Baker v. Winn Dixie Stores, Inc.

Smith, Judge,

concurring specially.

While I concur in the majority opinion, I write separately to point out what I believe to be a serious misconstruction of the Georgia Supreme Court’s opinion in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994). The dissent contends, incorrectly, that Barentine involved a “self-induced” distraction created by the plaintiff alone. In Barentine, the cashier was not at his post, and Barentine was distracted by the necessity of calling him to the checkout line. The rule, then, is simply that some conduct on the part of the employee must distract the plaintiff. The dissent’s approach would abrogate the well-established distinction between a “distraction” created by the proprietor and one which is “in the nature of being self-induced.” Riggs v. Great A & P Tea Co., 205 Ga. App. 608, 610 (423 SE2d 8) (1992).

This case is unlike Grovner v. Winn Dixie Stores, 218 Ga. App. 495 (462 SE2d 427) (1995), which involved the active concealment of a hazard by the proprietor. In Van Dyke v. Emro Marketing Co., 211 Ga. App. 744 (440 SE2d 469) (1994), both a visible and a concealed hazard were present, and the plaintiff was unaware of the true extent of the danger. Neither of these circumstances is present here, and the trial court properly granted summary judgment in favor of Winn Dixie.

I am authorized to state that Judge Johnson joins in this special concurrence.