author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A95A1152.
    NORFOLK SOUTHERN RAILWAY COMPANY v. JONES.
    (466 SE2d 260)
   McMurray, Presiding Judge.

Norfolk Southern Railway Company (“Norfolk Southern” or “the railroad”) appeals from a judgment entered on a jury’s verdict, awarding Andra Jones damages for work-related injuries he sustained at Norfolk Southern’s rail yard in Atlanta, Georgia. The jury’s verdict is based on a finding that Norfolk Southern violated the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq. In a special verdict form, the jury segregated damages for past lost wages, future lost wages, past pain and suffering and future pain and suffering. The jurors also specified that they could not reach a verdict as to Jones’ claim under the “Automatic Coupler” or Safety Appliances Act, 45 USC § 1 et seq. Other than challenging two evidentiary rulings and a jury instruction, Norfolk Southern contends the jury’s $1,575,000 verdict was the product of vengeance, rather than proof, inspired by “pejorative” remarks against the railroad during Jones’ closing argument. We affirm.

On February 23, 1991, Andra Jones was injured while working as a switchman for Norfolk Southern. The injury occurred while Jones was manually aligning a railcar’s “draw head” or “gooseneck” coupler, a 300 to 400 pound mechanism designed to automatically connect one railcar to another upon controlled impact. Although the coupler Jones was attending was intended to function without human intervention, the “draw head” skewed and would not properly engage. Jones attempted to correct the misalignment via manual manipulation, but failed because the coupler was not greased for easy adjustment. Jones was required to lift the massive coupler and push it into place. In the process, however, he injured his back. Jones reported the incident to his supervisor and submitted an accident report. This report later disappeared from Norfolk Southern’s records and railroad supervisors speculated that Jones had faked a work-related accident.

The day after his injury, Jones was diagnosed with lower back strain. Jones returned to work a few days later with no restrictions, but acute pain set him in bed for hours after each day of work. A follow-up examination resulted in the same diagnosis. But this changed a month later after Jones consulted with a doctor not associated with Norfolk Southern. This physician determined that Jones had a ruptured disk and that he suffered nerve damage in his legs. Jones was instructed not to work, and directed to submit to physical therapy. Jones subsequently underwent a percutaneous lumbar diskectomy, in which a large needle was inserted in his back to remove a portion of the ruptured disk. Jones thereafter continued with physical therapy and returned to work. But Jones suffered with so much pain in his legs and back that he returned to the doctor. Further tests revealed that Jones still had a herniated disk. More spinal surgery was performed and physical therapy continued. Jones continued to experience tingling in his leg and he was informed that he has arthritis. Nonetheless, Jones returned to work in February 1993, but his pain forced him into a three-month work hardening program from which he received a list of restrictions. Norfolk Southern then evaluated Jones and decided he could no longer work as a switchman. It was determined that Jones has permanent scaring around his spinal cord and that he suffers with a 20 percent permanent disability. He was 31 years of age at the time of his injury.

At trial, Jones claimed that Norfolk Southern violated the FELA and the “Automatic Coupler” or Safety Appliances Act by failing to routinely grease “gooseneck” couplers. Jones claimed that this maintenance policy exposed him to unnecessary dangers associated with having to lift and pull the heavy “gooseneck” coupler under hazardous conditions. Norfolk Southern asserted at trial that such lubrication was neither required nor prescribed under the FELA or the Safety Appliances Act. Railroad supervisors testified that they believed Jones faked the work-related accident so that he could recover for an off-the-job injury. They also believed that Jones exaggerated the magnitude of his injuries by falsely demonstrating that he could no longer align a railroad switching device during a return-to-work test. After the close of evidence, however, Norfolk Southern’s attorney admitted during closing argument that the railroad had failed to present evidence (as promised during opening statements) that Jones faked an on-the-job injury. Norfolk Southern’s attorney also did not argue that Jones had faked a return-to-work test. He asserted that the only remaining issues were whether Jones caused his own injuries by negligently manipulating the “gooseneck” coupler and “whether [the railroad’s policy not to grease gooseneck couplers] the way we’ve done it over a period of time is negligent or not.”

