Ware County v. Medlock , 192 Ga. App. 542 ( 1989 )

Deen, Presiding Judge.

This is an interlocutory appeal of the denial of the defendant Ware County’s motion for summary judgment.

The appellee Medlock claimed injuries as a result of falling into a hole when the grass caved in beneath him on the Ware County Courthouse lawn. He had stepped on the lawn, just off the sidewalk, to examine a moonshine still which had been put on display near the jailhouse. He contended that because the grass in that area was brownish or dying, and the nearby sidewalk was cracked above where it was later found the hole extended, the county had a duty to inspect the grounds and protect him as an invitee, and that its failure to do so rendered it liable.

In denying appellant’s motion for summary judgment the trial judge set forth in his order that appellee “contends that defendant had constructive knowledge of the existence of an underground hollow since grass in the area was turning brown. Defendant, in support of its motion for summary judgment, argues that patches of brown grass could result from heat, drought, disease, or insect damage, and alone could not constitute constructive knowledge of an underground hollow or any other defect. It appearing to the Court from a review of the record, briefs, and oral arguments that there is a genuine issue as to one or more material facts and that defendants are not entitled to judgment as a matter of law, defendant’s motion for summary judgment is hereby denied.”

Where actionable constructive knowledge on the part of the defendant is asserted against the defendant and the case is considered on summary judgment, the latter would have the burden of proof by offering affirmative evidence to negate the existence of any knowledge of a defect or danger. Yet, this court’s decisions in Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986), and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987) “hold that an allegation of constructive knowledge may be summarily rejected in a slip-and-fall case based upon the mere absence from the record of evidence tending to support the inadequate inspection theory of liability, rather than upon the presence of evidence tending to negate it.” Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 343 (373 SE2d 252) (1988). Also see Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523) (1988), and cases cited therein. The majority opinion in Shiver sought and purported to overrule the two cases of Bright v. Food Giant, supra, and Newman v. Ruby Tuesday, Inc., supra, and further stated, “They are hereby overruled.” But, the whole court vote in Shiver was actually 4-1-4. The one vote, a special concurrence, indicated that “these two cases should not be overruled.” Only four judges voted to overrule the two cases. After further consideration and study, we conclude that the majority position in Shiver was correct and that Bright and Newman must be overruled.

As stated in Shiver at 748-749, “the plaintiff, as respondent on motion for summary judgment, cannot properly be called upon to offer proof of actionable constructive knowledge on the part of the defendant until the defendant, as movant, has come forward with evidence tending to negate the existence of such knowledge.” In the instant case, two of appellant’s employees specifically stated that they had not inspected the area for safety purposes. This evidence did not eliminate all issues of fact with regard to constructive knowledge of the hazard, and the trial court properly denied appellant’s motion for summary judgment.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Birdsong, Sognier and Beasley, JJ., dissent.