Hartley v. MacOn Bacon Tune, Inc. , 227 Ga. App. 679 ( 1997 )

BIRDSONG, Presiding Judge.

Robin T. and Teresa L. Hartley appeal from the grant of summary judgment to Macon Bacon Tune, Inc. d/b/a Precision Tune in the Hartleys’ suit arising from an incident in which Robin T. Hartley slipped and fell in Precision Tune’s place of business. Teresa L. Hartley’s claim is for her loss of consortium.

The record shows that on the day in question Hartley accompanied his friend, Marsh, to Precision Tune’s premises so Marsh could have his car checked out by his son-in-law, a Precision Tune employee. Even though Hartley may not have known it, the record shows that Marsh previously had been ordered by Precision Tune’s owner not to return to the premises because Marsh, according to the owner, was always trying to get work done for free by his son-in-law and Marsh was a nuisance to have in the shop because of his drinking. Marsh did not pay for any work done that day. The record further shows, however, that Hartley had no purpose on the premises other than to accompany Marsh. They were hanging out together.

The record also shows that it was raining and rain water was running off the cars brought in for repairs. It was obvious the shop floor was wet.

When Marsh and Hartley arrived at Precision Tune, the son-in-law waved them in and Marsh pulled his car in one of the mechanic’s bays to be checked out. Hartley, wearing flip flop sandals, got out of the passenger side of the car and started to walk around to the front when he alleges he stepped in some oil or something and fell. He testified that he later saw he fell in “a big puddle of oil” which looked like new oil; it was light colored.

Hartley also testified that if he had been looking down, he could have seen the oil, but he was looking at Marsh’s son-in-law. The oil did not blend into the floor; anyone looking down could have seen the oil, and there was nothing to prevent him from seeing the puddle.

After discovery, Precision Tune moved for and was granted summary judgment. The Hartleys then filed this appeal contending that the trial court erred by granting summary judgment because genuine issues of material fact remained for trial. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Further, when ruling on a motion for summary judgment, the nonmoving party should 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 SE2d 843).

2. Our initial consideration is to determine the legal status that Hartley enjoyed while he was on Precision Tune’s premises. “The elements of legal liability of the owner or proprietor of premises for injuries occasioned to persons thereon[ ] vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, a visitor under invitation, express or implied, or a person standing in some special relation recognized by law. The owner or proprietor of premises is liable to a licensee only for wilful or wanton injury. As to an invitee, the owner or proprietor owes the duty to exercise ordinary care. Whether a person is an invitee or a licensee depends upon the nature of his relation or contact with the owner of the premises. If the relationship solely benefits the injured person, he is at most a licensee. If the relationship is one of mutual interest to the parties, the injured party is an invitee of the owner. The enterprise must be mutual to the extent that each party is lawfully interested therein; or that there is common interest or mutual advantage involved. Monetary consideration is not essential.” (Citation and punctuation omitted.) Walker v. Daniels, 200 Ga. App. 150, 154 (407 SE2d 70). As Hartley’s deposition shows that he was merely in Precision Tune to accompany Marsh, he was a licensee. Restaura, Inc. v. Singleton, 216 Ga. App. 887, 888 (456 SE2d 219). See Adams & Adams, Ga. Law of Torts (1996 ed.), pp. 97-99, § 4-1. Because there is no evidence showing Precision Tune wilfully or wantonly injured Hartley, the trial court did not err by granting summary judgment to Precision Tune. Additionally, even applying the higher standards of care owed to a business invitee, the trial court did not err by granting summary judgment to Precision Tune because the record shows that Hartley produced no evidence that Precision Tune had actual or constructive knowledge of any oil on the floor and the record also shows that Hartley, by not looking where he was going, did not exercise ordinary care for his own safety.

3. It has been asserted that once a licensee’s presence is known to a proprietor, a licensee is entitled to the same standard of care as an invitee in a premises liability case. Although this concept unfortunately has been misapplied in some earlier premises liability cases, recent Supreme Court cases establish that it is used properly only in cases involving a defendant’s active negligence. See Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (differentiating between cases concerning conditions of the premises and active negligence); Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445) (“[hjowever, where the alleged negligence arises from static or passive conditions, the landowner owes the anticipated trespasser a duty not to injure him wilfully or wantonly”); Wade v. Mitchell, 206 Ga. App. 265, 266 (2) (b) (424 SE2d 810) (“[ajppellant was not injured by any defect on the truck stop premises pre-existing his arrival thereon”). See also Adams & Adams, supra at p. 69, § 3-5 (“[n]ote that this liability deals with active negligence and not with a static condition”). Thus, it is wrong to apply a rule applicable to active negligence cases in cases alleging a defect existing on the premises. “If the injury arises not from a preexisting defect in the premises but from a claim of active negligence arising from the owner’s or occupant’s alleged acts or omissions occurring at the time the plaintiff was on the premises, the liability test is the general negligence standard of foreseeability, rather than the more restrictive superior knowledge test.” Adams & Adams, supra at p. 99, § 4-1.

