Benefield v. Tominich

BLACKWELL, Judge,

concurring dubitante.

I concur dubitante28 in the opinion of the majority because it is a correct application of a principle of law adopted 13 years ago by our Court sitting en banc, and although I doubt the soundness of that principle, this case is not, I think, a proper occasion for the Court to revisit it.

*612Since the decision of our Supreme Court in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), it has been settled that a defendant is entitled to summary judgment if the plaintiff is unable to come forward with evidence sufficient to satisfy each essential element of proof for which he bears the burden. And since the decision in Alterman Foods v. Ligón, 246 Ga. 620 (272 SE2d 327) (1980), it also has been settled that, when a plaintiff seeks to recover in premises liability for injuries sustained when he, while visiting the premises of another, slipped upon a foreign substance and fell, the plaintiff must prove, among other things, “that the defendant had actual or constructive knowledge of the foreign substance.” 246 Ga. at 623. Alterman also made clear that, when a plaintiff seeks to prove constructive knowledge with evidence that the defendant failed to exercise reasonable care to inspect and keep the premises in a safe condition, the plaintiff must come forward with evidence “that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant.” Id. at 622-23. To my knowledge, our Supreme Court never has sounded a retreat from these requirements of Alterman, although it has adjusted other elements of the proof required in slip-and-fall cases. See, e.g., Robinson v. Kroger Co., 268 Ga. 735, 748-49 (493 SE2d 403) (1997).

It would seem then, under Lau’s Corp. and Alterman, that, when a plaintiff in a slip-and-fall case seeks to prove constructive knowledge with evidence that the defendant failed to exercise reasonable care to inspect and keep the premises in a safe condition, the defendant is entitled to summary judgment if the plaintiff cannot produce any evidence of the length of time that the foreign substance was on the floor. But our Court, sitting en banc, decided otherwise in Straughter v. J. H. Harvey Co., 232 Ga. App. 29 (500 SE2d 353) (1998). In that case, we said that, “in order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” 232 Ga. App. at 30 (1).

It is the principle adopted in Straughter on which the majority relies when it concludes that Taylor’s Gin Store is not entitled to summary judgment in this case,29 and assuming the soundness of the principle, the majority, I think, reaches the correct result. But I have serious doubts about the soundness of the principle. My reasons for doubting it include those set forth in the well-reasoned dissenting *613opinion in Straughter, see id. at 33-40 (Andrews, J., dissenting), as well as the absence of any endorsement of the principle by our Supreme Court in the 13 years since Straughter was decided.

But my doubts about the soundness of the Straughter principle are not reason enough to revisit it in this case. As a general principle, “[t]he application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence.” Etkind v. Suarez, 271 Ga. 352, 357 (5) (519 SE2d 210) (1999). And without question, “[i]t is the duty of appellate judges to make concessions to stare decisis.” Partridge v. State, 218 Ga. App. 580, 583 (462 SE2d 415) (1995) (Beasley, C. J., concurring specially). Such concessions are, in my view, especially appropriate when the precedent to which we defer was decided not merely by a panel of this Court, but by the full Court sitting en banc. After all, to reconsider a decision of the en banc Court, we would have to convene another en banc Court, something that is “costly to an appellate court in terms of consumption of its always limited resources of judicial time and energy.” Lewis v. McDade, 250 F3d 1320, 1320 (11th Cir. 2001) (Edmondson, J., concurring in denial of suggestion of rehearing en banc). We should not revisit earlier decisions—especially decisions rendered en banc—without a compelling reason.

Here, I see no compelling reason to revisit Straughter. The application of the Straughter principle in this case implicates neither the constitutional prerogatives of the People nor the constitutional rights of any individual. This case is a dispute between private parties, not between an individual and his government. There is no indication that the principle has caused confusion, has been difficult for the trial courts to apply consistently, or has led to conflicting decisions in our Court. I am aware of no intervening legislation or decision of our Supreme Court that further erodes the already questionable foundation of the principle. And no party in this case even asks us to revisit the principle, which, in my view, is a consideration of great significance. To the contrary, both parties embrace the analytical framework adopted in Straughter, disagreeing merely about its proper application in this case. In these circumstances,30 I am willing to adhere to Straughter for the purposes of this appeal, notwithstanding my serious doubts about the correctness of that decision.

Accordingly, I concur dubitante.

I am authorized to state that Judge Dillard joins in this opinion.

*614Decided March 22, 2011. Jack F. Witcher, Daniel B. Greenfield, for appellant. Mozley, Finlayson & Loggins, Allison M. Escott, for appellee.

A concurrence dubitante is a concurrence that is given doubtfully. Unlike a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said—which, according to our Rule 33 (a), renders a decision physical precedent only—a concurrence dubitante is a full concurrence, albeit one with reservations. See Carter v. State, 196 Ga. App. 226, 229-30 (395 SE2d 891) (1990) (Deen, J., concurring dubitante).

The majority cites Davis v. Bruno’s Supermarkets, 263 Ga. App. 147 (587 SE2d 279) (2003), and Shepard v. Winn Dixie Stores, 241 Ga. App. 746 (527 SE2d 36) (2000), as authority for this principle. Davis itself cites Shepard, and Shepard cites Straughter.

I do not intend in this opinion to set forth an exhaustive listing of the factors that might properly be considered when we decide whether to revisit a prior decision. In some other case, a consideration of other factors might also be appropriate.