Bishop v. KFC NAT. MANAGEMENT CO., INC. , 222 Ga. App. 1 ( 1996 )

Birdsong, Presiding Judge.

Billy J. Bishop filed suit against KFC National Management Company d/b/a Kentucky Fried Chicken for injuries received when he sat down on a booth bench in appellee’s restaurant. Holding his tray of food, he put his hand on the edge of the bench in order to sit down, and the bench collapsed. He fell, sitting down hard on the corner of the bench directly on his tailbone, allegedly injuring himself to the extent that he missed nine months of work.

The trial court granted summary judgment to KFC, evidently on the argued grounds that the bench was held to its supporting frame by wood screws as was proper according to industry standards, and that KFC’s employees had inspected the booth prior to Bishop’s injury and found no defect. KFC contends it is the nature of wood screws that they may deteriorate and break without fault or negligence on anyone’s part. KFC also contends the evidence is undisputed that the bench was secured by wood screws.

Appellant Bishop contends there is evidence from which it may reasonably be inferred that at the time of his injury the screws holding this bench to its frame were not wood but were sheetrock screws which are not structurally appropriate for attachment of this kind of bench. He contends KFC therefore negligently constructed this bench and, moreover, failed to reasonably inspect it for defects. Held:

On motion for summary judgment, regardless which party would have the burden of proof at trial, the burden is on the movant to show there is no genuine issue of material fact. All evidence is construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubt and all favorable inferences that can be drawn from the evidence. Piggly Wiggly Southern v. Bennett, 217 Ga. App. 496, 497 (458 SE2d 138).

Appellant’s injury occurred on June 22, 1993. A restaurant contractor examined photographs of the seating in the restaurant and concluded in an affidavit dated April 1995 that the plastic benches in the restaurant were designed to be held in place by being bolted to supporting metal frames; that when properly attached, the benches are free standing units capable of bearing loads without being attached to any wall; and that “since the bench rotated forward with Mr. Bishop, it is clear at that time the bench was not attached securely to its supporting metal frame. These attachment points would not be subject to deterioration or rot [and] the attachment of the bench to the metal frame would be permanent, and not subject to failure or coming loose from normal usage. . . . [A]ny loosening would occur gradually over a considerable time before failure would occur. This situation would also be apparent to the restaurant’s employees simply by jiggling the benches with their hands. In my opinion, therefore, the cause of the failure of the bench . . . was the faulty construction of the bench in failing to attach it properly ... or the failure to occasionally check for loose attaching bolts.”

In June 1995, this contractor offered a second affidavit in support of Bishop’s response to KFC’s motion for summary judgment. He stated that before preparing his first affidavit, he examined the benches without crawling under them, and that on June 30, 1995, he returned to the restaurant and crawled under the benches to inspect them in detail. He concluded that the bench Bishop sat on was an “end” bench which does not back up to any other bench; that the benches are thin fiberglass forms supported by a metal frame assembly; that on the end benches, the seat has only two attachment points, which are a board molded along the bottom of the seat and secured by two lag bolts; and that two screws penetrate the back of the seat and are screwed into wooden blocks. The contractor inspected each of the end benches in the section where Bishop fell. On the bench which collapsed under Bishop, the screws used in the seats are heavy wood screws, which are appropriate for this purpose because they can be bent or flexed without breaking. However, the expert discovered that the other three end benches in the area were attached with sheetrock screws, and “sheetrock screws are not appropriate for this use because they are . . . hard and brittle. . . . They . . . are designed for use only . . . where flexion in normal use is not anticipated. . . . On two of the [other three end benches in the area] both sheetrock screws were broken. These two benches would easily tilt forward if pressure was applied to [the front edge of the seat]. The third bench had one sheetrock screw broken. These hazards were readily observable just by jiggling the back of the bench with my hands. In fact, it was easy to pull the backs forward and see the broken screws. . . . Since the bench rotated forward with Mr. Bishop, it is clear that the back of the bench was not securely attached. . . . Since Billy Bishop’s bench has a different screw . . . than the other benches, I conclude that before it was repaired it also was held with sheetrock screws. I think it is probable, therefore, that the reason his bench tilted forward was that sheetrock screws had been improperly used to secure the back of his bench. ... In my opinion, therefore, the cause of the failure of the bench . . . was (1) the faulty construction of the bench in improperly using tempered sheetrock screws . . . and (2) the failure of the restaurant personnel to occasionally check to see if the benches were secure.” (Emphasis supplied.)

From all the evidence, including circumstantial evidence, judged in favor of respondent Bishop, a reasonable trier of fact may conclude that defendant’s employees failed to exercise reasonable care in inspecting and keeping the premises in safe condition and should have known of the existence of defects. Flood v. Camp Oil Co., 201 Ga. App. 451, 453 (411 SE2d 348). Furthermore, from all the evidence including circumstantial evidence, the jury may also reasonably infer that all four of the end benches in that area had originally been negligently attached with the same type screw (a sheetrock screw) and that the only reason the bench which collapsed is now attached by wood screws is that this bench was repaired after it collapsed. This is not mere “speculation”; it is a reasonable inference from the circumstantial evidence that apparently all four benches were built at the same time and in the same manner. That is, by reasonable inference from all the evidence, a jury may conclude the bench where Bishop sat had been improperly attached by sheetrock screws like the other benches in the same area and is now secured by wood screws only because it had been repaired after it collapsed under Bishop. The fact that there may be reasonable inferences drawn from preponderant circumstantial evidence does not make such inferences any less reasonable.

KFC contends, however, that such an inference is impossible because after Bishop fell he looked under the bench and saw it was attached by wood screws, so that the evidence demands a finding that the bench was held by wood screws at the time it collapsed. This is a misconstruction of Bishop’s testimony. Bishop’s actual testimony was that the screws he saw under the bench after he fell might be wood screws, but that he saw them only briefly because he gave them only a glance, as he soon became nauseated and felt like he was on fire and had to leave the restaurant. The fact that Bishop testified the screws “looked like” wood screws does not, as the dissent evidently believes, mean that they were wood screws.

Under Georgia law, a proprietor is liable to invitees for injuries caused by his failure to use ordinary care in keeping the premises safe. OCGA § 51-3-1. A business invitee may reasonably assume that, absent an obvious hazard, the furnishings on business premises are safe for the use for which they were intended, and ordinary care requires a proprietor who has the opportunity to discover the condition of his furnishings to ascertain that they are safe for use under the conditions contemplated. Spencer v. Little Brownie Properties, 203 Ga. App. 324, 325 (416 SE2d 851). The jury may find, by the preponderance of the evidence and by reasonable inferences drawn from all the evidence, including circumstantial evidence, construed in Bishop’s favor, that KFC negligently constructed this bench by attaching it with sheetrock screws, as it did with the other end benches in the same area, and that KFC’s employees failed to inspect properly the benches. See id. The trial court therefore erred in granting summary judgment to defendant KFC.

Judgment reversed.

McMurray, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ, concur. Beasley, C. J., and Andrews, J., dissent.