J. H. Harvey Co. v. Reddick

ANDREWS, Presiding Judge,

dissenting.

J. H. Harvey Company (Harvey) was entitled to summary judgment because there is an absence of evidence to support Reddick’s claim that Harvey had actual or constructive knowledge of the hazard.

In order for Reddick to prevail on her claim against Harvey, she was required to prove that Harvey had actual or constructive knowledge of the hazard which she claims caused her slip and fall. Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997); Alterman Foods v. Ligón, 246 Ga. 620, 622-623 (272 SE2d 327) (1980). Since there was no evidence that Harvey had actual knowledge of the hazard prior to the slip and fall, the issue is whether Harvey had constructive knowledge. There being no evidence that any Harvey employee was in the immediate area of the hazard and could have easily seen and removed it prior to the fall, this method of proving constructive knowledge was not available to Reddick. Moreover, there was no evidence as to how long the hazard at issue had been on *476the floor before Reddick apparently slipped on it and fell, or how it got there. As set forth in the majority opinion, the critical issue on these facts is whether Harvey had constructive knowledge of the hazard because it had remained on the floor for such a length of time that the hazard should have been discovered and removed by Harvey in the exercise of ordinarily diligent inspection and cleaning procedures. Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (493 SE2d 196) (1997).

On these facts it is a matter of pure speculation as to whether the hazard may have been placed on the floor a minute or two before Reddick slipped on it, or whether it may have been placed on the floor shortly after Harvey inspected and swept the area some one hour and forty-two minutes prior to Reddick’s slip and fall. Clearly, if the hazard was placed on the floor only a minute or two before Reddick’s slip and fall, no reasonable trier of fact could conclude that the hazard should have been discovered and removed by Harvey in the exercise of ordinarily diligent inspection procedures. On the other hand, even if Harvey had no actual knowledge of the hazard on the floor, if the hazard had been on the floor since shortly after the last floor inspection for almost one hour and forty-two minutes prior to Red-dick’s slip and fall, a reasonable trier of fact could conclude that it had been there long enough so that a reasonable inspection procedure would have discovered it, and thus constructive knowledge of it should be imputed to Harvey. In other words, a reasonable trier of fact could conclude under the circumstances that ordinary diligence required Harvey to inspect the floor for hazards more often than every one hour and forty-two minutes, but no reasonable trier of fact could conclude that ordinary diligence required Harvey to inspect the floor every minute or two. As this Court has repeatedly held for decades:

To sustain plaintiff’s cause of action in the failure to inspect case it is necessary that she prove a period of time the dangerous condition has been allowed to exist. Without such proof, it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard. Banks v. Colonial Stores, 117 Ga. App. 581 (161 SE2d 366) (1968). Winn-Dixie Stores, Inc. v. Hardy, [138 Ga. App. 342, 345 (226 SE2d 142) (1976)].

(Punctuation omitted.) Kroger Co. v. Brooks, 231 Ga. App. 650, 654 (1) (b) (500 SE2d 391) (1998). Similarly, our Supreme Court has held:

[Although] the proprietor may be liable if he fails to exercise reasonable care in inspecting and keeping the premises in *477safe condition!,] [t]o sustain a cause of action in [this] type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case[,] the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition and the store’s location.

(Citations and punctuation omitted.) Alterman Foods, 246 Ga. at 622-623.

It follows that, if there is no evidence as to how long the hazard had been on the floor before Reddick slipped and fell on it, neither a judge nor a jury as the trier of fact could conclude, without speculating, that the hazard had been there long enough so that it should have been discovered by Harvey had reasonable inspections been performed. It also follows that, if the hazard had not been on the floor long enough to have been discovered by a reasonable inspection, then any failure by Harvey to conduct a reasonable inspection was not the cause of Reddick’s slip and fall. Rather, if the hazard had been on the floor, for example, only a minute or two before Reddick slipped and fell on it, the sole cause of the slip and fall was the negligence of the unknown party who placed the hazard on the floor. In the absence of any evidence as to how long the hazard had been on the floor before Reddick slipped and fell, the trier of fact would be left to speculate as to how long it had been there and whose negligence caused the slip and fall.

A verdict finding that a defendant’s negligence caused the plaintiff’s injury cannot be sustained on the basis of speculation or conjecture.

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

(Citations and punctuation omitted.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (456 SE2d 93) (1995). Thus, a *478determination as to how long the hazard was on the floor prior to the slip and fall is essential to Reddick’s claim that Harvey had constructive knowledge of the hazard because it had been on the floor long enough to have been discovered by a reasonable inspection. Alterman Foods, 246 Ga. at 623; Colonial Stores, 117 Ga. App. at 581; Brooks, 231 Ga. App. at 654. Since the trier of fact in the present case cannot be allowed to speculate as to whether the hazard had been on the floor for as little as a minute or for as much as one hour and forty-two minutes, Harvey would be entitled to a directed verdict at any trial where Reddick sought to prove that Harvey’s negligent failure to conduct reasonable inspections caused her slip and fall. Nelson, 216 Ga. App. at 757.

One would logically assume that any case whose evidentiary posture would entitle the defendant to a directed verdict at trial would also entitle the defendant to pre-trial summary judgment so as to avoid the expense of an unwinnable trial. This was the clear message sent by our Supreme Court when in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), it adopted what had long been the summary judgment rule in federal courts:

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleádings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Id. Although Harvey had the burden on its motion for summary judgment of showing that there is no material issue of fact, Harvey’s defense that it lacked constructive knowledge of the hazard is not an affirmative defense, and the evidentiary burden at trial on this issue rests with Reddick. Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 685 (498 SE2d 748) (1998); Robinson, 268 Ga. at 748-749. Since Harvey has no burden to produce evidence at trial in support of its lack of constructive knowledge defense, under Lau’s Corp., Harvey has no burden on summary judgment to affirmatively produce evidence to disprove Reddick’s claim that it had constructive knowledge of the hazard; rather it can point to the absence of evidence to support a triable issue on constructive knowledge. Id.

