Fussell v. Jimbo's Log Kitchen, Inc.

489 S.E.2d 71, 227 Ga. App. 161, 97 Fulton County D. Rep. 2542, 1997 Ga. App. LEXIS 861
CourtCourt of Appeals of Georgia
DecidedJuly 9, 1997
DocketA97A0060
StatusPublished
Cited by9 cases

This text of 489 S.E.2d 71 (Fussell v. Jimbo's Log Kitchen, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fussell v. Jimbo's Log Kitchen, Inc., 489 S.E.2d 71, 227 Ga. App. 161, 97 Fulton County D. Rep. 2542, 1997 Ga. App. LEXIS 861 (Ga. Ct. App. 1997).

Opinions

Ruffin, Judge.

Linda J. Fussell sued Jimbo’s Log Kitchen, Inc. (“Jimbo’s”) for personal injuries sustained when she slipped and fell on Jimbo’s [162]*162property. The trial court granted summary judgment to Jimbo’s, and Fussell appeals. For reasons which follow, we reverse.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

Viewing the evidence favorably to Fussell, the record shows the following. At about 12:00 p.m. on the day of the accident, Fussell and her husband went to Jimbo’s, a local restaurant in Valdosta, Georgia, for lunch. Although it rained earlier that morning, the rain stopped by lunchtime. Fussell testified, however, that the streets were still wet from rain when they arrived at Jimbo’s.

The Fussells approached the restaurant on a wooden walkway leading from the parking lot. The conditions on the walkway were “not good” because the boards were wet, slippery, and in disrepair. Nevertheless, the Fussells traversed the wooden walkway without incident and ate lunch in the restaurant. Upon leaving, however, they decided not to use the walkway because of its bad condition. Instead, they approached the parking lot via an asphalt handicap ramp. As Fussell started down the ramp, the heel of her right shoe caught in a crack on the ramp, and her left foot slipped from under her. She fell on the ramp and heard a bone pop on her right side. According to Fussell, the ramp was slippery at the time of her fall. She further testified that if her left foot had not slipped on the ramp, she would not have fallen.

In the ambulance on the way to the emergency room, the attendant remarked that Fussell had little chicken feathers on her clothes. Mr. Fussell testified that he also saw chicken feathers on his wife’s clothing and noticed feathers on the handicap ramp while he was assisting her on the ground after the fall. The record reveals that Jimbo’s housed several chickens in a chicken coop on the premises.

Prior to Fussell’s fall, Jimbo’s had never received any complaints regarding slip and fall incidents on the handicap ramp and was not otherwise aware of any other incidents or complaints. Jimbo’s similarly had not received any complaints about the safety of the ramp and was not aware of any dangerous condition, including any alleged [163]*163danger caused by chicken feathers. The record reveals that Jimbo’s swept the sidewalks and handicap ramps on its premises daily. Jimbo’s president further testified that on the day of Fussell’s fall, and in accordance with Jimbo’s policy, the handicap ramps and sidewalk areas on the premises were swept between 10:00 a.m. and 11:00 a.m.1 At that time, no chicken feathers or other debris were present in the area where Fussell fell.

Fussell sued Jimbo’s for injuries sustained in the fall, alleging that Jimbo’s negligence and failure to maintain the premises in a safe condition caused her to slip on wet chicken feathers. Thus, she contends that a foreign substance caused her fall, rather than a crack in the pavement or other static condition. To support her claim, Fussell must show “(1) that [Jimbo’s] had actual or constructive knowledge of the foreign substance and (2) that [she] was without knowledge of the substance or for some reason attributable to [Jimbo’s] was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Fussell argues on appeal that the trial court improperly granted summary judgment to Jimbo’s. We agree.

1. In its summary judgment order, the trial court focused on Fussell’s knowledge of the hazard, concluding that Fussell’s knowledge was greater than Jimbo’s and that she failed to exercise ordinary care for her own safety. Viewing the evidence favorably to Fussell, however, we find that fact issues remain as to her knowledge and exercise of ordinary care.

(a) We note initially that the parties dispute whether the chicken feathers caused Fussell’s fall. The trial court found, and Jimbo’s argues, that Fussell presented no evidence supporting her allegation that she slipped on chicken feathers. According to Jimbo’s, rainwater and a crack in the pavement caused the fall and Fussell had equal knowledge of these hazards. Viewing the evidence favorably to Fussell, however, we find that a question of fact remains regarding the cause of Fussell’s fall. As revealed by her deposition, Fussell cannot pinpoint what caused her to fall on the ramp. Asked whether she slipped on chicken feathers, Fussell testified that she does not know; she knows only that “[she] slipped on this ramp, and that it was slippery. . . .” The record also shows, however, that Fussell’s clothing was covered with chicken feathers after the fall and that her hus[164]*164band noticed feathers on his clothes and on the ramp while helping her on the ground.

“The existence of [chicken feathers on the ramp] was otherwise shown by direct evidence^] and the circumstantial evidence [that both Fussell and her husband noticed feathers on their clothes following the fall] would authorize a finding that [the feathers were] the cause of [Fussell’s] fall. Thus, construing the evidence most favorably for [Fussell] and most strongly against [Jimbo’s], a genuine issue of material fact remains” as to the cause of Fussell’s fall. Bramblett v. Hansel-Scales, Inc., 200 Ga. App. 722, 723 (2) (409 SE2d 280) (1991). Compare Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987) (“Considering the ultimate fact that [plaintiff] testified in her deposition that she did not see any [slippery] substance, did not feel it or experience it on her clothing and did not inspect the floor after her fall, leads inescapably to the conclusion that only a fall was involved. . . .”).

(b) The record raises further questions as to whether Fussell knew or should have known about and avoided the hazard. “The customer must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” (Citations and punctuation omitted.) Alterman Foods, supra at 623. Yet, “ £[l]ooking continuously, without intermission, for defects ... is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place.’ [Cit.]” Newell v. Great A & P Tea Co., 222 Ga. App. 884, 885 (1) (476 SE2d 631) (1996).

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Bluebook (online)
489 S.E.2d 71, 227 Ga. App. 161, 97 Fulton County D. Rep. 2542, 1997 Ga. App. LEXIS 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fussell-v-jimbos-log-kitchen-inc-gactapp-1997.