Johnston v. Grand Union Co.

Banke, Presiding Judge,

concurring in part and dissenting in part.

1. I cannot agree with the majority’s statement that “an admission against interest by an employee-agent is admissible . . . only so long as it is not hearsay.” Pursuant to OCGA § 24-3-33, an out-of-court declaration made by an agent “during the existence and in the pursuance of his agency,” is admissible against the principal as an *273exception to the rule against hearsay. In the case before us, the red-haired woman’s purported declaration that “there was something wrong with the door” failed to qualify as an admission by an agent against the principal’s interest within the contemplation of OCGA § 24-3-33 not because it was hearsay but because, even assuming that the woman was a store employee, she was not shown to have made the statement “while ‘acting within the scope of [her] authority during the existence and pursuance of [her] agency. . . .’ (Cit.)” Gordon v. Athens Convalescent Center, 146 Ga. App. 134, 135 (245 SE2d 484) (1978). Accord Swift & Co. v. Lawson, 95 Ga. App. 35, 53 (97 SE2d 168) (1957); Royal Oil Co. v. Hooks, 111 Ga. App. 779 (2) (143 SE2d 441) (1965).

The statement also failed to qualify for admission under the res gestae exception to the hearsay rule. As pointed out by the majority, to be admissible under the res gestae exception it is not enough that the statement have been made contemporaneously with the occurrence to which it relates, it must also have been made under circumstances indicating that it was “free of all suggestion of device or afterthought.” OCGA § 24-3-3. See Augusta &c. R. Co. v. Randall, 79 Ga. 304, 311-12 (4 SE 674) (1887). Generally speaking, this means that' the statement must be a “spontaneous” or “excited” utterance arising from the incident. See Glens Falls Indem. Co. v. Gottlieb, 80 Ga. App. 634, 636 (56 SE2d 799) (1949). The remark in question did not purport to be a spontaneous or excited utterance stemming from the accident itself but rather an expression of knowledge acquired in the past concerning the condition of the doors. Thus, it was properly excluded. Accord Nordmann v. Intl. Follies, 148 Ga. App. 77, 79 (5) (250 SE2d 794) (1978).

2. Nevertheless, I cannot agree the appellee was entitled to summary judgment. The appellant was not required to come forward with evidence supporting the allegations of her complaint until the appellee, as movant, produced evidence which rebutted those allegations or otherwise controverted the appellant’s claim. See generally Henderson v. Atlanta Transit System, 133 Ga. App. 354, 356 (210 SE2d 845) (1974). In a premises liability case such as this one, the defendant may establish its entitlement to summary judgment through uncontroverted evidence showing that it had no actual knowledge of the alleged defective or dangerous condition which gave rise to the plaintiff’s injury and that its lack of such knowledge was reasonable under the circumstances. Accord Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987); Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178) (1987). While this case is concededly a very close one, I do not believe the record currently before us contains such evidence.

In support of its motion for summary judgment, the appellee re*274lied upon the affidavit of its store manager to the effect that, prior to the incident in question, he was without actual knowledge of any previous incident in which the electronic sliding doors had closed unexpectedly upon someone entering or leaving the store. Assuming that the doors had been in regular use for some period of time prior to the incident, I am willing to accept the proposition that their continuous operation, free from any malfunctions posing a danger to persons using them, would have obviated the need for further inspection or testing in this regard. However, the manager’s affidavit does not, strictly speaking, indicate that no such malfunctions had previously occurred or that none had been reported but merely that he himself had no actual knowledge of any such incidents. This may mean simply that he himself had not seen any. Construing his testimony most strongly in favor of the appellant and against the appellee as the moving party, I am thus led somewhat reluctantly to the conclusion that the appellee failed to establish its entitlement to summary judgment in this case. See generally Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971). Cf. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 29 (343 SE2d 680) (1986).

I am authorized to state that Presiding Judge McMurray and Judge Benham join in this opinion.