Where an injury is caused by a condition on the property, “the act of the owner must be a wilful and wanton act in order for the injured party to recover. While, where the presence of the injured party on the owner’s premises is known or should have been anticipated, the duty owing to him, whether he be classified as a trespasser or licensee is to use ordinary care to avoid inflicting injuries on him, it is also usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be or may reasonably be expected to be, within range of a dangerous act being done or a hidden peril on one’s premises.” (Citation and punctuation omitted; emphasis in original and supplied.) Brooks v. Logan, 134 Ga. App. 226, 228 (1) (213 SE2d 916). Therefore, because no evidence shows the oil came to be on the floor while Hartley was on the premises, the active negligence cases do not apply. Trammell v. Baird, supra.

Moreover, it is not clear how this case is different from the cases in which an owner has intentionally placed a slippery substance on the floor, or all the numerous cases in which it is alleged that foreign substances have been dropped, spilled, or left on floors. If adopted, the result of the active negligence analysis would be to eliminate the entire existing body of law regulating premises liability cases.

4. Any effort to disregard Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327), must be unsuccessful, if constitutional principles are to prevail. The Supreme Court of Georgia has not rejected or revised Alterman Foods. Therefore, the Alterman Foods standards are binding on this Court even though some may believe there is a better concept for allocating the burdens on the parties in these cases. “The decisions of the Supreme Court shall bind all other courts as precedents.” Ga. Const. 1983, Art. VI, Sec. VI, Par. VI; Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 827 (482 SE2d 720).

In the same manner, this Court cannot deem the guidance on foreign substance cases in Alterman Foods as mere dicta. Pretermitting whether this Court could ever reject guidance provided by the Supreme Court in cases of gravity and public importance on this basis (see Ga. Const. 1983, Art. VI, Sec. VI, Par. V; OCGA § 15-2-8) is the fact that Alterman Foods has been the seminal case in this area of the law for over 16 years. Thus, even if the foreign substance guidance could have been considered dicta originally, common sense and judicial stability dictate that it is too late for that now. Alterman Foods has been cited with approval, followed, and relied upon by this Court and our Supreme Court (see Martin v. Sears, Roebuck & Co., 253 Ga. 337 (320 SE2d 174)) and cases relying upon Alterman Foods have been cited, followed, and relied upon by this Court and our Supreme Court in cases too numerous to mention. Consequently, the Alterman Foods principles are too well established in our law to be swept away merely by claiming that they are dicta. Alterman Foods and the cases citing Alterman Foods are the controlling precedent in the area of foreign substance slip and fall cases.

5. We also cannot otherwise avoid the guidance of our Supreme Court in Alterman Foods by attempting to redefine the term “foreign substances.” Oil on the floor of a garage or service station which was not intentionally applied to the floor by the proprietor or his employees is a foreign substance within the meaning of that term in Alterman Foods. “In the majority of the so-called ‘slip and fall’ cases the plaintiff alleges either that he slipped on a foreign substance — grit, vegetable leaves, trash, objects which have fallen from store shelves, etc. — on defendant’s floor, or that defendant’s floor has been made dangerously slippery by waxing, oiling, or otherwise treating it.” Id. at 622. Thus, because the Supreme Court included “objects which have fallen from store shelves, etc.,” as an example of foreign substances, any reliance on the concept that oil in a garage is an indigenous substance rather than a foreign substance is not well taken. This oil was a foreign substance within the meaning of Alterman Foods, supra.

Further, assuming that Hartley could be treated as a business invitee, to state a cause of action in this case he would be required to show (1) that Precision Tune had actual or constructive knowledge of the oil and (2) that he was without knowledge of the oil or for some reason attributable to Precision Tune was prevented from discovering the oil. Alterman Foods, supra at 623; Coffey v. Wal-Mart, supra at 826. Hartley’s evidence failed to show either. Instead, Hartley showed only that he fell at Precision Tune.

