Department of Human Resources v. Thomas

456 S.E.2d 724, 217 Ga. App. 174, 95 Fulton County D. Rep. 1359, 1995 Ga. App. LEXIS 391

• Court: Court of Appeals of Georgia
• Decided: March 17, 1995
• Docket: A94A2190
• Status: Published

Opinions

McMurray, Presiding Judge.

Plaintiff Gloria Thomas brought this action against defendant, the Georgia Department of Human Resources (“DHR”), pursuant to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. According to the complaint, plaintiff was injured in a cafeteria at the West Central Georgia Regional Hospital. As she was “waiting to pay for her meal, Plaintiff fell, . . . due to food spilled on the floor.” The complaint also alleged that employees of DHR “knew that food was spilled upon the floor [. . . whereas] Plaintiff did not know that this food was spilled on the floor.” The case was tried before a jury, which found for the plaintiff. This appeal followed. Held:

1. In its first enumeration, DHR contends the trial court erred in failing to direct a verdict in its favor.

(a) “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. Skelton v. Skelton, 251 Ga. 631 (4) (308 SE2d 838) (1983).” Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (353 SE2d 491).

In the case sub judice, the evidence showed that plaintiff slipped on cream of broccoli soup. This was spilled on the floor in the general “area around where [a] coffee pot . . .” stood against the wall and a few feet beyond the cash register. The hospital cafeteria is generally very crowded on Fridays, and this particular Friday was no exception. The area by the checkout is especially crowded because the line of paying customers merges with the throng of non-paying hospital patients, all waiting to get beverages. Lieutenant Otis C. Brown of the Muscogee County Sheriff’s Department and Asberry Clayton stood in the serving line and observed as a hospital employee “was getting her food to take out in a tray. . . . [S]he had paid the cashier already, and she went to get her — the cup of soup right by the coffee. As she picked up the cup of soup, it slipped from her hand and fell on the floor right in front of the cash register.” Lieutenant Brown told the cashier: “There’s soup here on the floor, you should get someone to clean it up because someone will step in it.” Asberry Clayton repeated this admonition to the cashier. Lieutenant Brown estimated that the spill was “a twelve by twelve puddle, blob.” Victoria M. Allen was working the cash register. She affirmed that “[t]hree people told [her] that somebody had spilled stuff on the floor. . . .” Ms. Allen “was telling people there was soup on the floor [. . . but] didn’t. . .” warn plaintiff about it. Ms. Allen also confirmed that, with regard to such cafeteria spills, she was supposed to get them cleaned “up as soon as possible [. . . and] to warn people [by putting] a little sign out [but that she did not] do any of those things.”

Plaintiff stood in line “three or four people behind [Lieutenant Brown and Asberry Clayton].” She was purchasing her own “meal, plus . . . taking [a second meal back for] another employee. . . .” Plaintiff could not simultaneously carry both her tray and the “Styrofoam box . . . that was the takeout tray,” so she paid for her own lunch first and “left the takeout there with Ms. Allen [at the checkout].” Telling the cashier that she “would be right back[,]” plaintiff walked with her tray to a table. She placed that tray on the table and then returned to the “general area” of the checkout, but “flush to the wall. . . .” There, she waited until the cashier “gave [her] the okay that [she] could come in and pay her and get the other tray to carry out.” At that point, plaintiff “didn’t have a tray in her hand. . . .” When she started to approach [the cashier], [her] feet went to sliding and ... at that point, that’s when [plaintiff] hit the little rail . . .” and fell. From the floor, plaintiff detected that her shoes were wet. Only then did she see that wet paper towels covered “a little humplike something in . . . (a] corner ... in front of the [black] baseboard.” MaryAnn Foster, who saw plaintiff fall, previously “had come through the line and [she] didn’t see anything [on the floor], [as she] went by the coffee machine[,]” on her way to the ice machine. Plaintiff was adamant that she “[n]ever [saw the spill] while she was standing up[.]” Accordingly, there is evidence authorizing the jury to conclude that “plaintiff [has shown] that the defendant had [actual]¹ knowledge of the presence of the foreign substance, [and . . . that she] was without knowledge of its presence. Sears, Roebuck & Co. v. Reid, [132 Ga. App. 136, 138 (207 SE2d 532)].” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). “A directed verdict ([or] judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50 (a), (b). Viewing this evidence in favor of the jury’s verdict, we cannot find the evidence, with all its reasonable deductions, demanded a verdict for the defendant. . . . [Cit.]” (Emphasis in original.) Union Camp Corp. v. Daley, 188 Ga. App. 756 (1) (374 SE2d 329).

