Barentine v. Kroger Co.
| Decision Date | 31 May 1994 |
| Docket Number | No. S94G0308,S94G0308 |
| Parties | BARENTINE v. The KROGER COMPANY. |
| Court | Georgia Supreme Court |
John G. Blackmon, Jr., Drew, Eckl & Farnham, Atlanta, for Dale D. Barentine.
Douglas A. Wilde and Gregory H. Wheeler, Webb, Carlock, Copeland, Semler & Stair, Atlanta, for The Kroger Co.
We granted certiorari in this case, The Kroger Co. v. Barentine, 210 Ga.App. 795, 437 S.E.2d 629 (1993), to consider whether the Court of Appeals correctly applied the rules applicable to the contradictory testimony of a party witness, Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986). We conclude that it did not correctly apply one of those rules and thus erred by ruling that the trial court should have granted The Kroger Company's motion for a directed verdict.
Barentine, 210 Ga.App. at 795, 437 S.E.2d 629. In his deposition, Barentine testified that he could have seen the clear liquid if he had been looking down towards it as he walked toward the check-out counter. At trial, however, Barentine stated that he could not have seen the clear liquid if he had been looking down at it as he walked toward the check-out counter. The Court of Appeals ruled that these statements were in conflict concerning whether Barentine could have seen the liquid if he had been looking down, and had to be construed against him. Id. at 795-96, 437 S.E.2d 629. Further, citing the rule that " '[w]here the favorable portion of a party's self-contradictory testimony is the only evidence of his right to recover ... the opposing party is entitled to a directed verdict[,] ' " id. at 796, 437 S.E.2d 629 (quoting Prophecy, 256 Ga. at 28, 343 S.E.2d 680) the Court of Appeals held that the favorable portion of Barentine's testimony was the only evidence to satisfy one of the elements of his slip and fall action--that he had exercised reasonable care for his own safety, see Food Giant v. Cooke, 186 Ga.App. 253, 257(2), 366 S.E.2d 781 (1988)--and that the trial court erred by denying Kroger's motion for a directed verdict. Barentine, 210 Ga.App. at 796, 437 S.E.2d 629.
We agree with the Court of Appeals that the portions of Barentine's testimony set forth above are contradictory and had to be construed against Barentine, as no reasonable explanation was offered to explain the contradiction. Prophecy, 256 Ga. at 30, 343 S.E.2d 680. However, we disagree that the favorable portion was the only evidence that Barentine exercised reasonable care for his own safety. At his deposition and at trial, Barentine maintained he in fact was not looking down at the floor as he...
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