Best v. Dublin Eye Associates, P.C.

• Court: Georgia Court of Appeals
• Writing for the Court: BANKE; BIRDSONG, C.J., and BEASLEY
• Citation: Best v. Dublin Eye Associates, P.C., 372 S.E.2d 495, 188 Ga.App. 225 (Ga. App. 1988)
• Decision Date: 06 September 1988
• Docket Number: No. 76724,76724
• Parties: BEST v. DUBLIN EYE ASSOCIATES, P.C. et al.

Page 495

372 S.E.2d 495

188 Ga.App. 225

BEST v. DUBLIN EYE ASSOCIATES, P.C. et al.

No. 76724.

Court of Appeals of Georgia.

Sept. 6, 1988.

M.O. Strickland, Vidalia, for appellant.

Wilson R. Smith, Vidalia, for appellees.

BANKE, Presiding Judge.

The appellant sued the appellees to recover for personal injuries which she allegedly sustained when she slipped and fell on a rubber mat while exiting medical offices owned and occupied by the appellees. She appeals the grant of the appellees' motion for summary judgment.

The appellant fell while traversing an outside walkway which sloped downward from the medical building to the parking lot. The walkway was at least partially covered by a plastic or rubber mat containing small protruding tips or "spikes," which allegedly were partially worn down. It was a rainy day, so both the mat and the walkway were wet. The appellant had ascended the walkway without incident upon entering the building but testified that when she stepped on the mat on her way back to the parking lot, her feet went out from under her, causing her to fall on her back and buttocks. The trial court granted summary judgment to the appellees based in part upon the appellant's inability to specify whether her feet had slipped on the mat or whether the mat had slipped on the walk, and based in part upon its conclusion that her knowledge of the danger presented by the mat and the walkway was at least equal to that of the appellees. Held:

The burden of proof on motion for summary judgment is always on the movant, even with respect to issues on which the opposing party would have the burden of proof during the trial of the case. See Ham v. Ham, 230 Ga. 43, 45, 195 S.E.2d 429 (1973); Henderson v. Atlanta Transit Sys., 133 Ga.App. 354, 356, 210 S.E.2d 845 (1974). In ruling on the motion, all evidentiary conflicts and doubts are to be resolved against the movant, and any vagueness or uncertainty in the opposing party's testimony will be construed in his or her favor unless that testimony is contradictory and he or she is unable to provide a reasonable explanation for the contradiction. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986). See also Burnette Ford v. Hayes, 227 Ga. 551, 181 S.E.2d 866 (1971).

Although the appellant in the present case was unable to specify whether her feet had slipped on the mat or whether the mat had slipped on the walkway, her testimony was not contradictory in this regard. She consistently maintained that she had fallen because her feet, for whatever reason, suddenly went out from under her when she stepped on the mat on her way back down to the parking lot; and regardless of whether she slipped on the mat or slipped on the walkway, her account of the accident is fully consistent with her allegation that she fell because the mat was defective. Also, since the appellees were responsible for the placement and maintenance of the mat, the evidence of record supports (or at least does not negate) a finding that they had superior actual or constructive knowledge of the existence of the alleged defect and the danger presented thereby.

Such cases as Bowman v. Richardson, 176 Ga.App. 864, 338 S.E.2d 297 (1985), Colbert v. Piggly Wiggly Southern, 175 Ga.App. 44, 332 S.E.2d 304 (1985), and Brownlow v. Six...