(b) Nevertheless, DHR argues that an alleged “conflict in Plaintiff’s testimony on deposition and at trial, when construed against her, entitled defendant to a directed verdict.” Specifically, DHR argues that plaintiff’s “trial testimony that her tray prevented her from seeing the spill the first time contradicted her deposition testimony that there was nothing that would have prevented her from seeing the spill the first time she passed by it, if she had looked down.” DHR would apply the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). DHR then argues that plaintiff is conclusively presumed to have knowledge of the hazardous substance because she walked past the area of the spill and admittedly did not look down at the floor. From this, DHR argues that plaintiff has failed to exercise ordinary care on her own behalf. See OCGA § 51-11-7.

In the case sub judice, plaintiff testified under cross-examination that she did not see the spill (and could not have seen it) when she first passed by the area of the coffee pot because she was looking straight ahead, “watching where [she] was going,” and trying to avoid bumping into patients and others in the crowd. Plaintiff was pressed repeatedly whether there was “anything that would have prevented you from seeing the spill if you had looked down,” during which plaintiff never admitted that she should have seen the spill while conceding that she must have passed it. The following then transpired: “[PLAINTIFF:] I had my tray. My lunch was in my hand when I made the turn [away from the cash register]. ... I could not see the floor directly right there up under me. I paid for my tray like you would do at Morrison’s, I made the turn, and I came on out. That’s the best I can do. . . . I’m sorry.” Thereafter, DHR sought to impeach plaintiff with her pre-trial deposition testimony, reciting that she had been asked: “ ‘Was there anything that would have prevented you from seeing it when you passed by?’ . . . [Plaintiff answered:] ‘No, because nobody was standing there.’ ”

“Every witness is under a solemn obligation to tell the truth, the whole truth, and nothing but the truth; and this obligation is especially binding upon one who seeks, by his own testimony, to establish a substantial right against another. Atlanta Consolidated St. Ry. Co. v. Beauchamp, 93 Ga. 6 (19 S.E. Rep. 24). . . . Being peculiarly in a position to state fairly and definitely the facts which [s]he professes to know, [a party, i.e., the plaintiff in the case sub judice,] is under a duty of so stating [those facts] as to give a candid and intelligible account of what occurred.” The Western &c. R. Co. v. Evans, 96 Ga. 481, 485-486 (23 SE 494). “The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial ‘ “is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” ’ [Cits.] Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. Douglas v. Sumner, [213 Ga. 82, 85 (3) (97 SE2d 122)].” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1), supra.

In the case sub judice, it is our view that, plaintiff’s trial testimony that the tray in her hand blocked her view of the floor is not a material self-contradiction of her pre-trial deposition that no person was standing in the general area of the spill. “[T]o ‘contradict’ [means] ‘to assert the contrary.’ ” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2), n. 3, supra. Plaintiff’s two statements are not in irreconcilable conflict but can be viewed as complementary, in which case there is no inconsistency. See Broomberg v. Hudgens, 206 Ga. App. 797, 798 (2) (426 SE2d 617). See generally Mealer v. Gen. Cinema Beverages of Ga., 190 Ga. App. 419, 420 (379 SE2d 192). Conversely, if plaintiff intentionally contradicted herself by making a distinction between the tray in her hand and third persons blocking her view, this is a reasonable explanation, per Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2), 31, supra. In either event, the “credibility of [this] witness [remained] a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. See also Ryder v. Schreeder, 224 Ga. 382 (2), 386 (162 SE2d 375). The trial court did not err in failing to construe this alleged self-contradiction against the plaintiff while considering DHR’s motion for directed verdict.² Whether plaintiff should have seen the spill amid the cafeteria tumult remained a question for the jury to determine, under all the facts and circumstances. “ ‘ “(Q)uestions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.” (Cit.)’ ” Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895). See also Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 96 (4) (449 SE2d 618). In the case sub judice, the fact that plaintiff had previously walked past the general area of the spill is not conclusive of her failure to exercise ordinary care to detect and avoid the hazardous foreign substance, of which DHR had actual knowledge. Cedartown-Polk County Hosp. Auth. v. Watwood, 195 Ga. App. 321, 322 (393 SE2d 476). The trial court did not err in denying DHR’s motion for directed verdict.

