Johnson v. Publix Supermarkets

POPE, Presiding Judge,

dissenting.

I appreciate the majority’s efforts to clarify the law on this issue, and thus agree that to the extent Prudential Bank v. Moore, 219 Ga. App. 847 (467 SE2d 7) (1996), could be construed as relying upon the “peculiar risk” doctrine, it should be overruled. This Court has determined that the appropriate test for determining whether an incident arises out of employment under the Workers’ Compensation Act is instead the “positional risk” doctrine. Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 568 (1) (263 SE2d 455) (1979). But I must respectfully dissent from the majority opinion because I do not believe that Johnson would be entitled to compensation under that doctrine.

Although the administrative law judge drew very definite conclusions about the condition of the Publix terrazzo flooring, there was no evidence in the record to support these conclusions. There was no evidence regarding the nature of terrazzo flooring, the methods of cleaning or the slickness of its surface relative to other flooring. In fact, the only evidence regarding the state of the flooring was that it had been waxed at some unknown point in time and the store manager’s uncontradicted opinion that it was not slippery at the time of the fall. It is apparent that the ALJ drew the conclusions regarding the properties of terrazzo flooring from independent knowledge or experience.

While a trial judge is entitled to take judicial notice of certain matters, such notice is limited to matters that are indisputably of common knowledge:

Under Georgia law, courts may take judicial notice of “matters of public knowledge . . . without the introduction of *544proof.” [OCGA § 24-1-4.] The rule permits courts to judicially notice “that which is within the knowledge of most men. The test is (1) whether the fact is one of common, everyday knowledge that all men of average intelligence are presumed to know, and (2) whether it is certain and indisputable.”

(Footnotes omitted.) SEC, Inc. v. Puckett, 252 Ga. App. 422, 425 (555 SE2d 198) (2001). I cannot say that the natural properties of terrazzo flooring in comparison with other flooring surfaces noted by the ALJ are within the common, everyday knowledge of the average man or that those properties are certain and indisputable. Compare, e.g., Wilkinson v. Rich’s, Inc., 77 Ga. App. 239, 244 (1) (48 SE2d 552) (1948) (finding that it is a matter of common knowledge that rugs have a tendency to slip).

Nor do I find that the ALJ’s conclusions fall under the “common sense rule” of presumptive evidence defined under OCGA § 24-1-1 (6) and upon which Johnson relies. See Tierce v. State, 122 Ga. App. 845, 849 (178 SE2d 913) (1970) (Evans, J, concurring specially). The only evidence regarding the state of the terrazzo flooring on the day of the accident was the manager’s opinion that it was not slippery; thus, the evidence does not support the ALJ’s presumption that it was. See generally Keating v. Dept. of Natural Resources, 140 Ga. App. 796, 799 (3) (232 SE2d 84) (1976). Accordingly, the superior court could properly find that there was no evidence to support the ALJ’s findings that the fall was caused specifically by the slickness of the flooring.

The issue then becomes whether the ALJ and the appellate division nevertheless correctly concluded that Johnson’s fall arose out of her employment, entitling her to compensation. To be compensable under the Workers’ Compensation Act, an injury must occur in the course of the employment and must also arise out of the employment. OCGA § 34-9-1 (4). Publix concedes that the fall occurred in the course of Johnson’s employment,1 but disputes that it arose out of her employment.

“An injury arises out of the employment when, considering all the circumstances, there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.” (Citation and punctuation omitted.) Betts v. Med-Cross Imaging Center, 246 Ga. App. 873, 876 (1) (542 SE2d 611) (2001). Here, Johnson has the burden of showing the causal connec*545tion. Hulbert v. Domino’s Pizza, 239 Ga. App. 370, 372 (2) (521 SE2d 43) (1999). To make that connection Johnson was required to show that the causative hazard was

incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. The injuries, however, need not arise from something peculiar to the employment. . . .

(Citation and punctuation omitted.) Id. at 372-373 (2).

The “positional risk doctrine” adopted by this Court provides that “[w]here the duties of an employee entail his presence (at a place and a time), the claim for an injury there occurring is not to be barred because it results from a risk common to all others unless it is also common to the general public without regard to such conditions, and independently of place, employment or pursuit.” (Citations and punctuation omitted; emphasis supplied.) Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. at 567 (1).

In reviewing the record, the superior court concluded that there was no evidence to show that Johnson’s “injuries were the result of anything other than an idiopathic fall which, by definition, did not arise out of [her] employment.” The term “idiopathic” is defined as “arising spontaneously or from an obscure or unknown cause” or as “peculiar to the individual.” Merriam Webster’s Collegiate Dictionary (10th ed. 1993). Here, there is no evidence to show what caused the fall other than the manager’s statement that Johnson said that she had tripped over her own feet. Although Johnson denied making such a statement, there is no evidence to connect the cause of the fall to the floor, or to any other aspect of Johnson’s employment.

Under the positional risk doctrine, an employee must show that the work brought him into the range of danger:

This theory is that for the injury to be compensable it is only necessary for the claimant to prove that his work brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment.

Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. at 567. But where, as here, there is no evidence that the fall resulted from any cause that could not have happened anywhere, under any conditions, at any *546time, there is no causal connection. Thus, I would affirm the decision of the superior court because Johnson failed to show any causal connection between her work and her injuries.

Decided July 16, 2002 Boston Passante, Russell M. Boston, Lauren L. Benedict, for appellant. Schenck & Associates, Michael H. Friedman, for appellees.

I am authorized to state that Presiding Judge Andrews and Judge Ruffin join in this dissent.

The term “in the course of” employment refers to “time, place and circumstances under which the accident took place.” (Punctuation omitted.) State Dept. of Labor v. Yates, 131 Ga. App. 71, 72 (205 SE2d 36) (1974).