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

Andrews, Judge,

dissenting.

Bishop was injured when the bench he sat on at the Kentucky Fried Chicken (KFC) restaurant suddenly collapsed. He claims KFC was negligent and liable for his injuries because of an unsafe condition on the premises caused by defective construction of the bench.

Assuming the bench was defectively constructed and collapsed *6because it was secured to the wall by sheetrock screws instead of wood screws, as Bishop’s expert contractor states, there is no evidence in the record to support the imposition of liability on KFC for the collapse of the bench caused by the defective construction. The only basis for imposing liability on KFC for the construction defect is to show that it had superior knowledge of the existence of the defect. Pound v. Augusta Nat., 158 Ga. App. 166, 167 (279 SE2d 342) (1981). Assuming Bishop could not observe the defect in the bench, there is no evidence that KFC knew or should have known of the unsafe condition created by the use of sheetrock screws to attach the bench to the wall when it was constructed.

There is no evidence that KFC had actual or constructive knowledge of the defective construction by building the bench or by supervising or directing its construction. See Flagler Co. v. Savage, 258 Ga. 335, 337 (368 SE2d 504) (1988). There is no evidence that, prior to its collapse, the bench was loose or otherwise exhibited any condition that would have put KFC on notice of the defective construction. The detailed inspection of the benches in the KFC restaurant by Bishop’s expert contractor in which he observed that the bench which collapsed had been repaired with wood screws and some of the other benches were loose because of broken sheetrock screws took place over two years after the accident. The only evidence as to the condition of the bench prior to the accident came from KFC’s employee who indicated that all the benches had been inspected shortly before the accident and there was no sign of looseness in any of the benches. Bishop did not claim the bench appeared loose or jiggled when he sat on it before it collapsed. Rather, he deposed that the bench suddenly came loose from the wall and collapsed forward when he sat on it “like an '8 to 15 inch drop from the stable position to the broke position” and that it appeared to him the screws just pulled out of the wood. KFC demonstrated that it had no actual knowledge of the construction defect and no constructive knowledge because the defective condition was not discoverable by a reasonable inspection of the premises. Barksdale v. Nuwar, 203 Ga. App. 184 (416 SE2d 546) (1992). The record shows only that the bench appeared to be in good condition but then suddenly collapsed when Bishop sat on it.

In response to KFC’s motion for summary judgment, it was incumbent on Bishop to produce evidence to support his claim that KFC negligently failed to correct an unsafe construction defect of which it had superior knowledge. Having failed to produce any evidence that KFC had knowledge of the defect because it built the bench, or supervised or directed the building of the bench, or otherwise knew about or should have discovered the defective construction of the bench, there is an absence of evidence to support the essential elements of the claim. Id.; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 *7SE2d 474) (1991). Accordingly, the trial court correctly granted summary judgment in favor of KFC.

Decided June 27, 1996. McKenney, Jordan & Carey, G. McGregor Jordan, Jr., for appellant. Fain, Major & Wiley, Thomas E. Brennan, John K. Miles, Jr., for appellee.

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