BBB Service Co., Inc. v. Glass

• Decision Date: 09 September 1997
• Docket Number: No. A97A1069,A97A1069
• Citation: 491 S.E.2d 870,228 Ga.App. 423
• Parties: , 97 FCDR 3333 BBB SERVICE COMPANY, INC. et al. v. GLASS.
• Court: Georgia Court of Appeals

Page 870

491 S.E.2d 870

228 Ga.App. 423, 97 FCDR 3333

BBB SERVICE COMPANY, INC. et al. v. GLASS.

No. A97A1069.

Court of Appeals of Georgia.

Sept. 9, 1997.

Certiorari Denied Jan. 8, 1998.

P/C Concurring Opinion

Bentley, Karesh & Seacrest, Gary L. Seacrest, Gerald P. Ruleman, Atlanta, for appellants.

Hart & McIntyre, George W. Hart, Thomas W. Thrash, Jr., Atlanta, for appellee.

ELDRIDGE, Judge.

As an alleged result of negligent maintenance, appellee Shirley Glass slipped and fell in a restaurant owned and operated by appellants BBB Service Company, Inc. and Dale Seefeldt d/b/a Wendy's Old Fashioned Hamburgers; her hip was broken in the fall. Appellee brought suit against appellants for actual and punitive damages, contending that, due to the alleged improper maintenance, appellants were actively negligent in operating the restaurant with unsafe, slippery, and defective floors, and that appellants knew of the condition but failed to remedy it. Appellants' subsequent motion for summary judgment was denied by the trial court, which found that material issues of fact existed that should be tried to a jury. We granted appellants' application for review and take this opportunity to affirm the order of the trial court and explain the evidentiary posture of the instant case which distinguishes it from those cases cited by appellants, Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980), and Hall v. Cracker Barrel Old Country Store, 223 Ga.App. 88, 476 S.E.2d 789 (1996). Pertinent to appellee's complaint, the facts of record are as follows.

After eating lunch at Wendy's, appellee walked down a brick tile hallway to the restroom area; she slipped and fell just outside the ladies' restroom door, where there was nothing visible on the floor to warn appellee of danger. ¹ Appellee testified that, while lying on the floor unable to get up, she ran her hand over the brick tile and noticed that the floor felt "very slick"; earlier, appellee had noted and then disregarded a slippery spot on the floor in a different area of the restaurant. Jean Brown, appellee's co-worker, testified that she came to appellee's aid, and "I ran my foot over the floor, and I had on rubber-soled flat shoes, and I noted that the floor was slippery"; earlier, Brown had skidded on the floor as she was walking to a table.

The manager of Wendy's, Bruce Payton, approached to render aid to appellee. Brown and appellee questioned him about the slippery condition of the floor and its danger to customers. According to Brown's testimony, Bruce Payton agreed that the floors were slippery. "[H]e said it was something they put on the floors, that Wendy's has them put on the floors, but it wasn't wax.... He didn't say how long ago it was, but that he had talked to, I guess you call it the corporate office, about the floors, about the condition of the floors, but that they did not feel that there was any need to make any changes."

Appellee Glass also testified that Bruce Payton had agreed that the floors were slippery. "He named some chemical. I don't remember exactly what he said the chemical was that they put on the floors.... He said, we have talked to the corporate office before about the floors, and they will not do anything about them.... They [corporate office] were going to continue doing the same thing that they were doing and they would not change the floors."

In support of its summary judgment motion, appellants offered the testimony of restaurant manager Bruce Payton, who denied that he had ever made any statements to appellee or Brown regarding the floor, its condition, or its maintenance, and denied making any statements concerning conversations with Wendy's corporate office. Payton also testified that the "policy" for floor maintenance at the restaurant "is pretty consistent with Wendy's International." Payton testified regarding the Wendy's International "policy and procedures" for sweeping, mopping, and cleaning the floor: "[t]he floors are cleaned at night after close with Power Foam, deck brushed, which means scrubbed, and then it's squeegeed off and dry mopped. It's dry mopped again the next morning before we open around 9:00 o'clock." Bruce Payton stated that store employees do the mopping, sweeping, and vacuuming.

Appellants also submitted the affidavit of Jack Helton, vice president of the company that manufactures and distributes Power Foam, regarding the composition, properties, and proper usage of the product. Helton testified that Power Foam is a commercial degreaser, which acts to "emulsify and neutralize dirt and grease from hard surfaces"; obviously, such product creates an emulsion of grease and dirt when it is applied to the floor. Helton testified regarding the proper removal of Power Foam, which entails "removal with squeegee and rinsing with clear water"; clearly, subsequent dry mopping would simply spread the grease emulsion, if it is not first removed properly. ² Helton testified that Power Foam contains no properties, in and of itself, that would cause a floor to become slippery; however, the non-slippery character of the degreaser itself would be irrelevant if the resultant greasy emulsion is not properly removed, which event could support a claim of active negligence.