“Of course, merely showing that the plaintiff fell establishes nothing. Proof of nothing more than the occurrence of plaintiff’s fall is insufficient to establish defendant’s negligence. 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.) Coffey v. Wal-Mart, supra at 828. Therefore, even under these circumstances summary judgment for Precision Tune would be warranted.

6. This Court also cannot do away with the obligation of plaintiffs to make use of all their senses to discover and avoid those things that might hurt them. Alterman Foods, supra at 623. To say that the trial court could not infer that Hartley would not avoid an obvious danger relies upon the concept that if Hartley had bothered to look, had seen the oil he claims was on the floor, and had stepped in it anyway, he should still recover. Under this theory, one apparently must assume that someone facing an apparent danger would intentionally disregard it and that a proprietor must somehow take action to protect these customers from themselves. This is not our law, and it is contrary to human nature as well as Alterman Foods and the doctrine of assumption of the risk.

7. Further, allowing Hartley to recover would mean ignoring Alterman Foods’ superior knowledge test. Pretermitting whether Precision Time had constructive or actual knowledge of the oil on the floor is whether Hartley should have known of the oil. “[N]ot only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citation and punctuation omitted.) Alterman Foods, supra at 623. Hartley’s excuse for failing to exercise ordinary care for his own safety is that he was looking at his friend’s son-in-law. That is not a distraction that our law recognizes. Coffey v. Wal-Mart Stores, supra at 829; Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688). Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485), which is not expressly disposed of by a distraction theory, is distinguishable and not controlling.

8. Additionally, this Court must take into account the elements required to establish a cause of action in a foreign substance slip and fall case and not misconstrue the burden on defendant/movants necessary to prevail at summary judgment in these cases. Under Alterman Foods, and the legion of cases relying on that case, to establish his cause of action, Hartley had the burden of showing that Precision Tune had actual or constructive knowledge of the oil and that he was without knowledge of the oil or for some reason attributable to Precision Tune was prevented from discovering the oil. Alterman Foods, supra at 623. These elements are part of the plaintiffs’ cause of action, and, consequently, are not affirmative defenses.

Significantly, however, the Supreme Court has changed one important factor concerning these cases. In Alterman Foods the Supreme Court stated that the movant had the burden of establishing the nonexistence of any genuine issue of material fact. Id. at 625. After Lau’s Corp. v. Haskins, supra, however, this is no longer true. “[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. In so holding, we overrule anything to the contrary. [Cits.]” Id. at 495 (4). Thus, after Lau’s Corp., movants for summary judgment are no longer required to disprove the essential elements of a plaintiff’s case. See also Evans v. Heard, 264 Ga. 239, 241 (442 SE2d 753).

Because Precision Tune discharged its burden under Lau’s Corp. by showing there was no evidence in the record to show that it had actual or constructive knowledge of the substance on the floor, Hartley could not rest on his pleadings, but was required to point to specific evidence giving rise to a triable issue on the superior knowledge issue. Lau’s Corp., supra at 491. As Hartley did not do so, the trial court did not err by granting summary judgment to Precision Tune.

Further, Hartley also had the burden of showing that the oil was on the floor for a length of time sufficient for knowledge of the oil to be imputed to Precision Tune before Precision Tune had any obligation to show its inspection and cleaning procedures. Cases holding that a proprietor must first show that a reasonable inspection and cleaning program was used before the plaintiff is required to show how long the substance was on the floor either were decided before Lau’s Corp. eliminated the burden on movants to establish the nonexistence of any genuine issue of material fact or disprove the plaintiff’s cause of action, or were decided after Lau’s Corp. but erroneously relied upon implicitly overruled authorities decided before the decision in Lau’s Corp.

Therefore, Precision Tune had no burden to show that it had an inspection procedure in place. As Hartley produced no evidence that Precision Tune had any knowledge, actual or constructive, that the oil was on the floor, he failed to cárry his burden on one of the essential elements of his claim (Moore v. Food Assoc., 210 Ga. App. 780, 782 (437 SE2d 832)) and his claim must tumble like a “house of cards.” Lau’s Corp., supra at 491.

9. Because Ms. Hartley’s consortium claim is derivative of her husband’s claim, her claim must also fail.

Accordingly, the trial court did not err by granting summary judgment to Macon Bacon Tune, Inc. d/b/a Precision Tune.

Judgment affirmed.

Andrews, C. J., Pope, P. J., Johnson and Ruffin, JJ., concur. Blackburn, J., concurs specially. Eldridge, J., dissents.