Food Fair, Inc. v. Mock , 129 Ga. App. 421 ( 1973 )

Stolz, Judge.

Plaintiff Mrs. Erma Mock, brought suit against defendant Food Fair, Inc. for injuries and damages sustained as the result of her slip and fall, which occurred at approximately 3:30 p.m. on November 23, 1971, in the produce section of the defendant’s grocery store. Plaintiff Ralph Mock brought suit for his wife’s medical expenses, loss of services and consortium. The defendant’s motion for summary judgment was overruled. The trial judge certified his decision for immediate review pursuant to Code Ann. § 81A-156(h) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238) and the defendant appeals. Held:

On motion for summary judgment, the burden is upon the moving party to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442); McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178, 179 (129 SE2d 408); Gray v. Delta Air Lines, 127 Ga. App. 45 (2) (192 SE2d 521); Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866), and cit.

In her deposition, which was made a part of the defendant’s motion for summary judgment, the plaintiff testified that she did not know what she had stepped on; that she did not see what she had stepped on; that she did not have any idea what she had stepped on; that she saw only one piece of leafy vegetable on the floor in the area where she fell, but it was not what caused her to fall; that she could not say that the floors in the grocery store appeared to be particularly shiny or freshly waxed.

Affidavits from the defendant’s store manager and assistant manager, also filed in support of the defendant’s motion for summary judgment, showed that Mrs. Mock "hollered” when she fell; that, upon hearing her shout, they went directly to the place where she fell and remained there until after she was removed by ambulance attendants; that, as she was lying on the floor and after she was removed, each affiant "carefully examined the floor where she was and had been, and carefully examined the floor in the immediate surrounding area adjacent thereto” and that in said area there was no defect in the terrazzo (floor) or trash, spilled liquids, sand, grit, leafy vegetables or any foreign matter whatsoever. There were no counter-affidavits or other evidence submitted in opposition to the motion for summary judgment.

Code Ann. § 81A-156 (e) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238) provides in part, "When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

The general law relating to "slip and fall” cases has been well established for a period of years and the case citations are legion. "These may be summarized as follows: (1) 'One cannot state a case without alleging, or effect a recovery without proving, that the defect in the floor which caused the plaintiff to slip, if a patent defect, was for some reason not connected with any negligence on her part not patent or obvious to such plaintiff’ Pilgreen v. Hanson, 94 Ga. App. 423, 425 [94 SE2d 752]. (2) 'Before an owner can be held liable for the slippery condition of the floor, produced by the presence of a foreign substance, proof must be shown that he was aware of the substance or would have known of its presence had he exercised reasonable care.’ Boatright v. Rich’s, 121 Ga. App. 121 (3) [173 SE2d 232], (3) 'In the absence of allegations of facts showing actual knowledge on the part of the defendants of the presence of the substance on the floor, or showing facts and circumstances from which it would be inferred that the defendants had knowledge of the presence of the substance on the floor, the defendants would not be charged with negligence in failing to remove a substance placed there by someone else.’ Wootton v. City of Atlanta, 101 Ga. App. 779, 780 [115 SE2d 396]. (4) Where there are no conditions making the premises unusually dangerous, the law does not require the proprietor to provide a constant patrol. Angel v. Varsity, Inc., 113 Ga. App. 507 [148 SE2d 451].” Emory University v. Williams, 127 Ga. App. 881, 883 (195 SE2d 464).

The evidence contained in the aforesaid affidavits of the defendant’s employees, which are hereinabove referred to, pierced the pleadings as to the existence of any defect in or on the floor.

Under this evidence, the defendant could not have been aware of any defect or have become aware of such in the exercise of ordinary care because (according to affiants) no defect existed.

At this point it was incumbent upon the plaintiff to establish by evidence the existence of a genuine issue of material fact in each of the two essential elements in this type of case, i.e., the existence of a defect and the defendant’s awareness thereof, either actual or constructive. Studstill v. Aetna Cas. &c. Co., 101 Ga. App. 766, 768 (115 SE2d 374); Scales v. Peevy, 103 Ga. App. 42, 46 (118 SE2d 193); Montgomery v. Pickle, 108 Ga. App. 272 (3) (132 SE2d 818); Crutcher v. Crawford Land Co., 220 Ga. 298, 304 (138 SE2d 580).

Even if the testimony contained in the plaintiff’s deposition could be said to create a genuine issue of fact as to a defect on the floor (which we hold it does not), there is no such testimony or any other evidence showing the defendant’s awareness thereof or that the defendant would have become aware of its presence had it exercised ordinary care. In this particular, there is a fatal void in the plaintiff’s case.

The evidence above referred to is very similar to that in Scott v. Gulf Oil Corp., 116 Ga. App. 391 (157 SE2d 526). As in Scott, we are not concerned with any issue of proof with respect to knowledge by the defendant or its agents of the presence of any defective condition or slippery substance that caused plaintiff, Mrs. Mock, to fall. The evidence shows that the plaintiff did not know what she stepped on or what caused her fall. In Scott, the plaintiff did present evidence to show that he did see a spot of grease on his shoe when he arrived at the hospital, which might have given rise to an inference that this caused his fall. Here the plaintiff does not even have this type of evidence. The evidence is not ambiguous, doubtful, or susceptible of more than one interpretation. There is no evidence that the defendant or its agents were guilty of any negligence. Indeed the record affirmatively shows the absence of any negligence by the defendant or its agents. The evidence simply shows that the plaintiff fell while shopping in the defendant’s store. This is insufficient. See W. T Grant Co. v. Phillips, 116 Ga. App. 650 (158 SE2d 312). To hold the defendant responsible in damages under the evidence presented, would make the storekeeper an insurer of the plaintiffs safety while on the premises. This is not the rule. See Brown v. J. C. Penney Co., 123 Ga. App. 233, 236 (180 SE2d 364) and cit.; Dickey v. J. C. Penney Co., 124 Ga. App. 852 (186 SE2d 356).

Argued February 13, 1973 Decided July 6, 1973 Rehearing denied July 19, 1973 Coleman, Blackburn, Kitchens & Bright,' Wilby C. Coleman, for appellant. Bennett, Saliba & Yancey, George M. Saliba, for appellees.

The trial judge erred in denying the defendant’s motion for summary judgment.

Judgment reversed.

Bell, C. J., Hall, P. J., Eberhardt, P. J., and Clark, J., concur. Pannell, Deen, Quillian and Evans, JJ, dissent.