Bruno’s Food Stores, Inc. v. Taylor

Birdsong, Presiding Judge,

concurring specially.

Although I agree the trial court properly denied FoodMax’s motion for summary judgment, I write separately because I cannot agree with the analysis the majority used in reaching that result. In my view, the majority misconstrues and misapplies our law concerning summary judgment, inferences, active negligence, and distractions.

1. Because Taylor slipped on water intentionally placed on the floor by FoodMax’s cleaning company, consideration of the Alterman Foods foreign substance analysis is unwarranted (see Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327)), and FoodMax’s arguments to the contrary are without merit. Consequently, to establish her cause of action Taylor only was required to show an act or omission by FoodMax that was the proximate cause of her injury and which she could not have avoided through the exercise of ordinary care. Id. at 624. Under the evidence in this case, Taylor successfully carried that burden. Thus, I concur that the trial court did not err by denying summary judgment to FoodMax.

2. I am concerned that the majority’s expansive and, I believe erroneous, opinion could, if unchallenged, result in a framework for *449consideration of slip and fall cases on summary judgment so that regardless of the evidence summary judgment could never be granted. Neither attorneys, judges, nor citizens of this State, however, would be well served by that result. Moreover, I am concerned also that this result would be achieved through altering existing law, seemingly by relying on existing precedent, while, in fact, misconstruing or misapplying it.

Also, I believe the time has come for this Court to stop tacitly endorsing, through judicial silence, any published opinion suggesting that summary judgment is some scheme created to strip deserving plaintiffs of their right to jury trials. These statutory procedures have been a part of Georgia law for three decades and are an integral part of our Civil Practice Act. Further, these procedures, when applied with an even hand, serve both the interests of justice and judicial economy well. Of course, granting summary judgment is a serious matter that should not be undertaken lightly. I know of no one who believes that it should be. It is also a serious matter to deny summary judgment when the law and the facts demand otherwise. In this connection, it is important to remember that “[t]he right to a jury trial as guaranteed by the Seventh Amendment to the United States Constitution is not infringed where, as here, the jury would have no role since there are no issues of material fact in dispute. See Barrett v. Independent Order of Foresters, 625 F2d 73 (5th Cir. 1980).” Bledsoe v. Central Ga. Production Credit Assn., 180 Ga. App. 598, 599 (4) (349 SE2d 821). Accord CM3, Inc. v. Assoc. Realty Investors/Prado, 201 Ga. App. 428, 429 (411 SE2d 320).

Thus, it is unlikely that the cases in which summary judgment is properly granted would actually be decided by the jury because the grant of summary judgment shows that on the available evidence a directed verdict should be granted. If this is the expected result, I see little utility and great waste in such a procedure. Consider the numerous cases under our former summary judgment procedures in which appellate courts recognized that even though summary judgment was not authorized because the movant had not disproved the nonmoving party’s case, when the burden of proof shifted, it was likely that the nonmoving party could not prove its case. See, e.g., Winn-Dixie &c. v. Ramey, 186 Ga. App. 257 (366 SE2d 785). It is hard to comprehend what would be gained by a return to such procedures. Surely there would be no benefit to the litigants who must fund the litigation, or to the taxpayers who must pay ultimately for such cases to clog already full trial dockets.

Thus, it is recognized that the purpose of summary judgment is to eliminate “jury trials where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c).” Porter v. Felker, 261 Ga. 421 (405 *450SE2d 31). Of course, Porter v. Felker merely restated what our Supreme Court stated 20 years earlier in Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 603 (203 SE2d 173): “The purpose of the Summary Judgment Act is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. In Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (138 SE2d 580), [it was] stated: We believe the Act was clearly intended to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial, even though the petition fairly bristles with serious allegations, if when given notice and opportunity to produce affidavits by persons competent to testify on their own knowledge to the truth of such allegations the pleader does nothing to contradict the affidavits of the movant which show there is no right of the opposite party to prevail. And, it was noted on p. 304 of the opinion that, [i]n this case the petitioner had his choice of producing counter-proof and thus make an issue of fact, or do nothing, that is, create no issue of fact and suffer judgment.” (Citation and punctuation omitted.)

3. The majority’s conclusion that movants for summary judgment are never allowed the benefit of inferences is contrary to our law and does not take into consideration the posture of the case when trial courts consider motions for summary judgment. In these proceedings the rules on admissibility of evidence apply. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576). “Evidence offered on motion for summary judgment is held to the same standards of admissibility at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Punctuation omitted.) Hall v. Cracker Barrel &c., 223 Ga. App. 88, 92 (476 SE2d 789). Further, “[a] motion for summary judgment is analogous to a motion for a directed verdict. OCGA § 9-11-50. The function of the trial court in ruling on either requires the trial court to determine whether the movant is entitled to a judgment as a matter of law on the facts established and whether there is a genuine issue as to any material fact. OCGA §§ 9-11-56; 9-11-50; Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574, 575 (136 SE2d 505) (1964). If the movant can show the court that any essential element, under any theory of recovery, is missing and incapable of proof, the movant is entitled to summary judgment as a matter of law, notwithstanding any issue of material fact regarding any other essential element. Waldrep v. Goodwin, 230 Ga. 1, 2 (195 SE2d 432) (1973). When a motion for summary judgment is made and properly supported, the opposing party must respond and set forth specific facts showing a genuine issue for trial or else summary judgment, if appropriate, *451shall be entered. OCGA § 9-11-56 (e); Meade v. Heimanson, 239 Ga. 177, 178 (236 SE2d 357) (1977). Summary judgment was designed to enable the trial judge to filter out sham issues which may cause needless and time-consuming litigation. ‘The trial judge must separate what is formal or pretended in denial or averment from what is genuine or substantial, so that only the latter may subject a party to the burden of a trial.’ Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962).” Porter v. Felker, supra at 421-422.

