Mitchell v. Food Giant, Inc. , 176 Ga. App. 705 ( 1985 )

Carley, Judge,

dissenting.

I respectfully dissent from the majority’s holding that the trial court correctly withdrew from the jury the issues raised by the pleadings and evidence in this case. In my opinion, the majority fails to properly adjust the rule as to the sufficiency of the evidence in this type of slip and fall case as it applies to the determination of the existence or nonexistence of factual issues to be resolved by a jury. In its lengthy attempt to distinguish the cases relied upon by the appellant, the majority concludes that “[t]he rule actually is that a defendant’s constructive knowledge of a foreign substance may be shown where the defendant had an ‘opportunity to discover the [defect].’ [Cit.]” (Majority opinion, page 708.) With this conclusion as to the rule for the ultimate determination of liability, I agree. However, what the majority fails to recognize is that, in this case, the plaintiff-appellant showed all that was necessary in order to authorize the jury to determine the ultimate question of liability. “The evidence of record showed that [employees] of the defendant [were] in the vicinity where the alleged dangerous condition existed. It was, of course, for the jury to determine, whether [they were] in the immediate vicinity and whether [they] could have easily seen the [radish] on the floor or not.” (Emphasis supplied.) Piggly Wiggly Southern, Inc. v. Conley, 139 Ga. App. 532 (229 SE2d 25) (1976).

I respectfully take issue with the majority’s initial description of the site of the injury. On page 705 of the majority opinion it is stated that “it seems obvious” that the area of the slip and fall “was separated from the line of sight of the store employees by an aisle divider.” (Emphasis supplied. Majority opinion, page 705.) There is absolutely no support for the majority’s conclusion as a matter of law that the store employees’ line of sight was blocked by the aisle divider. The only testimony describing the scene was the plaintiff’s and she stated that the employees were on the other side of the aisle and the distance between said employees and the situs of the injury was approximately the same as that between plaintiff’s attorney and the plaintiff on the witness stand. Any conclusion as to whether this evidence established that the store employees did or did not have an opportunity to discover the defect should have been drawn by the jury, and not by the court.

The facts of the instant case are almost identical to those involved in Fletcher v. Family Center, 169 Ga. App. 376 (312 SE2d 856) (1983) wherein this court reversed the grant of summary judgment in favor of the defendant. See also Lend Lease Transp. Co. v. McBride, 169 Ga. App. 902 (315 SE2d 449) (1984); Caree v. Revco Discount Drug Centers, 175 Ga. App. 487 (333 SE2d 387) (1985). It is my opinion that the trial court erred in directing a verdict in favor of appellee and that, therefore, the judgment of the trial court should be reversed.

Decided September 30, 1985 Rehearing denied November 5, 1985. Jack 0. Morse, for appellant. Franklin N. Biggins, for appellee.

I am authorized to state that Chief Judge Banke and Judge Ben-ham join in this dissent.