Wings v. Goodman

• Decision Date: 28 February 2013
• Docket Number: No. A12A2462.,A12A2462.
• Citation: 320 Ga.App. 54,739 S.E.2d 64
• Parties: H.J. WINGS AND THINGS v. GOODMAN et al.
• Court: Georgia Court of Appeals

320 Ga.App. 54

739 S.E.2d 64

H.J. WINGS AND THINGS

v.GOODMAN et al.

No. A12A2462.

Court of Appeals of Georgia.

Feb. 28, 2013.

Swift, Currie, McGhee & Hiers, Andrae Phillip Reneau, for Appellant.

Kimberly Annette Ellison, Graylin C. Ward, Newnan, for Appellee.

MILLER, Presiding Judge.

Patricia Goodman and Harold Goodman sued H.J. Wings and Things (“Wings and Things”) to recover for personal injuries that Mrs. Goodman allegedly sustained when she slipped and fell during a visit to a Wings and Things restaurant.¹ Wings and Things filed a motion for summary judgment, which the trial court denied. We granted Wings and Things's application for an interlocutory appeal of the trial court's denial of its motion for summary judgment. On appeal, Wings and Things contends that it was entitled to summary judgment because the evidence showed that Mrs. Goodman could not identify any specific hazard that caused her to slip and fall, and that the restaurant did not have actual or constructive knowledge of any hazard on its premises. Since we agree that the evidence in the record does not show the presence of a hazard that caused Mrs. Goodman to fall, we reverse.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. A defendant may prevail on summary judgment 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.

(Citations and punctuation omitted.) Belk Dept. Store of Charleston, S.C. v. Cato, 267 Ga.App. 793, 793–794, 600 S.E.2d 786 (2004).

So viewed, the record shows that on an afternoon in January 2010, Mrs. Goodman visited the Wings and Things restaurant to pick up a food order, as she had done many times before. Mrs. Goodman entered through the front door, walked through the lobby, and proceeded to the order counter. When she was a few steps away from the order counter, Mrs. Goodman suddenly slipped and fell backward. Mrs. Goodman hit her neck and back on the concrete floor. Mrs. Goodman believed that she slipped and fell because the floor was heavily waxed. Mrs. Goodman stated that portion of the cement floor where she fell was “really slippery and shiny looking.”

Upon Mrs. Goodman's fall, a Wings and Things employee helped Mrs. Goodman to her feet and directed her to the counter to speak with the restaurant's manager. The manager confirmed that Mrs. Goodman was okay and collected Mrs. Goodman's personal information. By the time Mrs. Goodman finished speaking with the manager, her food was ready. Mrs. Goodman paid for her food, and at the direction of the manager walked around the area where she slipped to exit the restaurant.

As a result of her slip and fall, Mrs. Goodman suffered injuries to her neck, arms, shoulders, and lower back, which required ongoing medical treatment. Mrs. Goodman filed the instant lawsuit against Wings and Things, contending that it had breached its duty of care to keep the restaurant safe by failing to remove the excess wax or viscous substance from the floor. Wings and Things denied liability and moved for summary judgment. The trial court denied Wings and Things's motion for summary judgment, finding that issues of fact remained as to the existence of a hazard and whether Wings and Things had superior knowledge of the hazard.

1. On appeal, Wings and Things contends that the trial court erred in denying its motion for summary judgment because the evidence showed that Mrs. Goodman could not identify any specific hazard that caused her to slip and fall. We agree.

In order to recover in a premises liability case, a plaintiff must establish fault on the part of the owner and the invitee's ignorance of the danger. See Flagstar Enterprises v. Burch, 267 Ga.App. 856, 857, 600 S.E.2d 834 (2004). “The true basis of a proprietor's liability for personal injury to an invitee is the proprietor's superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm.” (Citation and punctuation omitted.) Id. “Proof of a fall, without more, does not create liability on the part of a proprietor or landowner. It is common knowledge that people fall on the best of sidewalks and floors.” (Citations and punctuation omitted.) Id. at 856–857, 600 S.E.2d 834. “Indeed, 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.” (Citations and punctuation omitted.) Belk Dept. Store, supra, 267 Ga.App. at 794, 600 S.E.2d 786.

When the plaintiff cannot show the existence of a hazardous condition, she cannot prove the cause of her injuries and “there can be no recovery because an essential element of negligence cannot be proven.” (Citations and punctuation omitted.) Pinckney v. Covington Athletic Club & Fitness Center, 288 Ga.App. 891, 893, 655 S.E.2d 650 (2007); see also Belk Dept. Store, supra, 267 Ga.App. at 794, 600 S.E.2d 786. “A mere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture, it is appropriate for the court to grant summary judgment to the defendant.” (Citation and punctuation omitted.) Pinckney, supra, 288 Ga.App. at 893, 655 S.E.2d 650. As a result, Mrs. Goodman “had to prove more than the existence of a slick or wet floor. [She] had to prove that the condition of the floor constituted an unreasonable hazard and that [Wings and Things] had superior knowledge of that hazard.” (Citation and punctuation omitted.) Flagstar Enterprises, supra, 267 Ga.App. at 858, 600 S.E.2d 834.

Here, Mrs. Goodman has not shown the existence of a hazardous condition that caused her to fall. Specifically, Mrs. Goodman testified that she did not see any foreign substance on the floor that caused her to fall. Mrs. Goodman speculated that she fell because the floor was heavily waxed, as it appeared to be “really slippery and shiny looking.” She pointed to no evidence, however, showing that the floor was waxed, much less heavily waxed. Rather, Wings and Things provided unrefuted evidence showing that the restaurant did not use wax on its floors.

While Mrs. Goodman relies upon evidence that the Wings and Things manager cleaned the area after she fell to show that Wings and Things had knowledge of a hazard, this evidence was inadmissible.

Evidence of subsequent remedial measures generally is inadmissible in negligence actions,...