“When viewed in proper perspective under present practice in Georgia, summary judgment under our law is just what the name implies. It is an abbreviated trial, but of no less importance than any other trial on the merits of the case. One must prepare for a summary judgment hearing with the same thoroughness and expectation of finality one must contemplate for any trial.” Summer-Minter v. Giordano, supra at 606. Consequently, “ ‘[s]ummary judgment may be granted on evidence that would compel the direction of a verdict; and should be denied when a directed verdict would be improper.’ 6 Moore’s Federal Practice, Para. 56.15[4], p. 56-522.” Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148). Of course, when a trial court considers whether a directed verdict should be granted, it is authorized to consider whether the deductions, i.e., inferences, demand a particular verdict. See OCGA § 9-11-50 (a).

The correct rule regarding inferences is that “[t]he party moving for summary judgment has the burden of showing the absence of a genuine issue of any material fact and if the trial court is presented with a choice of inferences to be drawn from the facts all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion. United States v. Diebold, 369 U. S. 654, 655 (82 SC 993, 8 LE2d 176) (1962).” Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 860 (229 SE2d 765). Moreover, a nonmovant is only entitled to have reasonable inferences drawn in his favor. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474).

4. Additionally, although the majority cites and quotes from Lau’s Corp. v. Haskins, supra, the majority nevertheless apparently refuses to accept Lau’s Corp.’s holding that “[a] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case.” Id. at 491. “The burden on summary judgment is on the movant to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. OCGA § 9-11-56 (e); Meade v. Heimanson, [supra].” (Emphasis supplied.) Riley v. H & H Operations, 263 Ga. 652, 655 (3) (436 SE2d 659).

Although, of course, the movant could carry this burden, as the majority states, by presenting evidence to negate an essential ele*452ment of the nonmovant’s case, the movant has no burden to do so (Lau’s Corp. v. Haskins, supra at 495), and it is not useful for this Court to attempt to revise or redefine the burden stated in Lau’s Corp. so that a different burden appears to be placed on movants for summary judgment from the one stated in Lau’s Corp. at 495.

This means that defendants/movants need not prove affirmatively that plaintiffs failed to exercise ordinary care for their own safety when the records show that plaintiffs testified they were not watching where they were going, but if they had they could have seen the foreign substance on the floor. If that evidence remains undisputed, the trial court is entitled reasonably to infer that the plaintiff would have avoided the danger. “In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent to those proved.” OCGA § 24-4-9. Even though this Code section refers to “the jury,” because the court in ruling upon a motion for summary judgment exercises the same function as if it were ruling upon a motion for directed verdict, the court is authorized to make the same inferences the jury would be permitted to reach. “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a).

If plaintiffs wish to contend they could not have appreciated the danger even if they had seen it, or could not have avoided the danger, it is the plaintiffs’ burden to point “to specific evidence giving rise to a triable issue” (Lau’s Corp., supra at 491) on these points in their responses to the motions for summary judgment. Neither trial courts nor this Court, however, is allowed to “infer” that some unknown reason may exist why the plaintiff was unable to either appreciate the danger or was unable to avoid the danger if seen. Such conclusions are not inferences, but gross speculations. See generally Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (inference cannot be based on mere conjecture or possibility).

Consequently, the majority’s “negative inference” theory is contrary to Alterman Foods and Lau’s Corp., and in these circumstances is without the support of legal authority. Attempting to limit the trial court’s authority to draw reasonable inferences of fact in summary judgment cases by labeling a particular judicial determination as a negative inference also runs contrary to the statutory object of the rules of evidence. See generally OCGA § 24-1-2.

5. Also, the majority’s statement that the plaintiff in this case is excused from watching where she was going because she was distracted by looking at plants on display is contrary to our law. See Harper v. Kroger, 212 Ga. App. 570, 571 (443 SE2d 7).

*453Decided September 9, 1997. Jones, Cork & Miller, Timothy Harden III, for appellant. Sims, Fleming & Spurlin, Robert D. Bryan, for appellee.

6. Moreover, the majority’s active negligence theories and its effort to merge active negligence concepts in slip and fall cases are contrary to Supreme Court precedent and were rejected by this Court in Adams v. Sears, Roebuck & Co., 227 Ga. App. 695 (490 SE2d 150) and Hartley v. Macon Bacon Tune, 227 Ga. App. 679 (490 SE2d 403).

Although I concur with affirming the trial court, the better practice would be to dismiss the appeal as having been granted improvidently.

I am authorized to state that Judge Ruffin joins in this special concurrence.