Hagan v. Goody's Family Clothing, Inc. , 227 Ga. App. 585 ( 1997 )

Andrews, Chief Judge.

Paul Hagan appeals from the grant of summary judgment to Goody’s Family Clothing Store (“Goody’s”) on its motion for summary judgment. Hagan claims there is an issue of fact as to whether Goody’s had actual knowledge of the wet area on the floor which caused his fall.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... 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.” (Citations and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Hagan testified he had been in the store only about a minute when he fell. Hagan did not recall seeing anything on the floor before he fell. After he fell, he glanced over and saw a wet spot on the floor, approximately 18 inches in diameter. Hagan testified there was nothing blocking his view of the substance and nothing in the aisle to prevent him from seeing it had he looked down. The reason he was not looking at the floor as he walked was because he was concentrating on finding the pants department. Hagan said there were no store employees in the area when he fell. Hagan stated that an employee came up to him after he fell and told him a child had thrown up on the floor. He said the manager came out after the fall and told someone to clean the floor. Hagan’s wife, who was walking beside him when he fell, went over to see what he had slipped on. She informed him it was vomit. Hagan submitted no other evidence in response to the motion for summary judgment.

In support of its motion for summary judgment Goody’s submitted the affidavit of Stacy Franklin, a sales clerk at the store who was working in the men’s department at the time of Hagan’s fall. Franklin stated in her affidavit that she walked back to the dressing rooms about a minute or two before Hagan’s fall. Just before she walked back to the dressing room, she was looking at the aisle where Hagan fell and did not see any foreign substance on the floor. She estimated that it was less than two minutes from the time she walked back to the dressing room until the time she heard of Hagan’s fall.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In other words, recovery is permitted only when the dangerous condition is known to the owner or occupant of the premises and not known to the person injured. Id. at 622.

Goody’s has submitted the affidavit of a clerk who stated that she looked at the aisle where Hagan fell less than two minutes before the fall and saw no foreign substance on the floor. Hagan claims this attempt to show lack of actual or constructive knowledge must fail because other employees told him a child had thrown up in the store. But, the only evidence submitted in support of this assertion is the hearsay evidence Hagan gives in his deposition.

“Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Citations and punctuation omitted.) Hall v. Cracker Barrel &c., 223 Ga. App. 88, 92 (476 SE2d 789) (1996). Hearsay is never admissible and has no probative value unless it comes within a recognized exception to the rule. Jeweler’s Financial Svcs. v. Chapes, Ltd., 181 Ga. App. 872, 873 (354 SE2d 200) (1987).

The dissent states that this evidence can be considered on motion for summary judgment because it is admissible under the res gestae exception to the hearsay rule. “OCGA § 24-3-33 states: The admissions by an agent or attorney in fact, during the existence, and in pursuance of his agency, shall be admissible against the principal. OCGA § 10-6-64 states: The agent shall be a competent witness either for or against his principal. His interest shall go to his credit. The declarations of the agent as to the business transacted by him shall not be admissible against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent is dead. The Code sections must be construed together, and the second effectively limits the scope of the first.” (Citations and punctuation omitted.) Brooks v. Kroger Co., 194 Ga. App. 215, 216 (390 SE2d 280) (1990).

In Johnston v. Grand Union Co., 189 Ga. App. 270 (375 SE2d 249) (1988), cert. denied, 189 Ga. App. 912, a case directly on point, the plaintiff claimed that a store employee came up to her immediately after she was injured by the store’s automatic doors and said there was something wrong with the door and she (the employee) had said that “ ‘if the door wasn’t fixed, someone was going to get hurt.’ ” Id. In affirming the trial court’s decision that this evidence was not part of the res gestae, we held that “[cjertainly the sayings of the unknown red-haired person were not part of the res gestae, since the alleged utterer is unknown, it cannot be shown that they qualify as being free from all suspicion of device or afterthought. OCGA § 24-3-3.” (Punctuation omitted.) Id. at 271. Moreover, “the putting forward of some unidentified, unspecific person as an ‘employee,’ who allegedly made certain remarks that would bind or incriminate the employer, and as to whom there is no showing the person can be brought forth at trial or even located, or in fact exists, is not enough to raise a genuine issue of material fact controverting the defendant’s positive testimony that there was no defect of which it had actual or constructive superior knowledge.” (Citations omitted.) Id. at 272. See also Taylor & Mathis, Inc. v. Doyle, 219 Ga. App. 445 (465 SE2d 484) (1995) (physical precedent only); Sarantis v. Kroger Co., 201 Ga. App. 552, 553 (411 SE2d 758) (1991); Hall v. Rome Auto. Co., 181 Ga. App. 621, 622 (353 SE2d 542) (1987); Collins v. S. H. Kress & Co., 114 Ga. App. 159, 160 (150 SE2d 373) (1966).

The cases cited by the dissent are distinguishable. For example, in Quiktrip Corp. v. Childs, 220 Ga. App. 463 (469 SE2d 763) (1996), the statement objected to was made by one of three employees on duty in the store at the time. Id. at 465. Therefore, it was not a statement made by some unknown person who could not be located, brought forward at trial, or possibly did not even exist. Further, since each case concerning the res gestae exception to the hearsay rule must be decided on its own facts and the admissibility of such testimony is left to the sound discretion of the trial judge, we cannot say that, in this instance, the trial court abused its discretion. Allen v. State, 174 Ga. App. 206, 207 (329 SE2d 586) (1985).

Therefore, the only competent evidence in. the record as to whether or not Goody’s had actual or constructive knowledge of the hazard is that of Franklin who states she saw no foreign substance on the floor less than two minutes before Hagan’s fall. Thus, Goody’s has pierced Hagan’s pleadings on an essential element of his claim.

Accordingly, viewing all the facts and reasonable inferences from those facts in a light most favorable to Hagan, we find the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp., supra at 495. The trial court did not err in granting Goody’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., Smith and Ruffin, JJ., concur. McMurray, P. J., Beasley and Eldridge, JJ., dissent.