Williams v. EMRO Marketing Co., A97A0957

• Decision Date: 29 October 1997
• Docket Number: No. A97A0957,A97A0957
• Citation: 229 Ga.App. 468,494 S.E.2d 218
• Parties: , 97 FCDR 3949 WILLIAMS et al. v. EMRO MARKETING COMPANY.
• Court: Georgia Court of Appeals

Page 218

494 S.E.2d 218

229 Ga.App. 468, 97 FCDR 3949

WILLIAMS et al. v. EMRO MARKETING COMPANY.

No. A97A0957.

Court of Appeals of Georgia.

Oct. 29, 1997.

Reconsideration Denied Nov. 19, 1997.

Certiorari Denied May 1, 1998.

C. Victor Long, Atlanta, for appellants.

Carr, Tabb & Pope, Jan R. Kastanakis, Render C. Freeman, Atlanta, for appellee.

BEASLEY, Judge.

Nathaniel Williams and his wife sued EMRO Marketing Company for injuries suffered when Williams allegedly slipped and fell on ice on the pavement at premises of a store owned by EMRO. EMRO moved for and was granted summary judgment on one issue alone. EMRO argued that Nathaniel Williams failed to present any evidence that ice was the cause in fact of his fall. The trial court granted the motion but did not explain its ruling.

1. We first consider what issues will be addressed on appeal. EMRO contends that the trial court granted summary judgment because Williams failed to present any facts to show that ice was the cause in fact of his fall. EMRO's motion was based on that one point alone. In responding to a motion for summary judgment, a plaintiff need not address issues not raised in the motion or present his entire case. "Nothing in Lau's Corp. [v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991) ] places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present [his] entire case on all allegations in the complaint--even on issues not raised in the defendants' motion. Indeed, until appellees pierce[ ] the allegations of [the] complaint on a particular issue, [plaintiff is] neither required to respond to the motion on that issue ( [cits.] ), nor required to produce evidence in support of his complaint on that issue. [Cits.] The issues that must be rebutted on motion for summary judgment are those raised by the motion." Hodge v. SADA Enterprises, 217 Ga.App. 688, 690, 458 S.E.2d 876 (1995). Even though the Williamses contend there are issues of fact regarding whether EMRO had knowledge of the ice, Williams' own knowledge of ice, and Williams' own diligence, such issues were not before the trial court, were not decided, and need not be addressed on appeal. EMRO concedes that cause in fact is the only appropriate appellate issue.

2. "To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

"To recover damages in a tort action, a plaintiff must prove that the defendant's negligence was both the 'cause in fact' and the 'proximate cause' of [the] injury." Atlanta Obstetrics, etc., Group v. Coleman, 260 Ga. 569, 398 S.E.2d 16 (1990). To avoid summary judgment, a plaintiff who alleges he slipped on a foreign substance must offer some evidence of a foreign substance on the ground where he slipped. Bradley v. Red Food Stores (Ga.), 179 Ga.App. 39, 40, 345 S.E.2d 127 (1986). See also, e.g., Jackson v. Wal-Mart Stores, 206 Ga.App. 165, 167(1), 424 S.E.2d 845 (1992) (plaintiff offered no proof that a puddle of pesticide was the source of the slickness on which she fell); Dickey v. J.C. Penney Co., 124 Ga.App. 852, 853, 186 S.E.2d 356 (1971) (plaintiff offered no proof of a foreign substance).

Viewed in favor of the non-movant plaintiffs, the evidence is that Williams was on his way to work on February 19, 1993, when he stopped for gas at a store operated by EMRO. He first paid in the store and then returned along the same route to pump gas. On his return, he slipped and fell, injuring his knee and other parts of his body. He never saw what he slipped on and he never saw any ice, and his clothes were not wet from ice or water. He stated in an affidavit, "I didn't personally witness on February 19, 1993 exactly what substance caused me to fall...." No other person directly witnessed Williams' fall.

It had rained the day before, the temperature overnight had reached about 20 degrees, and water from the canopy over the gas pumps had flowed out of the down spout onto the pavement near the gas pump at which Williams had parked his car. When it rains, water drips from that down spout and collects on the ground. At the time of the fall, the temperature was still at or below freezing.

