Bruno's Food Stores, Inc. v. Taylor

• Decision Date: 09 September 1997
• Docket Number: No. A97A1395,A97A1395
• Citation: 491 S.E.2d 881,228 Ga.App. 439
• Parties: , 97 FCDR 3341 BRUNO'S FOOD STORES, INC. v. TAYLOR.
• Court: Georgia Court of Appeals

Page 881

491 S.E.2d 881

228 Ga.App. 439, 97 FCDR 3341

BRUNO'S FOOD STORES, INC. v. TAYLOR.

No. A97A1395.

Court of Appeals of Georgia.

Sept. 9, 1997.

Jones, Cork & Miller, Timothy Harden III, Macon, for appellant.

Sims, Fleming & Spurlin, Robert D. Bryan, Tifton, for appellee.

ELDRIDGE, Judge.

Appellee Patricia Lucille Taylor brought suit against appellant Bruno's Food Stores, Inc. d/b/a FoodMax ("FoodMax") for actual damages, contending that FoodMax was actively negligent in allowing or causing its floor to be wet and by failing to post proper warning signs to alert its patrons, including appellee, of the danger.

The facts of the case sub judice show that appellee entered FoodMax in Tifton, Georgia at approximately 10:30 p.m. on May 4, 1994, to buy groceries and other items. After appellee obtained a shopping buggy, she proceeded toward the direction of the meat department. Appellee was paying attention to where she was going; however, when she reached the floral area and started to turn left, as she was pushing her buggy into the intersecting aisle, she took the opportunity to look at the plants as she "rolled by." Appellee testified that she was walking normally when her right foot slipped. Appellee hit her left knee on the floor and then went down on her other knee as she continued to hold onto the buggy. Appellee did not let go of the shopping buggy until she stood up. At the time of appellee's slip and fall, she was wearing slacks and Reebok tennis shoes.

Appellee did not see any moisture on the floor prior to her fall. However, after appellee stood up, she noticed that both of her pant legs were damp. Appellee then carefully examined the floor in the area of her fall and discovered a strip of damp surface about six inches in width and approximately three to five feet in length, which extended into the area where she had fallen. Appellee did not observe any standing water, but could now see a difference in the sheen on the floor where it was damp. After her fall, appellee noticed that the floor was being cleaned by a man in the produce department, which was in a separate department from where she had fallen. It is uncontroverted that, at the time of appellee's fall, FoodMax's floor was being cleaned by an employee of United Floor Maintenance Company ("United Maintenance").

FoodMax appealed from the trial court's order denying its motion for summary judgment and, in three enumerations of error, alleges that appellee failed to meet her burden of proof as established in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), by presenting sufficient evidence to make out both elements of a prima facie slip and fall case as set forth in Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980) i.e., that there is no evidence in the record by which appellee could show that appellant had actual or constructive knowledge of the foreign substance or the hazard which allegedly caused her to fall, as the only person in the area, besides appellee, was not an employee of appellant but, rather, was an individual employed by an independent floor care company; that there is no evidence to which appellee could point that would show how long the alleged hazard existed prior to her fall; and that the evidence established that appellee failed to exercise ordinary care for her own safety.

The foreign substance analysis set forth in Alterman Foods is not appropriate in this case. Even if such foreign substance analysis was not mere dicta, see Alterman Foods, supra at 622, 272 S.E.2d 327, such analysis would not apply in the case sub judice, because the slip and fall was caused by a liquid cleaning compound intentionally placed on the floor, not by a foreign substance. Id. at 623-624, 272 S.E.2d 327. Therefore, this Court will treat appellant's enumerations of error as a failure of appellee to meet her burden of proof as established in Lau's Corp. v. Haskins, supra.

