Jones v. Ingles Markets, Inc.

BIRDSONG, Presiding Judge,

concurring specially.

Although I concur fully with all that is said in the majority opinion, I write separately to express my disagreement with several of the views stated in Judge Eldridge’s special concurrence. Nothing in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403), states that Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), is no longer applicable to motions for summary judgment in slip and fall cases. For the most part, the special concurrence stretches the holdings of Robinson far beyond anything the Supreme Court intended. Moreover, these views are contrary to the recent seven member whole court decision in Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (498 SE2d 748). As much as anyone might disagree with the Sharfuddin decision or wish that Robinson had gone further than it did, these opinions are nevertheless binding precedent and must be followed until they are modified, overruled or reversed.

The special concurrence’s quotation from Robinson quoting Hilsman v. Kroger Co., 187 Ga. App. 570 (370 SE2d 755), is misleading: Robinson quoted Hilsman to illustrate the law was prior to Lau’s Corp., and not to state what the law would be after Robinson. See Robinson, supra at 747.

Additionally, except for cases under the second prong of the elements of a foreign substance slip and fall case under Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327), nothing in Robinson states that a defendant-movant can no longer discharge its burden by pointing out the absence of evidence to support the nonmoving party’s case. Sharfuddin, supra. If our Supreme Court had intended such a result, it certainly could easily have done so by stating merely what the special concurrence alleges that it did. Instead, the Supreme Court carefully crafted an opinion that only modified the application of Lau’s Corp. as it concerned the second prong of a slip and fall case under Alterman Foods.

*343Further, Robinson does not hold or remotely suggest that merely pleading that the defendant had constructive or actual knowledge of the existence of a hazard is sufficient to establish the knowledge element. Robinson makes clear that plaintiffs retain the burden to prove actual or constructive knowledge. Robinson, supra at 747-749. Therefore, if the knowledge element of a slip and fall cause of action is challenged in a motion for summary judgment, a plaintiff has the burden of responding in the manner prescribed in Lau’s Corp.