2. In its second enumeration, DHR contends the trial court erred in charging the jury on loss of future earnings, arguing there is no evidence that plaintiff’s capacity to earn has been permanently reduced as a result of her injuries. In reply, plaintiff points to medical opinion indicating that she has suffered a 20 percent disability rating.

“Damages allowed to a plaintiff for injury to his earning capacity are compensatory, allowing a pecuniary recovery for a diminution in the physical ability to work resulting from an injury to the person of the plaintiff. Atlantic C. L. R. Co. v. Ansley, 84 Ga. App. 89 (65 SE2d 463).” (Emphasis in original.) Leggett v. Benton Bros. Drayage &c. Co., 138 Ga. App. 761, 764 (1), 765 (227 SE2d 397). “ ‘While proof of the plaintiff’s actual earnings, either before or after the injury, is not essential to the establishment of the value of the plaintiff’s decreased earning capacity, there must nevertheless appear some evidence, either direct or circumstantial, tending to show what the plaintiff was capable of earning both before and after the injury. . . .’ [Cits.]” Hunt v. Williams, 104 Ga. App. 442, 446 (4), 448 (122 SE2d 149). In the case sub judice, the undisputed evidence is that, while she was transferred to the personnel department at West Central Georgia Regional Hospital, plaintiff remains employed without any evidence of diminution in her actual wages or future earning capacity. “[E]vidence that the plaintiff was employed . . . before [her] injury and that after the injury [she] returned to work ... at a stated weekly wage, was insufficient to support the [charge] objected to, even though the evidence showed the plaintiff was permanently injured. Hunt v. Williams, 104 Ga. App. 442, 446 [(4), supra].” Smith v. Burtts, 116 Ga. App. 649, 650 (1) (158 SE2d 702). Contrary to plaintiff’s contention, in the absence of evidence showing a diminution in the plaintiff’s earning capacity, her stated fear of being fired at some future point is not competent evidence in support of pain and suffering or any other element of recoverable damages for the negligent injury to her person. See Brush Elec. Light &c. Co. v. Simonsohn, 107 Ga. 70, 72 (2), 73 (32 SE 902). The error in giving the unwarranted jury instruction on lost future earnings cannot be deemed harmless in this instance. City Council of Augusta v. Owens, 111 Ga. 464, 480 (9), 481 (36 SE 830). Accordingly, while we affirm the judgment in part, based upon the existing jury verdict finding DHR liable for plaintiff’s personal injuries, we nevertheless reverse the judgment in part on the basis of the trial court’s improper jury instruction as to damages. The case is remanded for a new trial, limited solely to the proper amount of damages. OCGA § 9-11-50 (e).

3. Defendant’s third enumeration has been considered and is found to have been rendered moot.

Judgment affirmed in part as to liability; reversed in part and remanded for a new trial as to damages.

Pope, P. J., concurs. Beasley, C. J., Johnson and Blackburn, JJ., concur specially. Birdsong, P. J., Andrews, Smith and Ruffin, JJ., dissent.

1 In light of this actual knowledge, DHR’s reliance on Moore v. Food Assoc., 210 Ga. App. 780, 782 (437 SE2d 832), is misplaced. Moore represents, at best, a constructive knowledge situation. A complete and correct citation of that decision’s rationale is: “It is not enough for the plaintiff to say that she did not see the dangerous condition and that the defendant must have known it was there.” (Emphasis supplied.) Moore v. Food Assoc., 210 Ga. App. 780, 782, supra.

2 Although the dissent finds substantial variances on virtually every material issue, the motion for directed verdict argued only the single alleged inconsistency reviewed in this division. Moreover, alleged inconsistencies as to plaintiff’s estimates of the precise measurement of the paper towel blob or the exact length of time she stood near the spill are not conclusively deemed binding, even if adverse to plaintiff. Hansberger Motor Transp. Co. v. Pate, 51 Ga. App. 877, 878 (3) (181 SE 796).