Alterman Foods, Inc. v. Cathcart

• Decision Date: 16 November 1984
• Docket Number: No. 68727,68727
• Parties: ALTERMAN FOODS, INC., v. CATHCART.
• Court: Georgia Court of Appeals

Page 513

324 S.E.2d 513

172 Ga.App. 809

ALTERMAN FOODS, INC., v. CATHCART.

No. 68727.

Court of Appeals of Georgia.

Nov. 16, 1984.

Rehearing Denied Dec. 3, 1984.

Certiorari Denied Jan. 24, 1985.

James C. Gaulden, Jr., Atlanta, for appellant.

Charles E. Muskett, East Point, for appellee.

McMURRAY, Chief Judge.

This is a slip and fall case. Plaintiff fell as she entered defendant's supermarket resulting in certain injuries. At trial the jury returned a verdict in favor of plaintiff in the amount of $43,541.75 ($40,000 general damages; $3,541.75 special damages). Defendant appeals. Held:

1. Defendant contends that the verdict is not authorized by the evidence presented at trial. Plaintiff's evidence shows that at the entrance to defendant's supermarket was an automatic door with a metal threshold. After plaintiff fell her son noticed that the threshold was loose. The manager of the supermarket testified that he was not aware anything was wrong with the threshold at the time of plaintiff's injuries, but acknowledged that prior to plaintiff's injury the threshold in question had "worked loose" repeatedly (screws securing the threshold would come out) and that the threshold had been repaired 10 or 15 times. Plaintiff testified that as she approached the threshold she did not see any indication of a hazard, nor anything unusual. Thus, plaintiff has presented evidence as to the two elements of a slip and fall case (1) fault on the part of defendant and (2) ignorance of the danger on the part of plaintiff. Moss v. Atlanta Housing Auth., 160 Ga.App. 555, 287 S.E.2d 619; Johnson v. Ga. Kraft Co., 167 Ga.App. 585, 586(2), 307 S.E.2d 103. See also Joyner v. Sandefur Mgt. Co., 168 Ga.App. 854, 856(3)(a), 310 S.E.2d 578.

Defendant contends that plaintiff failed to carry her burden of proof that any negligence, act or omission of defendant was the proximate cause of her fall in the store. "[W]here no theory of causation at all is established by the evidence there can be no recovery." Lewis v. Drake, 116 Ga.App. 581, 582, 158 S.E.2d 266. However, the record discloses that the plaintiff demonstrated to the jury the manner in which she fell and the demonstration was conducted in relation to an imaginary threshold. The following occurred during direct examination of plaintiff: "Q. Now, just tell the jury how you fell. Now, you may come down and demonstrate it. Perhaps it would be better than the words. A. Yes, I probably can. Q. Let this be the threshold from this court reporter to me, imagine there is a piece of metal across--do you understand what I'm driving at? A. Okay. Q. Here, let me make a better--there is a pointer here somewhere. Let this be a threshold. All right. Just tell the members of the jury how it happened. A. Okay. I walk in and I step and fell like that. Q. All right. A. And my head hit the floor. Q. All right. Now you may get up."

"There is a presumption in favor of the regularity and legality of all proceedings in superior court. [Cits.]" Murer v. Howard, 165 Ga.App. 230, 299 S.E.2d 151. The burden is on the party who asserts error to show it affirmatively by the record. Myers v. Dept. of Human Resources, 162 Ga.App. 885, 886, 293 S.E.2d 480; Smith v. Mack, 161 Ga.App. 95, 96, 289 S.E.2d 299. In determining whether the evidence is sufficient to support a verdict, we must construe all evidence and every presumption and inference arising therefrom most favorably toward upholding the verdict. Gilman Paper Co. v. James, 235 Ga. 348, 350, 219 S.E.2d 447; Pepsi-Cola Bottling Co. of Dothan, v. First Nat. Bank of Columbus, 248 Ga. 114, 115(1), 281 S.E.2d 579. Insofar as the transcript of the trial is incomplete in that it fails to set forth the nature of plaintiff's demonstrative evidence vis a vis the (imaginary) threshold we must presume that evidence was presented sufficient to sustain the jury's finding of proximate cause. Siegel v. Gen. Parts Corp., 165 Ga.App. 339, 340(2), 301 S.E.2d 292; Stefan Jewelers, Inc. v. Berry, 163 Ga.App. 626(2), 295 S.E.2d 373; Jackson v. Jackson, 243 Ga. 338, 253 S.E.2d 758.

Plaintiff had given a history, to a urologist who treated her, of having fallen on her pubis. The urologist responding to a hypothetical question which described plaintiff's fall as "on her lower abdominal or lower stomach area," testified that in his opinion within a reasonable degree of medical certainty plaintiff's fall aggravated plaintiff's previous bladder difficulty. Any conflicts in the evidence were resolved in favor of plaintiff. Gen. Trailer Services v. Young Engineering, 149 Ga.App. 721, 722(3), 256 S.E.2d 35; Kent v. Hunt &...