Winn-Dixie of Greenville v. Ramey, WINN-DIXIE

• Decision Date: 16 February 1988
• Docket Number: WINN-DIXIE,No. 75094,75094
• Parties: OF GREENVILLE et al. v. RAMEY et al.
• Court: Georgia Court of Appeals

Page 785

366 S.E.2d 785

186 Ga.App. 257

WINN-DIXIE OF GREENVILLE et al. v. RAMEY et al.

No. 75094.

Court of Appeals of Georgia.

Feb. 16, 1988.

Rehearing Denied March 1, 1988.

E. Davison Burch, Frederick A. Bading, Athens, for appellants.

Dennis T. Cathey, Cornelia, for appellees.

CARLEY, Judge.

Appellee-plaintiffs Mr. and Mrs. John Ramey brought suit, seeking damages based upon injuries sustained by appellee Mr. Ramey when he slipped and fell in a grocery store which is owned by appellant-defendant Winn-Dixie and managed by appellant-defendant Michael Layton. According to the allegations of appellees' complaint, appellants had negligently allowed a liquid substance to remain on the store floor, thereby creating a hazardous condition which had caused appellant John Ramey to slip and fall. Appellants answered, denying the material allegations of the complaint. The trial court denied appellants'motion for summary judgment, but certified its order for immediate review. This appeal results from the grant of appellants' application for interlocutory review of the trial court's ruling.

1. In support of their motion for summary judgment, appellants filed the deposition of appellant Layton, wherein he testified that he had inspected the floor where appellee John Ramey had fallen and that he had found it to be dry. This testimony was sufficient to pierce appellees' allegation that there was a liquid substance on the floor where the slip and fall had occurred. See generally Food Fair v. Mock, 129 Ga.App. 421, 423, 199 S.E.2d 820 (1973). Once the allegation of appellees' complaint had been pierced, the burden shifted to them to produce evidence which would show that a genuine issue remained as to the existence of the liquid substance on the floor. See OCGA § 9-11-56(e). Appellants contend that appellees did not meet this evidentiary burden and that the trial court therefore erred in denying the motion for summary judgment.

In the deposition of appellee John Ramey, he testified that, in an attempt to break his fall, he had placed his left hand, palm down, on the floor and that, when he removed his palm from the floor, it was wet. On a motion for summary judgment, " '[t]he evidence must be construed most favorably to the opposing party, and the trial court must give him the benefit of all favorable inferences that may be drawn from the evidence. [Cits.]' [Cit.]" Norton v. Ga. R. Bank & Trust, 253 Ga. 596, 603, 322 S.E.2d 870 (1984). Applying this standard, we find that, as to the existence of a hazardous substance, the deposition testimony of appellee John Ramey is sufficient to withstand appellants' motion for summary judgment. Compare Kenny v. M & M Supermarket, 183 Ga.App. 225, 358 S.E.2d 641 (1987). This holding should not, however, be construed as authority for the proposition that appellees' evidence would, had it been offered at trial, necessarily be sufficient to withstand a motion by appellants for directed verdict. An evidentiary posture authorizing the grant of a directed verdict may not authorize the grant of summary judgment in a case, such as this, where "the party making the motion for summary judgment is not required to carry the burden on the trial of the case. [Cits.]" Ray v. Webster, 128 Ga.App. 217, 196 S.E.2d 175 (1973).

2. Appellants further enumerate the trial court's denial of their motion for summary judgment as error on the ground that, under the evidence of record, the issue of their actual or constructive knowledge of the hazardous condition has been eliminated from the case.

" '(I)n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant's floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance....' [Cit.]" (Emphasis supplied.) Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga.App. 891, 892, 318 S.E.2d 514 (1984). Thus, the burden would be on appellants, as the movants for summary judgment, to show that no genuine issue of material fact remained as to their knowledge, actual and constructive, of the foreign substance on the floor. Food Giant v. Cooke, 186 Ga.App. 253, 366 S.E.2d 781 (1988).

Appellee Mr. Ramey testified that he saw none of appellants'...