Adams v. Sears, Roebuck & Co.

• Citation: 227 Ga.App. 695,490 S.E.2d 150
• Decision Date: 16 July 1997
• Docket Number: No. A97A0740,A97A0740
• Parties: , 97 FCDR 2757 ADAMS v. SEARS, ROEBUCK & COMPANY et al.
• Court: United States Court of Appeals (Georgia)

Page 150

490 S.E.2d 150

227 Ga.App. 695, 97 FCDR 2757

ADAMS v. SEARS, ROEBUCK & COMPANY et al.

No. A97A0740.

Court of Appeals of Georgia.

July 16, 1997.

Michael B. King, College Park, for appellant.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, Julia B. Haffke, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

Celia Faye Adams appeals the grant of summary judgment to Sears, Roebuck & Company and the manager of a Sears' store, Leon Washington. Adams sought damages from Sears and Washington for injuries she allegedly received in a slip and fall in a Sears' store that Washington managed.

Adams verified complaint alleged that as she was walking in the store and looking at the merchandise, she stepped on a store hanger lost her balance, and fell to the floor injuring her knee, and the complaint further alleged that the defendants failed to inspect and maintain the store where she fell. After Sears and Washington filed verified answers denying liability, they moved for summary judgment contending that Washington was not liable because he neither owned nor occupied the store, that Sears was not liable because it had no knowledge, either actual or constructive, that the hanger was on the floor, and that Sears was not liable because Adams failed to exercise ordinary care for her own safety.

In support of the motion, Sears and Washington relied upon an affidavit from Washington stating that he was the general manager of this Sears' store, but he did not have an ownership interest in it, and also an affidavit from another Sears' employee. The employee's affidavit stated that she was working the day of Adams' fall, that her regular duties consisted of constantly straightening the sales floor and this duty includes picking up objects and clothing from the floor and constantly monitoring the sales floor. The affidavit stated that she did not see Adams fall, but she heard a noise, and when she rushed over, she saw Adams had fallen. The employee's affidavit further stated that the employee was in the area where Adams fell 15 to 20 minutes before she fell and the employee did not see any objects, including a hanger or clothing, on the floor.

Adams' response to the motion for summary judgment asserted that genuine issues of material fact remained for trial. The response was supported by affidavits from Adams and a friend who was shopping with her that day. Adams' affidavit stated as she stood near a dress rack, she stepped on a plastic hanger that was on the floor. At the time she stepped on the hanger, she was looking at the dresses on the rack, and she did not see the hanger which caused her fall until after she fell. The affidavit from Adams' friend stated that while she was shopping with Adams, she saw Adams lose her balance and fall and that after Adams fell, she saw a hanger on the floor near Adams' feet. Nothing in the evidence submitted by Adams, however, showed or allowed any inference of how long the hanger may have been on the floor before Adams fell.

Although raised in the motion for summary judgment, the trial court pretermitted the issue of actual or constructive knowledge of the hanger on the floor and granted summary judgment to Sears because the evidence did not create a jury issue on whether Adams exercised ordinary care for her own safety. The trial court also granted summary judgment to Washington because he was not an owner or occupier of the premises.

This appeal followed. Adams contends the trial court erred by granting summary judgment because genuine issues of material fact existed on whether she exercised due care before she fell, whether Sears failed to exercise ordinary care for Adams' safety, and whether Washington is liable to Adams for her injuries. Held:

1. When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Goring v. Martinez, 224 Ga.App. 137, 138(2), 479 S.E.2d 432; Bishop v. Mangal Bhai Enterprises, 194 Ga.App. 874(1), 392 S.E.2d 535. Further, the standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. On motions for summary judgment, the court cannot resolve the facts or reconcile the issues (Fletcher v. Amax, Inc., 160 Ga.App. 692, 695, 288 S.E.2d 49), but it is only where the contradictions by witnesses are to matters relevant and material to the issues that it is error to grant a motion for summary judgment. Raven v. Dodd's Auto Sales & Svc., 117 Ga.App. 416, 422, 160 S.E.2d 633. Further, it is the duty of each party at summary judgment to present her case in full or risk judgment going against her (Summer- Minter & Assoc. v. Giordano, 231 Ga. 601, 604, 203 S.E.2d 173), and on appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga.App. 764, 767, 431 S.E.2d 746.

