dissenting.
While I dissent from the majority opinion, I write separately to point out the majority’s misconstruction of the Georgia Supreme Court’s opinion in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994). See special concurrence in Baker v. Winn Dixie Stores, 219 Ga. App. 513 (465 SE2d 710) (1995).
I am authorized to state that Judge Johnson joins in this dissent.
On Motion for Reconsideration.
On motion for reconsideration, Wendy’s contends we have misconstrued the Supreme Court’s decision in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485), as Barentine is limited to its facts because it is based upon a narrow offshoot of the distraction theory. The problem with this contention is that the Supreme Court of Georgia does not even mention the distraction theory in Barentine, instead relying on the specific circumstances of Barentine’s fall in determining whether an average shopper, in the same or similar circumstances, should have been looking for and seen the hazard which allegedly caused Barentine to fall, i.e., that genuine issues of material fact remain as to whether “Barentine exercised reasonable care for his own safety in approaching the check-out counter. See Food Giant [v. Cooke, 186 Ga. App. 253, 257 (2) (366 SE2d 781)].” Barentine v. Kroger Co., 264 Ga. 224, 225, supra. In the case sub judice, we follow this line of analysis by holding that, under the specific circumstances now presented on summary judgment, genuine issues of material fact remain as to whether the average fast-food restaurant patron, under the same or similar circumstances faced by Vetrina Axom at the time of her fall, should have been looking for and seen the hazard which allegedly caused Axom’s fall. See Judge Blackburn’s special concurrence in McDonald’s Restaurant &c. v. Banks, 219 Ga. App. 667 (466 SE2d 240) (1995).
Next, Wendy’s contends that this Court inaccurately conveys that the water hazard on the floor was “transparent,” pointing out that Vetrina Axom did not testify (in her deposition) that the water hazard was “transparent” and that she only alleged in her complaint that the water she slipped in was “colorless.” In the case sub judice, Wendy’s had the burden, as the moving party on summary judgment, to pierce Axom’s claim that the water hazard was “colorless.” Wendy’s, however, did not seek to pierce this allegation by questioning Axom (during her deposition) about the specific coloration of the allegedly “colorless” water. Accordingly, since an appellate court is bound to construe the evidence with every reasonable inference and presumption in favor of the non-moving party’s claims, Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245), we stand *628by our characterization that the allegedly “colorless” water hazard was “transparent.” In other words, we cannot say that Vetrina Axom’s testimony that she could have seen the water hazard had she been looking down (over her purse and the food bag and drink she had just purchased from Wendy’s) negates our statement that the allegedly “colorless” water was “transparent.”
Decided December 4, 1995 Reconsideration denied December 20, 1995 Bush, Crowley, Leverett & Leggett, Michelle L. Schieber, Charles R. Free, for appellant. Jones, Cork & Miller, Carr G. Dodson, H. J. Strickland, Jr., W. Kerry Howell, Shawn M. Story, for appellee.Motion for reconsideration denied.