Sharfuddin v. Drug Emporium, Inc.

• Decision Date: 20 February 1998
• Docket Number: No. A97A1842.,A97A1842.
• Citation: 230 Ga. App. 679,498 S.E.2d 748
• Parties: SHARFUDDIN v. DRUG EMPORIUM, INC.
• Court: Georgia Court of Appeals

498 S.E.2d 748

230 Ga. App. 679

SHARFUDDIN v.DRUG EMPORIUM, INC.

No. A97A1842.

Court of Appeals of Georgia.

February 20, 1998.

Certiorari Denied May 22, 1998.

McCurdy & Stone, John D. Stone, Atlanta, for appellant.

Hicks, Casey & Barber, Mark A. Barber, Marietta, Richard C. Foster, Sharon C. Barnes, for appellee.

BIRDSONG, Presiding Judge.

Rubab Sharfuddin appeals the grant of summary judgment to Drug Emporium, Inc. in her lawsuit seeking damages for injuries she allegedly sustained when she slipped and fell in a Drug Emporium store.Her complaint averred that she slipped on water in the store that Drug Emporium failed to remove.Following discovery, Drug Emporium moved for summary judgment based upon Sharfuddin's deposition testimony.The motion contended that there was no evidence to prove the essential elements of her cause of action that Drug Emporium had actual or constructive knowledge of the water on the floor and that she was without knowledge of the water.

In response, Sharfuddin asserted only that genuine issues of material fact existed because Drug Emporium did not prove that it had a reasonable inspection program in operation on the day of her fall.Subsequently, the trial court granted summary judgment to Drug Emporium, but did not specify on which basis the motion was granted.Sharfuddin has now filed this appeal in which she asserts that the grant of summary judgment was in error because genuine issues of material fact remained for trial.Held:

1.Although this case was decided before our Supreme Court's recent decision in Robinson v. Kroger Co.,268 Ga. 735, 493 S.E.2d 403, concerning grants of summary judgment in slip and fall cases, appellate courts must apply the law as it exists at the time of the appellate court's judgment, even though doing so might change the judgment of the trial court which was correct at the time it was rendered.Clary v. State,151 Ga.App. 301, 259 S.E.2d 697.Careful examination of Robinson v. Kroger shows that the trial court's decision in this appeal is not affected by that decision.

The Supreme Court"granted certiorari [in Robinson] to examine `the proper standard for determining whether the plaintiff in a "slip and fall" premises liability case has exercised ordinary care sufficient to prevail against a motion for summary judgment,'"id., and "to examine the appellate decisions which have as their crux a determination as a matter of law that an invitee failed to exercise ordinary care for personal safety."Id. at 739, 493 S.E.2d 403 Neither topic is present in this case.Nevertheless, while considering those matters, the Supreme Court also addressed the "distraction doctrine" and took the opportunity to explain the Court's earlier decision in Barentine v. Kroger Co.,264 Ga. 224, 443 S.E.2d 485, and also addressed the parties' burdens of proof in slip and fall cases in light of its decision in Lau's Corp. v. Haskins,261 Ga. 491, 405 S.E.2d 474.The Supreme Court labeled these issues as other "troubling aspects of the judicial treatment of the invitee's exercise of ordinary care for personal safety."Robinson,supra at 744, 493 S.E.2d 403.

The distraction doctrine is not an issue in this appeal, and careful examination of Robinson reveals that the focus of the Supreme Court's analysis of the burden of proof in slip and fall cases was on the second prong of the elements of a foreign substance slip and fall cause of action concerning the plaintiff's knowledge of the foreign substance (seeAlterman Foods v. Ligon,246 Ga. 620, 623-624, 272 S.E.2d 327) and not the defendant's actual or constructive knowledge of the foreign substance which falls within the first prong.SeeRobinson v. Kroger,supra at 746-747, 493 S.E.2d 403.

In fact, in Robinson,the Supreme Court reaffirmed, without modification, that "to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard."Id. at 748-749, 493 S.E.2d 403.Further, the Supreme Court held that its modification to the plaintiff's burden of coming forward with the evidence on the second prong applies only after the first prong had been established or assumed for purposes of a motion for summary judgment.Id. at 748, 493 S.E.2d 403.Consequently, we find the Supreme Court's decision in Robinson did not change either the first prong of a plaintiff's cause of action under Alterman Foods or the burden on movants for summary judgment on the first prong as established in Lau's Corp. v. Haskins,supra.