2. Adams' contention that Washington, the store manager, is personally liable for her injuries is without merit. Regardless of whether Sears might be liable in this case, because Washington was neither an "owner nor occupier" of the Sears' store, he cannot be held liable under OCGA § 51-3-1, as a matter of law, and Adams has asserted no other basis for imposing personal liability upon him.

3. The standards which must be met to establish liability on the part of a proprietor in slip and fall cases are set forth in Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327. Coffey v. Wal-Mart Stores, 224 Ga.App. 824, 826, 482 S.E.2d 720. "[T]o state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [she] slipped and fell on a foreign substance on the defendant's floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance." Alterman Foods, supra at 623, 272 S.E.2d 327.

"Of course, merely showing that the plaintiff fell establishes nothing. Proof of nothing more than the occurrence of plaintiff's fall is insufficient to establish defendant's negligence. To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer's safety which he is not in this state." (Citations and punctuation omitted.) Coffey v. Wal-Mart, supra at 828(2), 482 S.E.2d 720.

In this case, Adams' proof amounts to nothing more than she slipped and fell on the hanger while shopping at Sears. This is not sufficient to satisfy either prong of the test established in Alterman Foods. There is no evidence showing, nor any evidence from which it can be inferred, that Sears had actual or constructive knowledge of the hanger. Therefore, summary judgment could have been properly granted on the first prong of Alterman Foods.

Also, no evidence shows that for any reason attributable to Sears Adams was prevented from knowing of the hanger. Her only excuse for not seeing the hanger is that she was distracted by looking at the dresses. As the trial court correctly pointed out, this is not a valid reason. Harper v. Kroger Co., 212 Ga.App. 570, 571, 443 S.E.2d 7, citing Redding v. Sinclair Refining Co., 105 Ga.App. 375, 378-379, 124 S.E.2d 688. Moreover, even if there were some question about the propriety of granting summary judgment on this second prong of the Alterman Foods standards, there is no evidence showing that Sears had actual or constructive knowledge that the hanger was on the floor, and consequently the grant of summary judgment could be affirmed properly on that ground. Malaga Mgmt. Co. v. John Deere Co., supra. Adams simply failed to satisfy her obligations as a respondent to a motion for summary judgment under Lau's Corp. v. Haskins, supra. Accordingly, the trial court did not err by granting summary judgment to Sears.

4. Although the dissent seeks to avoid the reach of Alterman Foods v. Ligon, this cannot be done. "The Supreme Court of Georgia has not rejected or revised Alterman Foods. Therefore, the Alterman Foods standards are binding on this Court even though some may believe there is a better concept for allocating the burdens on the parties in these cases. "The decisions of the Supreme Court shall bind all other courts as precedents." Ga. Const.1983, Art. VI, Sec. VI, Par. VI; Coffey v. Wal-Mart, [supra at 827, 482 S.E.2d 720]." Hartley v. Macon Bacon Tune, 227 Ga.App. 679, 682, 490 S.E.2d 403 (1997).

5. Further, the dissent's attempt to deem the guidance on foreign substance cases in Alterman Foods v. Ligon as mere dicta has recently been rejected by this Court. Hartley v. Macon Bacon Tune, supra. Consequently, the principles established in Alterman Foods v. Ligon cannot be swept aside and Alterman Foods v. Ligon remains the controlling precedent in the area of slip and fall cases. Hartley v. Macon Bacon Tune, supra.

6. In the same manner, the effort to limit Alterman Foods v. Ligon by establishing new categories of foreign substance slip and fall cases and then redefining what must be established to prove a cause of action in each of them must also fail. Hartley v. Macon Bacon Tune, supra. The classifications the dissent proposes all fall within the categories considered in Alterman Foods. "In the majority of the so-called 'slip and fall' cases the plaintiff alleges either that he slipped on a foreign substance--grit, vegetable leaves, trash, objects which have fallen from store shelves, etc.--on defendant's floor, or...