Sullenberger v. Grand Union Co. ( 1991 )

Sognier, Chief Judge.

Douglas Sullenberger brought suit against Grand Union Company d/b/a The Big Star Grocery and Selig Enterprises, Inc. seeking damages for injuries he incurred when he slipped and fell in a parking lot owned by Selig Enterprises and leased by Grand Union for customers at its Big Star grocery store. The trial court granted Grand Union’s motion for summary judgment, and Sullenberger appeals.

Appellant’s fall occurred at approximately 8:00 p.m. on November 9, 1987. Appellant stated in his deposition that after purchasing a cart full of groceries at appellee’s store, he left and pushed the cart himself up an incline in the parking lot to his car. Appellee does not provide employees to carry groceries for customers. Appellant testified he positioned his cart so that its front was heading downhill, backed it to the rear of his car, and braked the cart by placing one foot behind a wheel. After all but the final bag of groceries had been loaded in his car, appellant moved his foot from behind the wheel in order to position the last bag further into his car. He then turned to see the cart he had released rolling down the drive lane of the parking lot toward a trafficked lane in front of the grocery store.

Appellant, who is an attorney, stated that he dashed after the cart “thinking proximate cause,” but because the slope of the driveway or the cart’s wheels were causing it to angle to the left, appellant did not chase directly after it. Instead, he decided that he was “going to chance” trying to “head it off” by deliberately cutting across an area of the lot he was aware had been designed for and contained parked cars. Appellant admitted that he could not recall what he was watching as he ran and that he did not know what he was looking at, other than the fleeing grocery cart, as he cut past a parked car. A parking bumper or curb, which appellee’s expert testified was “required by the City,” was positioned between a handicapped parking space and a cart return area. Appellant stated, “I don’t know for a fact that I tripped on the curb. I know that the curb was right behind me and that was the path I took, but I don’t know for a fact because I wasn’t watching my feet every second that I was running.” After his fall he saw a dark puddle of liquid which he could not identify but stated that “as opposed to a slip or a trip, it seems to me it had to have been a trip because I fell so far forward from where I was.” The inadequacy of the lighting in the parking lot was one of the instances of negligence alleged in appellant’s complaint. Appellee’s expert testified that a standard light with four four-hundred-watt high intensity lights was installed directly in front of the store where the fall occurred. When appellant was questioned about the lighting, he responded, “Was lighting a factor? I don’t know. I don’t know if it would have made a difference if there had been more light there or not. I can’t say.”

Appellant contends the trial court erred by granting appellee’s motion for summary judgment. “The utilization of dividers [or concrete bumpers] in parking lots does not in itself constitute negligence. [Cits.]” Townsend v. Central Parking, 118 Ga. App. 538, 539 (164 SE2d 287) (1968). See McHugh v. Trust Co. of Ga., 102 Ga. App. 412 (116 SE2d 512) (1960). Appellant argues these cases are distinguishable here because they did not involve a situation where the plaintiff’s attention was distracted by vehicular traffic and by a sudden emergency caused by a runaway cart. However, the evidence here establishes that it was the result of appellant’s own negligence in releasing his control over a cart he had positioned to head downhill on a slope that appellant had to run across the parking lot after his cart to prevent it from harming anyone. Thus, any “distraction” posed by the fleeing cart “was self-induced by a possible emergency situation which was entirely of [appellant’s] own creation. ‘ “One valid line of distinction existing in the so-called ‘distraction’ cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.’” [Cit.]” Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 240 (396 SE2d 42) (1990).

The record also establishes that although appellant deliberately chose to risk cutting across an area marked for and occupied by parked cars, see Townsend, supra, he admittedly ran without watching where he was going. Appellant’s own testimony thus establishes that he would not have seen the parking curb. “ ‘It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way. (Cits.)’ [Cit.]” Gray, supra at 240-241. Finally, appellant’s own testimony reveals that he did not know that the parking curb caused his fall, see Batts v. Bozeman & Son, 196 Ga. App. 614, 615-616 (396 SE2d 505) (1990), nor did he adduce any evidence that different lighting would have prevented 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. OCGA § 9-11-56 (c). 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 jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] 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.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Applying this standard to the facts in the case sub judice, appellee was entitled to summary judgment as a matter of law, and the trial court did not err by so ruling.

Judgment affirmed.

Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur. Carley, P. J., concurs in the judgment only. McMurray, P. J., dissents.