Broomberg v. Hudgens

• Decision Date: 02 December 1992
• Docket Number: No. A91A0767,A91A0767
• Parties: BROOMBERG et al. v. HUDGENS et al.
• Court: Georgia Court of Appeals

Page 617

426 S.E.2d 617

206 Ga.App. 797

BROOMBERG et al. v. HUDGENS et al.

No. A91A0767.

Court of Appeals of Georgia.

Dec. 2, 1992.

Reconsideration Denied Dec. 17, 1992.

Certiorari Denied April 8, 1993.

J. Carol Sherwood, Jr., Valdosta, for appellants.

Dillard, Landers & Bower, Daniell S. Landers, Bryant H. Bower, Jr., Robert W. Lamb, Waycross, Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, Valdosta, for appellees.

CARLEY, Presiding Judge.

Seeking to recover for injuries sustained as the result of her slip and fall, appellant-plaintiff and her husband filed the instant action against appellee-defendants. Appellees filed separate motions for summary judgment and, relying upon Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986), they urged that certain testimony given by appellant in the instant tort action did not comport with the testimony that had been given by her in a previous workers' compensation proceeding. Appellees' motions were granted and appellants appealed. We reversed because the "self-contradictory testimony" rule had previously been limited to a consideration of such testimony as had been given within the parameters of a single proceeding and the Supreme Court had not intimated in Prophecy Corp. that that limitation was no longer viable. " 'The conflicts alleged here by (appellees) were as to (purportedly) conflicting testimony given on previous occasions (other than in the instant case).' [Cit.]" Broomberg v. Hudgens, 201 Ga.App. 524, 525, 411 S.E.2d 521 (1991). On certiorari, however, the Supreme Court reversed, concluding that Prophecy Corp. "does not contain the limitation applied by the Court of Appeals...." Hudgens v. Broomberg, 262 Ga. 271, 272(3), 416 S.E.2d 287 (1992). The instant case is now before this court pursuant to the remand of the Supreme Court to take such further action as may be necessary.

1. The prior judgment of this court holding that there is a limitation on the applicability of Prophecy Corp. is vacated and the judgment of the Supreme Court holding that there is no such limitation is hereby made the judgment of this court. Although the Supreme Court did not indicate which prior holdings it considered to have been overruled by Prophecy Corp., we would note for the benefit of the bench and bar that a list of such overruled cases would apparently include: Renew v. Edenfield, 200 Ga.App. 484, 486(3), 408 S.E.2d 499 (1991); Slaton Mach. Sales v. Owens-Ill., 138 Ga.App. 80, 82(3), 225 S.E.2d 473 (1976); and, Branan v. La Grange Truck Lines, 94 Ga.App. 829, 846(3), 96 S.E.2d 364 (1956).

2. We turn to the issue of whether, under Prophecy Corp. as interpreted by the Supreme Court, appellees were entitled to summary judgment based upon appellant's alleged self-contradictory testimony. The initial determination must be whether appellant's testimony was self-contradictory.

According to the allegations of the complaint in the instant case, the dangerous condition which caused the slip and fall was a smooth concrete floor which was slippery because it was wet from a recent mopping. Accordingly, this is not a foreign substance case, but a damp and slippery mopped floor case. Alterman Foods v. Ligon, 246 Ga. 620, 623-624, 272 S.E.2d 327 (1980). Consistent with the complaint, appellant gave testimony in the instant case to the effect that she had fallen because the floor was wet. Appellees urge, however, that this testimony attributing her fall to the wetness of the floor is not consistent with her testimony in the prior workers' compensation proceeding, wherein she had not mentioned the wetness of the floor and had given a negative response when asked if she had fallen "on anything in particular."

There is no inconsistency whatsoever between appellant's prior and instant testimony when it is recognized that this is not a foreign substance case. It is entirely consistent for appellant to have testified in the workers' compensation case that she did not fall "on anything in particular," but to testify in the instant case that she nevertheless did slip on an unobstructed floor which was extremely slippery because it had recently been mopped and was wet.

Moreover, appellees were not parties to the workers' compensation proceeding and the sole issue therein was whether appellant had suffered a work-related injury. Accordingly, the question that was asked of appellant in that proceeding could reasonably have been constructed as a limited inquiry concerning the nature of her injury and whether, when she slipped, she had fallen on and injured any "particular" part of her body. Appellant indicated that she had construed the question as just such an inquiry and that her negative response meant only that, when she had slipped on the wet floor, she had fallen on and injured no "particular" portion of her body more than any other.

Appellees urge the existence of another inconsistency because, in the workers' compensation proceeding, appellant had also been asked: "Did you notice anything on the floor there?" Her response was: "It's just real slick. It always is." Appellees urge that, by failing to specify that the floor was slippery because it was wet, appellant's prior testimony is not consistent with her instant testimony attributing her fall to the wetness of the floor.

Again, however, it must be recognized that this is not a foreign substance case and that the question did not specifically ask appellant whether she had noticed anything on the floor after she had fallen. Accordingly, the question can readily be construed as an inquiry concerning appellant's observationsbefore she fell and her response as indicating that she had seen no foreign substance, but had been crossing an unobstructed concrete floor which, in her experience, is always slick to some degree. Thus, there would be no inconsistency with her testimony in the instant case attributing her fall to a floor which had been...