On a motion for summary judgment under OCGA § 9-11-56, the defendant, as the moving party, may prevail by "piercing the plaintiff's pleadings," i.e., demonstrating that the plaintiff will be unable to prevail at trial, even when all doubts are resolved in favor of the plaintiff, because there is no issue of material fact as to at least one essential element of the plaintiff's prima facie case. OCGA § 9-11-56(c); Lau's Corp. v. Haskins, supra; Greenforest Baptist Church v. Shropshire, 221 Ga.App. 465, 471 S.E.2d 547 (1996); Crosson v. Lancaster, 207 Ga.App. 404, 427 S.E.2d 864 (1993). The defendant, who will not bear the burden of proof at trial, may accomplish this either (1) by presenting evidence which negates an essential element of the plaintiff's claim, i.e., affirmatively disproving the element with evidence which makes it impossible for the plaintiff to prove the element at trial, or (2) by showing "an absence of evidence to support the [plaintiff's] case" as to any essential element. Lau's Corp., supra at 491, 495, 405 S.E.2d 474; see, e.g., Caven v. Warehouse Home Furnishings Distrib., 209 Ga.App. 706, 707, 434 S.E.2d 532 (1993). However, a defendant may not prevail simply by presenting contradictory evidence, as such evidence serves only to create an issue for jury resolution. Davis v. Piedmont Hosp., 222 Ga.App. 97, 473 S.E.2d 531 (1996); Service Merchandise v. Jackson, 221 Ga.App. 897, 473 S.E.2d 209 (1996). Further, all reasonable inferences from the evidence presented must be given in favor of the plaintiff, as the nonmoving party; a trial court is precluded from drawing negative inferences against the plaintiff from evidence presented by a defendant on a motion for summary judgment. ¹ See Lau's Corp., supra; Millar Elevator Svc. Co. v. O'Shields, 222 Ga.App. 456, 475 S.E.2d 188 (1996); Service Merchandise, supra; Harvey v. McLaughlin, 198 Ga.App. 105, 400 S.E.2d 635 (1990); Holland v. Sanfax Corp., supra at 5. If the defendant is able to pierce the plaintiff's pleadings by showing that no jury issue exists as to an essential element of the plaintiff's claim, the burden of production shifts to the plaintiff, i.e., the plaintiff will survive summary judgment by presenting any evidence which establishes a jury issue regarding that element. See OCGA § 9-11-56(e); Lau's Corp., supra. Even slight evidence will be sufficient to satisfy the plaintiff's burden of production on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from the evidence presented. ² See Stuckey Diamonds v. Jones, 195 Ga.App. 351, 393 S.E.2d 706 (1990); Mealer v. Gen. Cinema Beverages of Ga., 190 Ga.App. 419, 379 S.E.2d 192 (1989). Further, the plaintiff is not required "to respond to issues which are not raised in the motion for summary judgment or to present [her] entire case on all allegations in the complaint." Hodge v. SADA Enterprises, 217 Ga.App. 688, 690, 458 S.E.2d 876 (1995). Therefore, under Lau's Corp., supra, the defendant is entitled to summary judgment if it is able to pierce the plaintiff's pleadings as to any material element and the plaintiff is unable to respond with any evidence to create a jury issue as to that element.

However, even if a defendant is unable to pierce the plaintiff's pleadings, it may still prevail at summary judgment by presenting evidence which establishes a prima facie affirmative defense. In so doing, the defendant, as the moving party seeking summary judgment, may not rely on inferences from the evidence presented, as all inferences must be drawn in favor of the plaintiff, as the nonmoving party. Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the burden of production of some evidence shifts to the plaintiff, who will survive summary judgment by presenting any evidence which creates a disputed material issue of fact for the jury to decide as to an element of the affirmative defense. See Barentine v. Kroger Co., 264 Ga. 224, 225, 443 S.E.2d 485 (1994); Lau's Corp., supra; Hornbuckle Wholesale Florist, etc. v. Castellaw, 223 Ga.App. 198, 200, 477 S.E.2d 348 (1996) (McMurray, P.J., dissenting); J.H. Harvey Co. v. Edwards, 219 Ga.App. 697, 698, 466 S.E.2d 246 (1995); Sheriff's Best Buy v. Davis, 215 Ga.App. 290, 291, 450 S.E.2d 319 (1994). However, if the plaintiff is unable to meet this requirement to produce evidence, the defendant is entitled to summary judgment as a matter of law. With this analysis in mind, we now turn to the evidence before the trial court.

1. "An owner of premises, as to invitees, owes a duty to exercise ordinary care for their protection to keep the premises safe, not reasonably safe. A business invitor owes a nondelegable duty to protect [its] invitees from injury. Thus, [one] dispositive issue in the case sub judice is whether there is any evidence which would authorize a jury to find that [FoodMax] had not delivered full possession and complete control of [its floors to United Maintenance] and if full possession and complete control were not delivered, whether [appellee] was injured as a result of a breach of the nondelegable duty owed to [her] as an invitee [to the store] that [FoodMax] controlled." (Citations and punctuation omitted.) Towles v. Cox, 181 Ga.App. 194, 196(1), 351 S.E.2d 718 (1986). In short, the owner/occupier cannot insulate itself from liability simply by hiring an independent contractor to clean its floors and, under the facts of this case, may be vicariously liable for the negligent acts of its contractor.

At the time of appellee's fall, appellant had actual knowledge that the floors of its store were being cleaned by an employee of United Maintenance. FoodMax was open 24 hours a day for its customers to shop and had hired United Maintenance to clean the floor nightly between the approximate hours of 11:00 p.m. and 8:00 a.m. At the direction of FoodMax, the portion of the store in which the floor was being cleaned was not closed to customers. This...