Although EMRO contends that no evidence showed Williams slipped on ice, another customer, Gregory Perkins, swore by affidavit that after he offered to help Williams, "I then took his arm and assisted him from the iced area." He also stated that he picked up a large piece of ice, which he believed was part of the ice Williams slipped on. Perkins was a regular customer and had previously seen water dripping from a down spout near the pump where Williams fell. After the fall he noticed "[t]he water had drained from a down spout and collected on the ground below and frozen." Perkins also noted "ice cubes hanging down, directly over where [Williams] had fallen." Williams recalls the sensation of a slick surface beneath his feet as his feet flew out from under him.

Circumstantial evidence which raises a reasonable inference of the cause of the fall, unrebutted by positive evidence, is sufficient to survive summary judgment. Shepherd v. Holmes, 184 Ga.App. 648, 649(2), 362 S.E.2d 396 (1987). In Kenny v. M & M Supermarket, 183 Ga.App. 225, 358 S.E.2d 641 (1987), there was no evidence of any foreign substance, even after inspection, unlike here where Williams was lying in the "iced area." Further, Williams' own testimony is not positive evidence of no ice which therefore rebuts the circumstantial evidence of ice as a cause. He testified only that he never saw ice, not that he inspected and found no ice as in Kenny. Indeed, he was somewhat disoriented by the fall.

Giving the non-movant the benefit of all inferences, this evidence would tend to support a finding of fact that Williams slipped on the ice upon which he lay. Although Williams may have slipped on something else and landed on the ice, his location on ice after the fall, together with the fact that a witness saw ice where Williams fell, is some evidence of what caused his fall. Williams' own lack of knowledge of the substance on which he slipped is not dispositive. A person who is injured may become unconscious or disoriented by the fall and be unable or unconcerned then to investigate what he slipped on. That does not prevent other evidence on the issue.

Judgment reversed.

McMURRAY, P.J., and ELDRIDGE, J., concur.

RUFFIN, J., concurs specially.

ANDREWS, C.J., BIRDSONG, P.J., and HAROLD R. BANKE, Senior Appellate Judge, dissent.

RUFFIN, Judge, concurring specially.

Once again this Court enters the bottomless and ugly abyss of "slip and fall." It is as though we have encountered a slippery slope and cannot regain our proper footing. Our decisions in this area oftentimes raise more questions than they settle, or more graphically, they cause a thirst which they cannot quench; they spawn a hunger which they cannot satisfy. A review of our past decisions offers neither retrospective understanding nor current comfort.

Summary judgment, once thought to be the cure, is now the disease. It is now a problem masquerading as a solution. But it is not the fault of our trial judges; it is not that trial judges have not caught up with our instructions; and it is not that trial judges have exceeded our instructions. Rather, the infirmity is in our instructions. But one instruction is quite clear to the trial judges in slip and fall cases on a motion for summary judgment:

You can and you can't,

You shall and you shan't,

You will and you won't,

You'll be damned if you do,

And you'll be damned if you don't. ¹

The issue of whether an owner has breached a duty of care is generally to be decided by a jury. Lau's Corp v. Haskins, 261 Ga. 491, 493(2), 405 S.E.2d 474 (1991). Summary judgment is appropriate only when the court, (1) viewing all the facts, (2) and the reasonable inferences from those facts, (3) in a light most favorable to the non-moving party, (4) concludes that the evidence does not create a triable issue as to any essential element of the case. Id. at 495, 405 S.E.2d 474. It is only in "plain and palpable cases where 'reasonable minds cannot differ as to the conclusion to be reached' " that the court may decide such an issue without a jury. (Citation omitted.) Id. at 493(2), 405 S.E.2d 474.

That principle is good law, succinctly stated, but is apparently difficult to apply. The facts in the instant case, and our inability to form a consensus as to the propriety of summary judgment, demonstrate precisely why the issue at hand should be decided by a jury. The critical question here is, "what substance caused Williams to slip and fall?"

1. Not surprisingly, the facts are not in dispute. It rained the day before Williams' fall. Rainwater from the canopy over the gasoline pumps flowed out of a down spout and onto the paved surface where Williams fell. The temperature overnight reached about 20 degrees. Williams slipped and fell,...