Jones v. Ingles Markets, Inc.

Eldridge, Judge,

concurring specially.

While I concur with the entire opinion of the Court, I feel it necessary that this special concurrence be added to raise certain issues that must be kept foremost in view when dealing with slip and fall cases. The two-prong test of Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980) was not the basis for the holding of the Supreme Court in that case and is obiter dictum that has become the basis for subsequent analysis of slip and fall cases as holy writ. The Alterman two-prong analysis appears to shift the burden of proof as to affirmative defenses, contributory negligence and assumption of the risk, to the plaintiff, when such burden of proof on motion and trial rests upon the defendant; in all other areas of negligence, except slip and fall cases, the defendant has the burden of proof as to affirmative defenses. Alterman never reversed the pre-existing body of case law which placed the burden of proof for an affirmative defense on the defendant. The elements of the affirmative defense of contributory negligence include the duty to exercise ordinary care to discover a patent danger, i.e., the defendant’s negligence or a danger created by another, to exercise ordinary care to avoid the danger when known or should have been known, and the opportunity to avoid the danger. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991); Bowman v. Richardson, 176 Ga. App. 864, 865 (338 SE2d 297) (1985).

The defendant carried its burden of proof on summary judgment to make out all of the elements of the affirmative defense of contributory negligence as a prima facie affirmative defense. Under OCGA § 9-11-56 (e) the burden of coming forward with evidence to show a material issue of fact for jury determination as to such defense *499shifted to the plaintiff; the plaintiff failed to create a material issue of fact as to any element of the defense of contributory negligence. Therefore, summary judgment was appropriate as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided September 4, 1997 Reconsideration denied September 12, 1997 Robert P. McFarland, for appellant. Chambers, Mabry, McClelland & Brooks, Robert M. Malcom, Emory S. Mabry III, for appellee.