Nevertheless, we are mindful of the Supreme Court's admonition in Robinson v. Kroger,supra at 748, 493 S.E.2d 403, that the routine issues of premises liability, including a defendant's negligence, i.e., the defendant's actual or constructive knowledge of the hazard, generally are not susceptible to summary judgment.Thus, summary judgment should be granted and affirmed even under the first prong only when the evidence is plain, palpable, and undisputed, i.e., where reasonable minds cannot differ on the conclusion to be reached.Wade v. Mitchell,206 Ga.App. 265, 268, 424 S.E.2d 810.For the reasons discussed in detail below, we find this to be such a case because Sharfuddin presented no evidence that Drug Emporium had actual or constructive knowledge of the water on the floor and no evidence from which such knowledge could be inferred.

2.The standards applicable to motions for summary judgment under the first prong of Alterman Foods are as announced in Lau's Corp. v. Haskins,supra.Further, when ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.Moore v. Goldome Credit Corp.,187 Ga.App. 594, 595-596, 370 S.E.2d 843.Also, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence.Goring v. Martinez,224 Ga.App. 137, 138(2), 479 S.E.2d 432;Bishop v. Mangal Bhai Enterprises,194 Ga.App. 874(1), 392 S.E.2d 535.In these proceedings, the rules on admissibility of evidence apply, and hearsay has no probative value unless it is part of the res gestae.Strickland v. DeKalb Hosp. Auth.,197 Ga.App. 63, 65, 397 S.E.2d 576.Indeed, "[e]vidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment."(Punctuation omitted.)Hall v. Cracker Barrel, etc.,223 Ga.App. 88, 92, 476 S.E.2d 789.Thus, it is the duty of each party at summary judgment to present his case in full or risk judgment going against him (Summer-Minter & Assoc. v. Giordano,231 Ga. 601, 604, 203 S.E.2d 173), and it is only where the contradiction by other witnesses is to a matter relevant and material to the issue that it is error to grant a motion for summary judgment.Raven v. Dodd's Auto Sales, etc.,117 Ga.App. 416, 422, 160 S.E.2d 633.Lastly, on appeal, a grant of summary judgment will be affirmed if it is right for any reason.Malaga Mgt. Co. v. John Deere Co.,208 Ga.App. 764, 767, 431 S.E.2d 746.

3.Contrary to the assertion in the dissent (which was not raised Ms. Sharfuddin either in the trial court or on appeal), this is a foreign substance slip and fall case, and not a case under the second category of Alterman Foods in which the proprietor intentionally placed a substance on the floor.SeeAlterman Foods,supra at 623-624, 272 S.E.2d 327.The dissent's argument to the contrary is based on Sharfuddin's testimony at one point that the water looked as if it had been left on the floor by somebody cleaning.For the reasons discussed below, Sharfuddin's deposition testimony was not admissible evidence sufficient to create a question of fact on this issue.SeeHall v. Cracker Barrel,supra.The true nature of her testimony can be appreciated only when it is considered in context.

Sharfuddin testified that after her fall she saw separate drops of water on the floor near where her foot slipped in an area that was no larger than three inches by three inches.Within that area, some of the drops were closer together and some more separated, but all of the water in the drops would fill only two tablespoons.

Sharfuddin was asked: "And is the water in the shape as if it was a splashdown, like a spillage, or is it just like sitting, almost circular?"Sharfuddin answered: "It was like a sitting one like just somebody has cleaned it or left, you know, like cleaning stuff, but not like a splash.It was not like a splash."Question: "Okay.Not like a splash but you said it seemed as if someone had been cleaning and left it there?"Sharfuddin: "Maybe, just like it was there for, you know, a long time.Not long time.It was there.You know, if—that's what I can't get from this.If you drop something, it's scattered too many areas but it was not that, too many areas.Drops were there but that's what I saw at that point.That that was a splash, I cannot know."

Later, Sharfuddin was asked, "Okay.And then what made you say it looked as if someone had been cleaning, that that's the way it looked?"Answer: "Because I was just assuming because you said that is it a— was split."(Emphasis supplied.)Question: "A splash?"Answer: "A splash.It was there.The water showed it was there for, you know, like before that.It was not like a recent something as, you know, just now and then it was just like—there was no—" Sharfuddin's counsel: "You're doing fine."

Question: "Yeah, and I would like to know what was it about the water that told you it was here not recently or a long time because I heard you—didn't you say something like that, you could tell it hadn't just happened?"Sharfuddin "Yes.You were saying that it was like it was a...