Brown v. J. C. Penney Co.

180 S.E.2d 364, 123 Ga. App. 233, 1971 Ga. App. LEXIS 1176

• Court: Court of Appeals of Georgia
• Decided: January 28, 1971
• Docket: 45707
• Status: Published

Opinions

Eberhardt, Judge.

This is an appeal from the grant of a summary judgment. Plaintiff below alleged in her petition that she had suffered injury when she fell on a slippery step of the escalator in defendant’s store, about which she had not been warned. Defendant denied that it had been guilty of any negligence, and moved for summary judgment, submitting interrogatories and plaintiff’s answers, her deposition and an affidavit of a security guard who was present in the store at the time plaintiff fell. From the grant of summary judgment plaintiff appeals. Held:

There is no disagreement with the proposition that one who moves for summary judgment has the burden of demonstrating that the opposite party can not lawfully recover. Every judge on the court has joined in that holding several times.

But in instances when the burden has been carried, as here, if we should hold that the grant was not proper we would, in effect, be nullifying the Summary Judgment Act, now included in § 56 of the Civil Practice Act. It would render the Act meaningless, and one can not conclude that this is the case. It has served and serves a useful purpose, viz., to eliminate the necessity of a trial by jury when there is no genuine issue of fact to be tried. Lampkin v. Edwards, 222 Ga. 288 (1) (149 SE2d 708); Manning v. A. A. B. Corp., 223 Ga. 111, 117 (153 SE2d 561); Butterworth v. Pettitt, 223 Ga. 355, 357 (155 SE2d 20).

If the evidence introduced by movant pierces the pleadings and discloses the absence of a right of recovery, the grant of summary judgment is proper and should follow. Scales v. Peevy, 103 Ga. App. 42 (118 SE2d 193); General Gas Corp. v. Carn, 103 Ga. App. 542 (120 SE2d 156), both approved in Crutcher v. Crawford Land Co., 220 Ga. 298, 304 (138 SE2d 580).

The defendant pierced the pleadings. The plaintiff’s deposition was taken, in which she testified: "Q. Just exactly how did you fall? A. My foot slipped. I stepped on it and out it went and I tried to catch. I still had this foot on the step above, and I tried to catch but I lost balance. . . Q. Now did you know what caused you to fall? A. Well, the step was slippery. I don’t know what caused it to be slippery, but it was slippery, and my foot just slipped out, and I fell. . . Q. You didn’t see anything on the step did you? A. I didn’t see anything on the step but I felt it, real slippery and my foot slipped. Those shoes were not slippery shoes, nor the sole. Q. I understand, but you say you did not see any substance on the step? A. No, I didn’t notice any. Q. You didn’t see anything like candy, or a glob of grease or anything like that did you? A. No, I didn’t see anything on the steps. Q. The step was slippery, is that what you said? A. That’s right. Q. The step itself? A. Well, it must have been something on there because it was real slippery, although / can’t say that I really saw something on the step because it all happened so quickly. Q. You never have seen anything, any foreign particle on the step, is that right? A. I didn’t see anything at that time on the step. Q. Have you ever seen anything on the step — did you see anything on the step after your fall? A. No, we didn’t check the steps after I fell . . . Q. Now the escalator didn’t do anything itself to cause you to fall, did it? A. I don’t think the escalator had anything to do with it, because it didn’t jerk; it was just the step was slippery. . . Q. You have never seen any foreign substance on this step or on your shoe, any foreign substance? A. No. Q. And you don’t know how long, of your own personal knowledge, you don’t know how long that step had been slippery, do you? A. No. Q. And you didn’t know it was slippery before you got on it? A. No, I didn’t.”

Sgt. Coye James of the Savannah Police Department, who was working as a security guard at the defendant’s store at the time, testified by affidavit that immediately after plaintiff fell he went to the escalator, carefully examined all of the steps, found no oil, grease or other foreign substances on any of them, saw nothing to cause one to fall, no worn or defective steps, and that when the escalator was started again it operated normally.

This evidence, tendered by movant, pierced the pleadings, and, as the Supreme Court asserted in Crutcher v. Crawford Land Co., 220 Ga. 298, 304, supra, plaintiff "had [her] choice of producing counter proof and thus make an issue of fact, or do nothing, that is, create no issue of fact and suffer judgment.”

Even if it be said that her pleadings raised an issue of fact it would not prevent summary judgment. "If issues of fact made by the pleadings will prevent summary judgment and require a jury trial, then it would be futile to produce evidence upon the hearing of a motion for summary judgment. . . We believe the Act was clearly intended to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial even though the petition fairly bristles with serious allegations, if when given notice and an opportunity to produce affidavits by persons competent to testify on their own knowledge to the truth of such allegations the pleader does nothing to contradict the affidavits of the movant which show there is no right of the opposite party to prevail.” Crutcher v. Crawford Land Co., 220 Ga. 298, 303, supra.

Plaintiff did nothing. She submitted no counter proof. We can find no basis for distinguishing the situation here from those in Collins v. S. H. Kress & Co., 114 Ga. App. 159 (2) (150 SE2d 373); Scott v. Gulf Oil Corp., 116 Ga. App. 391 (157 SE2d 526); W. T. Grant Co. v. Phillips, 116 Ga. App. 650 (158 SE2d 312) and Martin v. Sears Roebuck & Co., 120 Ga. App. 67 (169 SE2d 718), and others of like import.

Any other result would amount to holding the storekeeper to liability as an insurer of the safety of the premises, and this is not his obligation. "It should be borne in mind that the merchant, the occupier of the building, is not an insurer. As has been said in one case, 'What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use.’ McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 340 (15 SE2d 797).” Tinley v. F. W. Woolworth Co., 70 Ga. App. 390, 393 (28 SE2d 322. "It would impose too great a duty upon the proprietor . . . and would make him the insurer of the safety of all patrons, which he is not, to require him ... to remove every article on which a patron might stumble and fall when the article is placed there, not by the defendant . . . but by other patrons.” Jones v. West End Theatre Co., 94 Ga. App. 299, 303 (94 SE2d 135). Accord: Feldman v. Whipkey’s Drug Shop, 121 Ga. App. 580 (174 SE2d 474).

Argued October 6, 1970 Decided January 28, 1971. B. Clarence Mayfield, for appellant. Bouhan, Williams & Levy, Frank W. Seiler, for appellee.

Here it does not appear that either the defendant or some other patron had put anything on the escalator step, nor does it appear that the defendant had any knowledge of any unsafe condition relative to the step, actually or constructively. See United Theatre Enterprises v. Carpenter, 68 Ga. App. 438, 441 (23 SE2d 189); Boatright v. Rich’s, Inc., 121 Ga. App. 121 (5) (173 SE2d 232). And compare Holloman v. Henry Grady Hotel Co., 42 Ga. App. 347 (156 SE 275). Summary judgment was properly entered.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., Deen, Quillian, Whitman and Evans, JJ., concur. Pannell, J., dissents.