Hall v. Cracker Barrel Old Country Store, Inc.
Decision Date | 26 September 1996 |
Docket Number | No. A96A2111,A96A2111 |
Citation | 223 Ga.App. 88,476 S.E.2d 789 |
Parties | HALL v. CRACKER BARREL OLD COUNTRY STORE, INC. |
Court | Georgia Court of Appeals |
Dozier, Lee, Graham & Sikes, Neal B. Graham, Stephen M. Welsh, Macon, for appellant.
Anderson, Walker & Reichert, Robert A.B. Reichert, Samuel G. Alderman III, Macon, for appellee.
On November 20, 1992, appellant entered the Cracker Barrel Old Country Store in Macon, Bibb County, to have a breakfast meeting with co-workers. The Cracker Barrel restaurant is set up into two distinct areas: a gift shop at the entrance, which has a hardwood floor, and a restaurant, which has a rough, quarry tile floor.
As appellant walked from the gift shop to the restaurant, she slipped and fell on the hardwood floor, landing on her buttocks and injuring her right wrist. Appellant testified that she did not see any foreign substance on the floor, and her clothing was not wet; she said only that the floor looked shiny and was "slippery." Appellant admitted that she had been to the restaurant both before and after the accident and had successfully negotiated the same area without slipping.
Appellee's associate manager on duty saw appellant fall and assisted appellant while she had breakfast at the restaurant, offering to call an ambulance (appellant declined), and getting ice for appellant's sore wrist. Appellee's associate manager testified that appellant slipped again when she was leaving the restaurant.
Appellant was treated initially at a hospital emergency room, and, a few days later, appellant consulted with an orthopedist, who determined that appellant's wrist was fractured and applied a hard cast. Appellant did not notify appellee of her medical care, nor did she submit medical bills to appellee for payment.
Appellant filed suit against appellee for damages arising from the fall, alleging that appellee's floor was defective or that appellee was negligent in maintaining, designing, or constructing its business premises. Appellee responded with evidence that the floor was clean and dry at the time of the fall; that the floor was only cleaned with vinegar and water or with "Renovator," a special cleaner/conditioner that is not a wax and does not make the floor slippery; that such care is consistent with the Cracker Barrel restaurant's policy manual; that the floor was not slippery when it was clean and dry; that several other customers had traversed the same area on the day of the accident without slipping; and that the associate manager had never seen another customer fall at the threshold. After considering affidavits and depositions submitted by the parties, the trial court granted summary judgment to the appellee.
1. In the first enumeration of error, appellant asserts that the trial court erred in granting summary judgment since genuine issues of material fact remain in dispute. (Citations and emphasis omitted). Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Further, Id.
In the case sub judice, appellant asserts that she "slipped and fell due to the defective flooring and/or excessive waxing of the floor ..." or because appellee was negligent by "failing to properly maintain, design, and/or construct its business premises." Further, appellant asserts that appellee should have known about this allegedly dangerous condition and taken steps to warn customers about the hazard.
However, appellee has pierced appellant's complaint by presenting evidence that no defective or dangerous condition existed that caused appellant to fall. Appellee's associate manager testified in his deposition and affidavit that the floor had been maintained according to the policy manual and had not been waxed; that the floor was not slippery when clean and dry; that the floor was clean and dry at the time of appellant's fall; and that no foreign substances were on the floor that may have caused appellant to slip and fall. In response, appellant admitted that she is unsure as to how and why she fell and relied on her assertion that the floor was "slippery" and, therefore, defective and dangerous. 1
Further, pretermitting whether or not a defective condition existed, appellant must also prove that there was Alterman Foods v. Ligon, 246 Ga. 620, 624, 272 S.E.2d 327 (1980). Id.; see also J. C. Penney Co. v. Smith, 173 Ga.App. 612, 613, 327 S.E.2d 574 (1985).
In the case sub judice, appellant alleged such negligence in the care of the floor, but appellee's evidence pierced the pleadings at issue by presenting evidence that their care of the floor was consistent with the policy manual of Cracker Barrel; that they used only vinegar and water or "Renovator," a hardwood floor cleaner and conditioner, to clean the floor; and by affirmatively denying the use of waxes or substances which would make the floor slippery. Again, in response, appellant failed to present any evidence that such floor care was negligent other than the assertion that the floor was "slippery" and that, therefore, the appellee must have been negligent.
In a case with remarkably similar facts, this Court found that summary judgment was appropriate when the plaintiff failed to present evidence that the Cole v. Cracker Barrel, 210 Ga.App. 488, 489-490, 436 S.E.2d 704 (1993).
Further, in Alterman Foods, supra, another similar slip and fall case, the defendant introduced testimony that there was no foreign substance or defect on the floor at the time of plaintiff's fall and that other customers had traveled over the area without incident. Id. at 625, 272 S.E.2d 327. The Supreme Court held that the evidence presented was (Citations omitted.) Id. "To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer's safety which he is not in this state." (Citation and punctuation omitted). McGauley v. Piggly-Wiggly Southern, 170 Ga.App. 851, 852, 319 S.E.2d 15 (1984) ( ); Alterman Foods, supra at 624, 272 S.E.2d 327.
Finally, in the case sub judice, appellant attempted to introduce...
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