Johnston v. Grand Union Co.

375 S.E.2d 249, 189 Ga. App. 270, 1988 Ga. App. LEXIS 1369

• Court: Court of Appeals of Georgia
• Decided: October 18, 1988
• Docket: 76801
• Status: Published

Opinions

Birdsong, Chief Judge.

The appellant Katherine Johnston sued Grand Union Co., d/b/a Big Star, for personal injuries received when the store’s automatic doors, which operated by electronic beam, unexpectedly closed upon her as she was entering the store. The trial court granted summary judgment to the defendant, and Johnston appeals.

The essentially undisputed facts are that on two occasions, three weeks before and nearly four months before this incident, Grand Union had had these doors inspected and repaired; but these repairs were not for the defect described by the plaintiff, i.e., that the doors closed unexpectedly, but rather the doors had malfunctioned in a near-opposite manner, i.e., they failed to close entirely. There are no identified witnesses to this incident. The plaintiff testified that after her injury, a female store employee who had red hair and was neither a large person nor a small person, but a medium person, remarked to plaintiff that “there was something wrong with the door, and she had made the statement that if the door wasn’t fixed, someone was going to get hurt. . . She didn’t say [to whom she had made that statement].” Immediately after the incident, the store manager tested the functioning of the doors by stepping through the electronic beam, hesitating, and then stepping out, and the doors functioned properly. Held:

1. The trial court did not err in granting summary judgment to the defendant in this case. No evidence has been pointed out to us that Grand Union had actual or constructive superior knowledge of a defect in the doors. The solitary fact that they closed unexpectedly on the plaintiff on one occasion, for no reason that has been ascertained, does not constitute any evidence from which it can be inferred the store knew or should have known the doors might close unexpectedly. There is no evidence the doors had ever previously malfunctioned in this manner or in a proven related manner. The store had recently had the doors inspected, and had had other defects repaired. There is no evidence the store was negligent by any failure to inspect the doors or keep them in repair. There is, in short, no evidence at all from which to conclude the store had superior knowledge of a defect or dangerous condition.

The imputed statement of the red-haired, medium-sized but otherwise unidentified store employee that “[t]here was something wrong with the door, and she had made the statement that if the door wasn’t fixed, someone was going to get hurt,” is hearsay. Clearly an admission against interest by an employee-agent is admissible (§§ 24-3-33; 24-3-34), but only so long as it is not hearsay. The statement is inadmissible, because its utterer cannot be identified, located, summoned and cross-examined. It is hearsay of the worst sort, for it seeks to prove the essential fact of superior knowledge by allowing the witness, the plaintiff, to say what an unknown person said she said to another. See OCGA § 24-3-1. Testimony of this sort is only rumor, asserted to prove the truth of what this unknown person said. See Plemons v. State, 155 Ga. App. 447 (270 SE2d 836). The nature of the evidence shows its weakness; the alleged person who made the alleged remark is not before the court and cannot be questioned. Mills v. Bing, 181 Ga. App. 475 (352 SE2d 798). Its defectiveness is not cured by the fact that it is allegedly an “admission” by an “agent.” The two underlying reasons for any exception to the hearsay rule are a necessity for the exception, “ ‘ “and a circumstantial guaranty of the trustworthiness of the offered evidence.” [Cit.]’ ” Gentile v. Miller, Stevenson & Steinichen, 182 Ga. App. 690, 692 (356 SE2d 666). These elements are completely lacking in this evidence. Some cases which have held that such evidence offered of the sayings of an employee are inadmissible, have done so on grounds that it was not shown the utterer was in fact an agent (Seaboard Coast Line R. Co. v. Carter, 226 Ga. 825, 827 (2) (177 SE2d 683); Gordon v. Athens Convalescent Center, 146 Ga. App. 134, 135 (245 SE2d 484)) and wherever this is the case, as here, there is certainly no authority for its entry into evidence as an admission against interest by an employee under §§ 24-3-33 and 24-3-34.

Certainly the sayings of the unknown red-haired person were not part of the res gestae, since the alleged utterer is unknown, it cannot be shown that they qualify as being “free from all suspicion of device or afterthought. . . .” (OCGA § 24-3-3); and the trial court was right to so conclude. In Allen v. State, 174 Ga. App. 206, 207 (329 SE2d 586), this court had the following to say: “Each case concerning the application of the res gestae exception to the hearsay rule must turn on its own circumstances, and the admissibility of such testimony is left to the sound discretion of the trial judge.” The trial judge in this case did not abuse its discretion.

It might be that if it were shown positively that the red-haired, medium-sized woman was an employee of defendant and was identified, so that she could be cross-examined at trial, the plaintiff’s presentation of this evidence might enable her to survive summary judgment. But we have held that the putting forward of some unidentified, unspecific person as an “employee,” who allegedly made certain remarks that would bind or incriminate the employer, and as to whom there is no showing the person can be brought forth at trial or even located, or in fact exists, is not enough to raise a genuine issue of material fact controverting the defendant’s positive testimony that there was no defect of which it had actual or constructive superior knowledge. Blessing v. Doctors Mem. Hosp., 184 Ga. App. 737, 738-739 (362 SE2d 394); see Collins v. S. H. Kress & Co., 114 Ga. App. 159 (150 SE2d 373). The reason for this is obvious: evidence imputing superior knowledge only at the suggestion of a statement allegedly made by a mystery person is completely unreliable. It is the very essence of hearsay.

2. Appellant contends these defective doors constituted a dangerous instrumentality and therefore defendant’s superior knowledge is not required for imposition of liability. Asserting that this is not a mere “slip and fall” case, or premises liability case, appellant cites Higdon v. Ga. Winn-Dixie, 112 Ga. App. 500 (145 SE2d 808) to prove it involves a dangerous instrumentality. But, at bottom, the plaintiff has not even shown the door was defective, and certainly not that the same alleged defect which injured this plaintiff, had “habitually recurred.” The defendant having shown there was no defect, the plaintiff has not raised an issue of fact by setting forth a specific fact showing that the doors were an instrumentality “so defectively constructed as to be imminently dangerous.”

The order of the trial court finding no basis for liability on the part of the defendant, that is, finding no negligence and no superior knowledge of a defect, is correct.

Judgment affirmed.

Deen, P. J., and Pope, J., concur. Beasley, J., concurs specially. Sognier, J., concurs in judgment only. McMurray, P. J., Banke, P. J., Carley, and Benham, JJ., dissent.