Nevertheless, the majority opinion, and the recent decision of this Court upon which it relies, requires Harvey to do precisely what *479Lau’s Corp. says it is not required to do. Citing this Court’s opinion in Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (500 SE2d 353) (1998), the majority opinion holds that, when a slip and fall defendant moves for summary judgment asserting lack of constructive knowledge of the hazard, it cannot discharge its burden by pointing to the absence of evidence as to how long the hazard had been on the floor until it first affirmatively produces evidence to disprove the plaintiff’s case by showing that it had in place and followed reasonable inspection procedures at the time of the slip and fall. See Division 1 (b) of the majority. The line of cases relied upon in Straughter to support this holding traces its authority back to two 1988 decisions, Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988) and Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988). Cooke and Ramey held that, because the defendant proprietor failed to produce evidence that it conducted a reasonable inspection of the premises, it failed to carry its initial evidentiary burden as the movant for summary judgment to show that the plaintiff’s claim that the defendant had constructive knowledge of the hazard was not viable, and thus the burden did not shift to the plaintiff to produce evidence of how long the hazard had been on the floor. Ramey, 186 Ga. App. at 258-259; Cooke, 186 Ga. App. at 254-256. Both Cooke and Ramey concluded that the defendant was not entitled to summary judgment because the “[defendant’s] evidence did not negate the possibility that, under the existing circumstances, its failure to have discovered the presence of the [hazard on the floor] was the result of its failure to exercise reasonable care in inspecting its premises. See [Ramey].” Cooke, 186 Ga. App. at 256.

The 1991 Supreme Court decision in Lau’s Corp., which specifically overruled anything to the contrary, held that a defendant moving for summary judgment, which does not have the burden of proof at trial, has no burden to produce evidence in order to disprove the plaintiff’s case or to shift the evidentiary burden back to the plaintiff. Id. at 491. Accordingly, Lau’s Corp. specifically overruled the contrary holdings in Cooke and Ramey upon which Straughter and the majority opinion rely. See Straughter, 232 Ga. App. at 36-40 (Andrews, C. J., dissenting); Hartley v. Macon Bacon Tune, 234 Ga. App. 815, 822-824 (507 SE2d 259) (1998) (Andrews, C. J., dissenting); Blake v. Kroger Co., 224 Ga. App. 140, 147-151 (480 SE2d 199) (1996) (Andrews, J., concurring specially). As I pointed out in my dissent in Straughter, the holding there and the holding by the present majority fly in the face of the Supreme Court’s decision in Lau’s Corp. Moreover, these holdings are directly contrary to numerous other slip and fall decisions of this Court which hold in accord with Lau’s Corp., that a slip and fall defendant moving for summary judgment and asserting lack of constructive knowledge of the hazard is not *480required to produce evidence of compliance with reasonable inspection procedures before it can rely on the absence of evidence as to how long the hazard had been on the floor. Sharfuddin, 230 Ga. App. at 686; Blake, 224 Ga. App. at 142-150; Johnson v. Autozone, 219 Ga. App. 390, 393 (465 SE2d 463) (1995); Moore v. Kroger Co., 221 Ga. App. 520, 521 (471 SE2d 916) (1996); Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 351 (496 SE2d 471) (1998).

Without evidence as to whether the hazard had been on the floor for as little as a minute or for as long as one hour and forty-two minutes, there is no basis for a reasonable trier of fact to conclude, without engaging in pure speculation or conjecture, that it had been there long enough to have been discovered by a reasonable inspection. Harvey would therefore be entitled to a directed verdict at trial, because it would be impossible for a trier of fact to conclude that a negligent failure by Harvey to conduct a reasonable inspection caused Red-dick’s slip and fall. Alterman Foods, 246 Ga. at 623; Brooks, 231 Ga. App. at 654; Nelson, 216 Ga. App. at 757. Where the evidence before the trial court on summary judgment would not be sufficient to withstand a motion by Harvey for a directed verdict at trial, the clear message of Lau’s Corp. is that Harvey is entitled to rely on the absence of such evidence and is entitled to summary judgment. Id. at 491; see also Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991) (summary judgment appropriate on evidence that would compel a directed verdict); Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148) (1981) (same); NeSmith v. Ellerbee, 203 Ga. App. 65, 68-69 (416 SE2d 364) (1992) (when directed verdict at trial is inevitable, summary judgment is appropriate).

In continuing to dissent to the decisions of this Court on the above issue, I am aware that the principle of stare decisis ordinarily compels a judge of this Court to follow the decisions issued by this Court. Since it is my opinion, however, that the decisions to which I continue to dissent clearly conflict with the Supreme Court’s decision in Lau’s Corp., 261 Ga. at 491,1 do not believe stare decisis compels me to concur. “The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” Art. VI, Sec. V, Par. III, Ga. Const. of 1983. Accordingly, I continue to dissent on this issue as long as I find clear support for my position in Supreme Court precedent. Moreover, I point out that the majority opinion, and the opinion in Straughter upon which it relies, fails to acknowledge a contrary line of decisions relying on Lau’s Corp. issued by this Court which takes the exact opposite position. As I have urged in previous dissents, this Court should forthrightly address the conflict in these decisions.

For these reasons, I respectfully dissent.

*481Decided September 27, 1999 Reconsideration dismissed October 21, 1999 Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellant. Law Offices of Rodney M. Keys, Maurice L. King, Jr., for appellee.