Jones v. Ingles Markets, Inc.

Eldridge, Judge,

concurring specially.

In my view, the majority opinion contains errors that will impact on future decisions of this Court and may make the granting of summary judgment to defendants “business as usual,” despite the clear holding of Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), to the contrary.2

1. Initially, the majority states that “our reconsideration on remand is limited to consideration of the effect of Robinson on the second prong of Alterman Foods [u. Ligón, 246 Ga. 620 (272 SE2d 327) (1980)].”

Thereafter, ignoring its self-imposed limitation, the majority — in a footnote — cites Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), asserting that under the first prong oí Alterman Foods, an owner/occupier may still “prevail on summary judgment by simply pointing out the absence of evidence in the record that the defendant had actual or constructive knowledge of the hazard.”

Aside from being obviously unnecessary for the disposition of this case, such interpretation is incorrect.

Robinson did not “leave intact” the first prong of Alterman Foods as it has been viewed for years by this Court in relation to Lau’s Corp, See Robinson, supra at 747 (rejecting our decisions on this issue in Blake v. Kroger Co., 224 Ga. App. 140 (480 SE2d 199) (1996); Coffey v. Wal-Mart Stores, 224 Ga. App. 824 (482 SE2d 720) (1997); and Kroger Co. v. Farley, 225 Ga. App. 766 (484 SE2d 742) (1997).

Quite to the contrary. While explaining the need to regain balance in the evidentiary burdens in summary judgment on slip and fall cases, Robinson removed such cases from the purview of a Lau’s Corp. analysis. Evidentiary burdens were specifically reestablished “to where they were at the time Alterman Foods was decided,” 11 years before Lau’s Corp. Robinson, supra at 748. Now, after Robinson, the evidentiary burdens on summary judgment in premises liability/slip and fall cases are as follows:

(a) Alterman Foods’ prong one, a defendant’s constructive or *344actual knowledge of the existence of the hazard, is “established or assumed for purposes of . . . summary judgment” simply by being pled in the complaint: “The rule has been, and continues to be, that on motion for summary judgment, regardless of which party would have the burden of proof at trial, if a material fact has been alleged in the complaint, can be reasonably drawn from the pleadings, or has been raised by the evidence placed in the record by any party, the defendant-movant has the burden of proving the non-existence of that fact.” (Emphasis supplied.) Robinson, supra at 747, citing with approval Hilsman v. Kroger Co., 187 Ga. App. 570, 572 (370 SE2d 755) (1988), for the proper placement of evidentiary burdens at the time Alterman Foods was decided in 1980.

(b) After a plaintiff pleads a defendant’s negligence, the burden is on the defendant to “presente ] evidence that the plaintiff’s injuries were proximately caused either by the plaintiff’s voluntary negligence [showing plaintiff intentionally assumed the risk] ... or by the plaintiff’s casual negligence [showing plaintiff did not use ordinary care].” Id. at 748.

(c) It is “[o]nly after the defendant has produced evidence of the plaintiff’s negligence does the plaintiff have the burden of producing rebuttal evidence.” (Emphasis supplied.) Id. at 748.

Accordingly, “simply pointing out the absence of evidence in the record” no longer meets a defendant’s affirmative evidentiary burden in a motion for summary judgment in a slip and fall case on either prong of the Alterman Foods test. “By re-establishing the evidentiary burdens to where they were at the time Alterman Foods was decided, we lighten the load placed on plaintiffs by more recent judicial decisions, and place on defendants that which is normally required of a defendant — the establishment of a defense to liability.” Robinson, supra at 748.

For the majority to assert otherwise is to ignore the plain language of Robinson.

2. In the majority opinion, the focus continues to be on the “duties of the invitee” and the burden the invitee must carry in order to survive a motion for summary judgment. In fact, Robinson stresses the duty of the owner/occupier to keep its premises safe for an invitee. In this regard, the invitee: (1) “is not bound to avoid hazards not usually present on the premises and which the invitee, exercising ordinary care, did not observe”; (2) “is not required, in all circumstances, to look continuously at the floor, without intermission, for defects in the floor”; (3) “is not obliged to inspect the premises to discover latent defects nor even to observe patent defects”-, and (4) “ ‘is not barred of a recovery simply because by extreme care on his part it would have been possible for him to have discerned the articles left negligently in the aisles or passageways customarily *345used by the store patrons at the merchant’s tacit invitation.’ ” (Emphasis supplied.) Id. at 741.

Nor may summary judgment be granted based upon “a hazard, no matter its size, [which] was in ‘plain view’ and . . . could have been seen had the invitee looked at the ground.” (Emphasis supplied.) Id. at 742. Under Robinson, the “plain view” doctrine has been returned to sanity. It is applied only “to a hazard in plain view at a location where it is customarily found and can be expected to be.” Id. at 743.

3. Finally, to the extent the majority opinion implies that an invitee demonstrates the exercise of reasonable care for his safety only upon proof “that something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality caused him not to look at the site of the hazard” (the “distraction doctrine”), such implication is also an incorrect interpretation of Robinson.

The “distraction doctrine” is discussed in Division 2 (a) of Robinson. The court discusses the “distraction doctrine” as one of the “troubling aspects of the judicial treatment of the invitee’s exercise of ordinary care.” Id. at 744. Distraction is simply one way in which an invitee may demonstrate the exercise of reasonable care — after the defendant has established a defense to liability.

However, the standard for the exercise of ordinary care is set out in Division 1 of Robinson. Id. at 741. That standard is “whether, taking everything into account, the act is one which the common sense of mankind pronounces wants of such prudence as the ordinarily careful person would use in a like situation.” (Punctuation omitted.) Id. Obviously, meeting the above standard does not demand proof of the “distraction doctrine.”

With regard to premises liability/slip and fall, it should not be business as usual. To my mind, the plain holding of the Robinson decision cannot be ignored. Nor can it be manipulated by pulling together unrelated parts of the decision and placing an emphasis on the opinion’s cites to Alterman Foods.

And, herein, this case should not be reversed simply because of its “factual similarity” to Robinson. This case should be reversed because this Court recognizes and acknowledges that the law requires reversal. Under Robinson, we can no longer find, as a matter of law, that an invitee loses on summary judgment simply because she could have looked at the floor and seen the hazard, but did not. That was our original holding in this case. Under the law as articulated in Robinson, the grant of summary judgment was error.

*346Decided March 19, 1998. Robert P. McFarland, for appellant. Chambers, Mabry, McClelland & Brooks, Emory S. Mabry III, Robert M. Malcom, for appellee.

See also Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (498 SE2d 748) (1998) (Birdsong, P. J., for the majority; Eldridge, J., dissenting).