Baldwin County Hospital Authority v. Coney

Banke, Presiding Judge,

concurring specially.

I agree that the defendant’s motion for summary judgment was properly denied. However, I am not persuaded by the majority’s efforts to redeem Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986), and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987). For the reasons expressed in Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523) (1988), I continue to believe those cases constitute a source of inconsistency and confusion in the law with respect to the summary adjudication of “slip-and-fall” claims involving constructive knowledge; and I would consequently overrule them.

“The basis of the proprietor’s liability is his superior knowledge, or his superior opportunity to discover a dangerous condition, as compared with the opportunity of his invitee.” Belk-Gallant Co. v. Cordell, 107 Ga. App. 785, 788 (131 SE2d 575) (1963). To allege that a proprietor had superior “constructive knowledge” of a condition is simply another way of alleging that he had a superior “opportunity to discover” it. Such an allegation may be supported by evidence tending to prove that the condition had existed on the premises long enough to have been detected through adherence to reasonable in*343spection procedures; conversely, such an allegation may be negated by evidence showing that reasonable inspection procedures were in fact followed on the occasion in question. See, e.g., Food Giant v. Cooke, 186 Ga. App. 253, 256 (366 SE2d 781) (1988); Winn-Dixie of Green-ville v. Ramey, 186 Ga. App. 257, 259 (366 SE2d 785) (1988).

Where the defendant-proprietor in a slip-and-fall case moves for summary judgment in the face of an allegation that he had superior constructive knowledge of the condition which caused the injury, he may be required to negate the “inadequate inspection” theory of liability regardless of whether it has been specifically alleged; for it is his burden as movant to “negate at least one essential element entitling plaintiff to recovery . . . under every theory fairly drawn from the pleadings and evidence (cits). . . .” Henderson v. Atlanta Transit System, 133 Ga. App. 354, 356 (210 SE2d 845) (1974). (Emphasis from original.) Yet, as I read this court’s decisions in Bright v. Food Giant and Newman v. Ruby Tuesday, Inc., they hold that an allegation of constructive knowledge may be summarily rejected in a slip- and-fall case based upon the mere absence from the record of evidence tending to support the inadequate inspection theory of liability, rather than upon the presence of evidence tending to negate it. See Shiver v. Singletary, supra, 186 Ga. App. at 748-749. Such a standard of review would normally be improper on motion for summary judgment in that it would shift the burden of proof with respect to a material issue from the movant to the respondent.

Only in the rare event that a claimant-respondent, after being furnished a full and fair opportunity to do so, has demonstrated a complete inability or unwillingness to support an essential element of his case with respect to which he will have the burden of proof at trial is there authority for granting summary judgment to a defendant-movant based on the mere absence from the record of evidence supporting the claim. See, e.g., Celotex Corp. v. Catrett, 477 U. S. 317 (106 SC 2548, 91 LE2d 265) (1986); Munna v. Lewis, 181 Ga. App. 860 (2) (354 SE2d 181) (1987); Martin v. Newman, 162 Ga. App. 725 (1), 726 (293 SE2d 18) (1982). While the plaintiff in the present case has yet to come forward with evidence supporting the allegations of her complaint, there has been no suggestion that she is unwilling or unable to do so, nor were such circumstances shown in Bright v. Food Giant or Newman v. Ruby Tuesday, Inc., supra.

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