to be certified or be
part of a sworn affidavit to be considered in support of defendant’s motion for
summary judgment).
5 Certainly, at trial, the sworn statements could be admissible as prior consistent
statements or for impeachment purposes. OCGA § 24-6-613. Therefore, we find no
error in the trial court’s denial of Hayes’s motion to strike.3
2. In determining whether the trial court properly granted summary judgment
to appellees, we note that
[p]roof of the occurrence of an injury, without more, is insufficient to establish liability on the part of a proprietor. In order to recover, the plaintiff must prove that the defendant had superior knowledge of a dangerous condition that was unknown to the plaintiff and that caused plaintiff’s injuries. Without evidence of the existence of a dangerous condition, there can be no evidence that the defendant had any knowledge of the danger, and therefore no recovery for the plaintiff.
(Citations and punctuation omitted; emphasis supplied.) Metts v. Wal-Mart Stores,
269 Ga. App. 366, 367 (604 SE2d 235) (2004).
In Metts, a customer was injured when boxes fell off a display rack. There was,
however, no evidence that the display rack was defective in design or construction,
and this Court affirmed summary judgment to Wal-Mart. Id. at 367-368. Similarly,
in Siegel v. Park Avenue Condominium Assn., 322 Ga. App. 337, 338 (1) (744 SE2d
3 We note that, in addition to his sworn statement, the deposition of Justin Rozar is also concluded in the record.
6 876) (2013), Siegel stood within the “barrel” of a revolving door holding an oxygen
canister while a friend got in a car. When Siegel signaled the valet to come and get
the cannister, her movement triggered the door’s sensor, causing the door to rotate
and hit her foot, whereupon she fell and broke her hip and elbow. In the face of the
Association’s evidence that the door was operating normally, “Siegel presented no
evidence to the contrary, such as expert testimony that the speed or force of the
automatic doors was excessive or the sensor that triggered the movement was too
sensitive or sited improperly.” Id. at 339. This Court affirmed the summary judgment
to the Association.
Here, in addition to her own testimony, the only evidence offered by Hayes in
support of her contentions was the affidavit of her daughter that the door at Steak N
Shake was “heavy” on prior occasions when she had visited the restaurant as well as
when she went to get her mother after her fall and that, on a later occasion, she
returned and found that the door was closing “at a slower speed and it feels lighter.”
These lay opinions of Hayes and her daughter, however, fall short of providing
evidence of a defect in the door when Hayes fell and do not create any issue of fact
which would preclude summary judgment. See Johnston v. Grand Union Co., 189 Ga.
App. 270, 270-271 (1) (375 SE2d 249) (1988) (solitary fact that doors closed on a
7 customer, for no ascertainable reason, did not constitute evidence from which it could
be inferred that the store knew or should have known doors might close unexpectedly
and no evidence of previous malfunction of doors was shown); Warner v. Hobby
Lobby Stores, 321 Ga. App. 121, 124 (1) (741 SE2d 270) (2013) (plaintiff failed to
present evidence that misaligned brackets constituted a dangerous condition or were
more prone to break; summary judgment to defendant affirmed) (physical precedent
only).
Where, as here, the question of whether the allegedly dangerous condition
caused the plaintiff’s injuries
remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant. Likewise, it is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.
(Citation, punctuation and footnote omitted.) Hardnett v. Silvey, 285 Ga. App. 424,
426 (646 SE2d 514) (2007).
8 Therefore, we find no error in the trial court’s grant of summary judgment for
appellees.
Judgment affirmed. Barnes, P. J. concurs. Ray, J., concurs fully as to
Division 2 and concurs in judgment only as to Division 1.