Harpe v. Shoney's, Inc.

McMurray, Presiding Judge,

dissenting.

There is evidence that defendant was negligent per se, due to a violation of the applicable building code in maintaining the ramp without a handrail. Evidence of plaintiffs injuries from her fall is also present in the record. Thus, three of the four elements of a negligence claim, as stated by the majority in Division 2, have not been negated by uncontroverted evidence.

At issue in the case sub judice is the third element of a negligence claim, that is, a causal connection between the breach of duty and the resulting injury. See Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693). Affirmance of the grant of summary judgment is proper only if defendant has satisfied its burden to establish through uncontroverted evidence that there was no causal connection between the absence of the handrail and plaintiff’s fall. Reed v. Ed Taylor Constr. Co., 198 Ga. App. 595, 596 (402 SE2d 346). In my view, defendant has failed to satisfy this burden, therefore, I respectfully dissent.

Before addressing the issues at hand, some clarification as to the facts may be useful. First, it should be noted that plaintiff had not previously traveled down the ramp in question. On plaintiff’s previous visits to the restaurant she had entered and exited by another route. Thus, plaintiff had not previously negotiated any hazards posed by going down, as opposed to up, the ramp. Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477); Pippins v. Breman, 152 Ga. App. 226, 228 (262 SE2d 477). Furthermore, plaintiff’s testimony is neither ambivalent nor contradictory on the point that she was on the ramp when she slipped and fell.

The majority has misdirected its attention to the fact that plaintiff did not know what caused her feet to slip. Such a lack of information has been fatal to an injured person’s claims in many slip and fall cases, since identification of what has caused a slip is often the only means of establishing the fault or breach of duty of a proprietor, as well as the cause of the fall and resulting injuries. See Hospital Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103); Gross v. Frank’s Warehouse Foods, 192 Ga. App. 539, 541 (385 SE2d 688). This case is different in that the defect at issue here is not the cause of the slip, but the absence of a handrail intended to prevent a fall *595and injury resulting from any slip by a person on the ramp. The absence of the handrail is foreseeably a contributing cause of the fall of any person who slips while on the ramp.

Decided March 5, 1992 Reconsideration denied March 30, 1992 John G. Hunter, for appellant. Adams, Gardner & Ellis, George L. Lewis, for appellee.

The reason plaintiff’s feet slipped is not material to her claim. The causation question which remains is, given that plaintiff’s feet slipped due to some unknown reason, would plaintiff have fallen and sustained her injuries if the required handrail had been present. Defendant has presented no evidence on this issue and even if it had such would be controverted by plaintiff’s opinion testimony that she would not have fallen if there had been a handrail. It follows that since neither the causation element nor any element of plaintiff’s claim has been negated by uncontroverted evidence, summary judgment should not have been granted in favor of defendant.

I am authorized to state that Presiding Judge Carley, Judge Pope and Judge Cooper join in this dissent.