Shansab v. Homart Development Co., Inc., A92A0944

Decision Date10 September 1992
Docket NumberNo. A92A0944,A92A0944
Citation422 S.E.2d 305,205 Ga.App. 448
PartiesSHANSAB v. HOMART DEVELOPMENT COMPANY, INC.
CourtGeorgia Court of Appeals

Rubin, Winter & Rapoport, Joseph M. Winter, Michelle B. Rapoport, Atlanta, for appellant.

Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

This is an appeal from a grant of summary judgment in behalf of appellee/defendant, Homart Development Company, in a slip and fall case.

On an icy and rainy morning, the engineering staff of appellee discovered that the upper parking deck of their office building was covered with a hazardous sheet of ice. They put up cones to block entrance to the upper parking level, but someone moved the cones and appellant, an employee of a tenant company in the building, drove her car to the top to park to go to work. Appellant exited her car, took a few steps while holding onto her car for support, and fell. Held:

1. A movant/defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party's case; instead, the burden on the moving party is discharged by establishing by "evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party's case." Lau's Corp. v. Haskins, 261 Ga. 491, 495(4), 405 S.E.2d 474. Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Id 2. The record reveals certain factual contradictions between appellant's sworn affidavit and deposition testimony which have not been reasonably explained.

Appellant testified in her deposition that, although it was a horrible day because of the weather conditions, she had to go to her office. Upon driving upon the ramp to the parking deck, she did see cones bunched together; this caused her to hesitate for a second, because there were no cones there any other time; she saw other cars parked on the upper level and the center part of the driveway was open; she concluded that the reasons for the cones must have been cleared; she drove to the side of the parking level closest to her office, and "came down the middle." She decided to park in the middle because she wanted to take that entrance. "So I parked there and I got out of my car. And ... when I closed the door ... then I noticed there was a thick layer of ice, and that's ... when I noticed that this was dangerous. So I held onto my car and I said well, it's maybe a few steps, and when I took that first step somehow I fell down." (Emphasis supplied.) Although appellant stated she had never seen ice like this before, she also testified that this was not the first time she had ever walked on ice, and she also had "jogged" on salted or sanded ice. Appellant further clarified in her testimony that she first saw the ice on the parking deck "when I looked down" after getting out of her car; the ice was shiny. She believes she took one or two steps when she fell and was holding onto her car for support at the time. Appellant denied that she had testified that "I saw the ice before I took the first step," and stated she noticed the ice as she was taking or trying to take the first step. She also testified the first time she saw ice on the upper parking deck was when she "was on top of it standing."

Thereafter, appellant was questioned over certain portions of her prior affidavit. She testified that whatever she put down in the affidavit was the truth of what happened the day of the incident, and she would not lie. Her affidavit reveals the following pertinent assertions of fact: The weather was icy and rainy; as she reached the top of the driveway leading to the parking deck, she could see about 20 cars parked in that area; there were about three cones bunched together on both the left and right of the driveway, so cars could easily pass through them; seeing the cones she hesitated but assuming no problem existed she drove onto the deck and parked her car; "as I opened my car door and looked down, I realized that there was a sheet of ice. With no alternative, I attempted to get out of my car. I was edging my way along the side of the car when suddenly my legs slipped out from under me. Immediately, someone else who had parked ... was present to help me." (Emphasis supplied.) We find that appellant's sworn statement in her affidavit that she saw a sheet of ice when she opened her car door and looked down and attempted to get out of her car is in contradiction of her deposition testimony that she noticed the ice after getting out of her car and closing the door. Being contradictory testimony, which contains no reasonable explanation of the particular inconsistencies involved, the inconsistencies will be construed against appellant. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680. Accordingly, we construe this portion of her testimony as establishing that she saw a sheet of ice when she opened her car door and before she attempted to get out of the car.

3. Assuming appellant was a business invitee and not a mere licensee, the proprietor owed a duty towards her to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1. A proprietor is not an insurer of the invitee's safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. Lau's, supra, 261 Ga. at 492(1), 405 S.E.2d 474.

"In order for a plaintiff in a slip and fall case such as this to recover, two elements must exist: (1) fault on the part of the owner, and ...

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