Bishop v. KFC NAT. MANAGEMENT CO., INC.

Beasley, Chief Judge,

dissenting.

The trial court was correct in granting summary judgment to defendant because it pointed out that there is “an absence of evidence to support the nonmoving [plaintiff’s] case” and plaintiff points to no “specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). As in Ballard v. Southern Regional Med. Center, 216 Ga. App. 96, 98 (1) (453 SE2d 123) (1995), there is no evidence that KFC had actual knowledge of the alleged defect and no evidence that the looseness of the bench at about 1:00 p.m. “existed for a sufficient amount of time to allow a reasonable inspection to discover it in order to charge [KFC] with constructive knowledge.”

To the contrary and without contradiction, the defendant’s head shift supervisor, who was working at the restaurant when the incident occurred, testified that she had visually inspected the bench earlier that same morning, that a number of customers had sat on that seat the same day before Bishop sat on it, and that no one complained about it. After she started her shift at 8:00 a.m., just before she opened the doors for customers at 10:30, she checked the benches and tables for stability to be sure they were safe. She did so by touching them, sort of pulling with her hands. The benches were scrubbed every day with a cloth towel and spray. She first became aware that *5the bench was loose when plaintiff came up to the front counter where she was packing orders and told her it was loose, after his alleged fall. He informed her and then left with the woman who was with him.

“[T]here is no duty [on a proprietor of premises] to discover a defect which is not manifested until the incident causing injury.” Id. And as we repeated in Talton v. Perimeter Place Assoc., L.P., 214 Ga. App. 505, 506 (448 SE2d 241) (1994), “an occupier is under no duty to continuously patrol the premises to discover defects.” “A landowner is not an insurer of an invitee’s safety.” (Punctuation omitted.) Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992).

As to the nature of the problem, Bishop testified that when he inspected the bench right after the incident, it looked like the wood had given way and a piece of it remained around the screws, which were still in the backing of the seat. He never said the screws were broken, which is what his expert testified would cause the bench to loosen. He did say, “The screws didn’t pull up.” He also said three times that they “looked like” wood screws as follows. He pulled the back of the bench forward to look behind it “and there were three looked like wood screws. They might not be wood screws, but that’s what they looked like. Went into a, what appeared to be a two-by-four” behind the bench attached to the wall. In response to whether he saw “what looked like had been wood screws,” he replied “yes” without equivocation. He said two or three pieces of what looked like decayed wood were on the floor after he fell. Sheetrock screws which plaintiff’s expert saw over two years later on other benches were black.

Even if it could be reasonably inferred that the wrong screws were being used on the bench so as to cause it to become loose when plaintiff came in contact with it, a product defect, there is a complete absence of evidence that defendant failed to exercise reasonable care in inspecting and keeping the premises in a safe condition and thus had superior constructive knowledge of the defect. Flood v. Camp Oil Co., 201 Ga. App. 451, 453 (411 SE2d 348) (1991). There is an absence of evidence that this defendant manufactured or constructed the bench, although it is alleged in the recast complaint.

I am authorized to state that Judge Andrews joins in this dissent.