Further, in response to appellee's interrogatory "[i]dentify defendants' maintenance practice in sweeping, mopping and surfacing/waxing the flooring in the area where plaintiff fell," appellants responded that "[t]he floor in this area is cleaned with warm water and a degreaser. During regular business hours, we sweep the floors hourly and dry mop spills immediately using only clear warm water. Then in the late afternoon we dry mop all floors. The brick tile are not waxed." Held:

Trial and appellate judges should not take summary judgment lightly, for what is at stake is of constitutional magnitude. "When a trial court or appellate court determines that summary judgment or a directed verdict is appropriate, it is in effect a determination that a party is not entitled to his or her right to a trial by jury even after a demand for jury trial has been made. See Ga. Const. of 1983, Art. I, Sec. I, Par. XI; OCGA 9-11-38." Service Merchandise v. Jackson, 221 Ga.App. 897, 899, 473 S.E.2d 209 (1996); see Lingo v. Kirby, 142 Ga.App. 278, 236 S.E.2d 26 (1977).

On a motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of material fact is upon the movant. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991) (to prevail at summary judgment, "the moving party must demonstrate that there is no genuine issue of material fact" (emphasis supplied)); accord Alterman Foods, supra at 625, 272 S.E.2d 327; Hall, supra at 89, 476 S.E.2d 789. ³ This has often been referred to as "piercing" the allegations of the complaint, which is an apt metaphor since, if accomplished, the life of the complaint is in jeopardy through such exposure. This burden placed upon the movant "may be," if it can be, discharged by pointing out by reference to the record that there is an absence of evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. Lau's Corp., supra at 491, 405 S.E.2d 474.

Contrary to the opinion of the special concurrence, ⁴ the Supreme Court of Georgia's decision in Lau's Corp. did not, and could not, alter the statutory burden and showing that must be made in order to prevail at summary judgment, i.e., a defendant's burden to demonstrate the nonexistence of a genuine issue of material fact in support of an essential element of plaintiff's claim. OCGA § 9-11-56(c). Such alterations must be accomplished through the legislative process, not though judicial mandate. Oxford v. J.D. Jewell, Inc., 215 Ga. 616, 620-621, 112 S.E.2d 601 (1960); Beall v. Beall, 8 Ga. 210, 228-229 (1850).

What Lau's Corp. did do that may be considered a "watershed" is establish the precedent that a defendant may meet its burden of demonstrating the nonexistence of a material issue of fact by showing an absence of evidence of record in support of an essential element of the plaintiff's claim. ⁵ Lau's Corp., supra at 495, 405 S.E.2d 474. The Lau's Corp. Court reasoned that, since a defendant is not required to produce evidence at trial which affirmatively negates (proves the opposite of) an essential element of the plaintiff's case, he should not be required to put forward such evidence as movant in a motion for summary judgment in order to disprove plaintiff's case. Lau's Corp., supra at 495, 405 S.E.2d 474. Prior to Lau's Corp., our appellate courts placed upon the defendant a burden to "affirmatively" and "conclusively" negate an element of the plaintiff's case. See, e.g., Ryder Truck Rental v. Carter, 189 Ga.App. 43, 44, 374 S.E.2d 830 (1988) (defendant has the "burden of negating conclusively at least one of the essential elements of the plaintiff's case"); Corbitt v. Harris, 182 Ga.App. 81, 83, 354 S.E.2d 637 (1987) (defendant has "additional burden of piercing the plaintiff's pleadings and affirmatively negating one or more essential elements of the complaint"); accord Fort v. Boone, 166 Ga.App. 290, 291, 304 S.E.2d 465 (1983). Thus, Lau's Corp. changed how a defendant may discharge his statutory burden, but did not alter the fact that he must discharge his statutory burden in order to prevail on summary judgment. It was the requirement of negating an element of the plaintiff's case through the production of "affirmative, conclusive" evidence and the line of cases standing therefor that was overruled in Lau's Corp. at 495, 405 S.E.2d 474, not the statutory burden compelling the defendant to demonstrate the nonexistence of an issue of material fact in support of an essential element of plaintiff's claim, which burden is discussed in Lau's Corp. at 491. Repeated efforts in decisions authored by the special concurrence to combine the two discussions and concepts on pages 491 and 495 of Lau's...