Brown v. Amerson

• Decision Date: 22 February 1996
• Docket Number: No. A95A2451,A95A2451
• Citation: 469 S.E.2d 723,220 Ga.App. 318
• Parties: BROWN v. AMERSON et al.
• Court: Georgia Court of Appeals

Page 723

469 S.E.2d 723

220 Ga.App. 318

BROWN v. AMERSON et al.

No. A95A2451.

Court of Appeals of Georgia.

Feb. 22, 1996.

Sell & Melton, Mitchell P. House, Jr., Robert D. McCullers, Macon, for appellant.

Miller & Towson, Craig N. Cowart, Macon, for appellees.

ANDREWS, Judge.

Brown's wife slipped and fell in the parking lot of the branch of Great Southern Federal Savings and Loan Association (Great Southern) located in the Summit Center Shopping Center (Summit Center). Brown sued the owners of Summit Center for loss of consortium with his wife resulting from the fall, claiming the defendant owners negligently failed to keep the premises in a safe condition for invitees. Brown appeals from the trial court's grant of summary judgment in favor of the defendants.

Mrs. Brown deposed that she was going to transact business at the Great Southern branch at Summit Center. She parked her car in a parking space adjacent to the branch office, got out of her car, took one step toward the office, and slipped and fell and broke her ankle. She testified it was misty at the time and that she slipped on the pavement on a "combination of moisture and oil from the previous cars parked there." When asked how she knew that was what she slipped on, she responded: "Well, it was misting that day and I do have knowledge that when there is moisture in the air and on the pavement that oil from parking lots and asphalt go straight to the top." When asked if she was able to observe anything that caused her to slip and fall, Mrs. Brown said, "No." Upon further questioning, she admitted she did not know specifically what caused her to slip and fall.

"Q: I think you told me that you don't know specifically what it was that caused you to fall on this occasion? A: I don't know specifically, no. Q: And you didn't--what I mean by that is you didn't look down and see something and observe and say that's what I--. A: No, I didn't. Q: And do you know whether there was a hole in the pavement or if there was just a surface there that was slippery? A: At the time of the fall? Q: Right. A: No."

Mrs. Brown further testified that she was not looking down at where she stepped when she slipped and fell and that she did not know exactly where in the parking lot she slipped and fell. She was only able to identify a ten- to fifteen-foot-wide area in the parking lot where she believed she slipped and fell.

After his wife's deposition, and in response to the defendants' motion for summary judgment, Brown filed an affidavit from his wife in which she stated that, "I slipped because the moisture and oil which had accumulated on the pavement made the pavement extremely slippery...." She further explained in her affidavit that, when she said in her deposition that she did not know specifically what caused her to slip, "I was trying to state and at that time understood that I was communicating that I did not know what caused my fall more specifically than I had testified to already during the deposition." The affidavit continued: "That is, the extreme slipperiness of the parking lot caused by the accumulated oil and water on it caused my fall. My understanding of the questions asked at the deposition was that they sought information as to whether some other specific thing or item in the parking lot, besides the general extreme slipperiness, was the cause of my fall. I could not identify any other such cause because I did not see any other thing which could have been the cause." Mrs. Brown further stated in her affidavit: "[W]hile I appreciated some risk due to the misting conditions and the usual presence of some oil in parking lots and therefore exercised caution and used my vision to look around for any obstructions or dangers, I did not expect or appreciate the extremely slippery condition I encountered on that parking lot. While I could not identify later specifically where in the parking lot I fell, I know, because of the way I fell and how the parking lot felt as my foot slipped out from under me that the fall resulted from the unusually slippery condition of the parking lot, a condition I did not expect."

Mrs. Brown's deposition testimony clearly indicates that she did not observe anything which caused her to slip and fall, and she did not know of any specific thing which caused her to slip and fall. Her deposition testimony that she slipped on a combination of moisture from the misty conditions and oil from the previous cars parked there is pure speculation supported only by her statement that "I do have knowledge that when there is moisture in the air and on the pavement that oil from parking lots and asphalt go straight to the top." This statement amounts to no more than a guess or speculation by Mrs. Brown as to what may have caused her to slip and fall. Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. Brumbelow v. City of Rome, 215 Ga.App. 321, 322, 450 S.E.2d 345 (1994); Jiffy Store v. Bishop, 190 Ga.App. 716, 717, 379 S.E.2d 602 (1989). Accordingly, the deposition did not provide evidence that Mrs. Brown slipped on water and oil in the parking lot. Rather, it established that she did not see or otherwise know of what caused her to slip and fall.

To the extent Mrs. Brown's subsequently filed affidavit attempts to establish otherwise by stating that she slipped on accumulated...