Jones’ attorney responded (during closing argument) by pointing out that Norfolk Southern failed to present proof supporting the railroad’s long-held accusations that Jones is a fake, a liar and a cheat; that the accident report Jones submitted on the night of the accident was missing, and that the railroad’s key witnesses (two Norfolk Southern foremen who inspected the “gooseneck” coupler on the night of the accident) gave dubious testimony regarding the extent of their inspection. Specifically, Jones’ attorney questioned how the foremen could have possibly tested the lateral play in the “goose-neck” coupler in light of proof that such a test cannot be performed while a coupler is engaged and that the “gooseneck” coupler that caused Jones’ injuries was engaged at the time of the alleged inspection. Along the same line, Jones’ attorney pointed out noticeable differences in the handwriting on the foremens’ inspection report indicating an alteration on a portion of the report providing that the “LATERAL PLAY” in the coupler was “OK.” Jones’ attorney suggested that these inconsistencies indicated that Norfolk Southern was involved in a cover-up and that the railroad routinely employed such draconian tactics to avoid liability under the FELA and the Safety Appliances Act. Jones’ attorney also suggested that the Safety Appliances Act is ineffectual because it calls for the railroad to monitor itself; that it is against the railroad’s interest to report violations under the Safety Appliances Act, and that, when issues of liability arise under the Safety Appliances Act, the railroad defends itself by accusing the injured worker of dishonesty or, alternatively, contributory negligence. Jones’ attorney thus reasoned that the jury is the only reliable source for determining whether Norfolk Southern violated the Safety Appliances Act. He then concluded by asserting a systematic and logical argument relating to evidence of Jones’ damages. Jones’ attorney did not mention Norfolk Southern during the phase of his argument relating to Jones’ claim for general damages, i.e., past and future pain and suffering.

After deliberating three hours and returning with specific questions regarding the Safety Appliances Act, the jury specified that “[w]e are divided” as to Norfolk Southern’s liability under the Safety Appliances Act. The jury also specified that Norfolk Southern was “negligent under the Federal Employee Liability Act” and that Jones was not “contributory negligent.” The jury then segregated damages, awarding Jones $110,000 for past lost wages, $665,000 for future lost wages, $200,000 for past pain and suffering, and $600,000 for future pain and suffering.

1. Norfolk Southern contends the trial court erred in permitting Jones to inquire into the railroad’s new policy (taken after Jones was injured) of lubricating “gooseneck” couplers. The railroad argues that Jones’ attorney’s question to the railroad’s general foreman — “do you have to grease coupler carriers on cars that don’t have goose-necks?” — violated the trial court’s pretrial directive for Jones not to bring up the fact that “a year and a half later [the railroad] started lubricating all these things.” We do not agree.

The objectional question was posed during the following examination: “[JONES’ ATTORNEY:] Now, the goosenecks have longer shanks than do ordinary freight cars, don’t they? [THE RAILROAD’S GENERAL FOREMAN:] That’s right. Q. And I’m not saying anything about this, but this freight car right here wouldn’t have a gooseneck, would it, this model if it was made right wouldn’t have a gooseneck, would it? A. Not unless it was longer than fifty feet. Q. But a boxcar just never has a gooseneck unless it’s longer than fifty feet, correct? A. That’s right. Q. All right. And you wouldn’t expect a gooseneck on any car that’s fifty feet, would you? A. No, I wouldn’t. Q. Now, are you required — do you have to grease coupler carriers on cars that don’t have goosenecks? A. We grease them all now. Q. Well, but at the time this happened in 1991 did you have to grease those ones that didn’t have goosenecks? A. We didn’t grease anything.”

From this perspective, we cannot say that the question to which the railroad now objects was designed to elicit a response which was violative of the trial court’s directive. On the contrary, it appears that the unresponsive answer by Norfolk Southern’s general foreman — “[w]e grease them all now” — was the only cause for transgression of the trial court’s pretrial directive not to bring up the fact that “a year and a half later [the railroad] started lubricating all these things.” Moreover, inasmuch as the witness was hostile, Norfolk Southern’s assertion that Jones embarked on this line of questioning knowing the witness would respond the way he did is speculative, at best.

2. Norfolk Southern contends the trial court erroneously excluded from evidence a video tape recording demonstrating the proper method of aligning a railway switching device similar to those Jones was required to operate.

The record shows that the video recording has two parts. The first segment depicts a grey-haired gentleman demonstrating the function of a railroad switching device, and the second segment depicts the entrance of a young woman. She is professionally clad, wearing heels, a silk suit and neat hair. This woman informs the greyhaired gentleman that she is the billing manager at the railroad’s attorney’s law firm; that her stature is five feet and one inch; that she weighs 117 pounds, and that she too can operate the switching device. After the older gentleman offers her a try, the young woman negotiates a rocky incline to the tracks, stoops with her back to the camera, jerks the switching device’s large lever and successfully adjusts the tracks. The production ends after the woman turns, walks toward the video camera and giggles.

Jones’ counsel objected to the tape’s introduction into evidence, arguing (in part) that “they’re basically trying to ridicule my client by bringing someone who appears fair, smaller, et cetera, to throw the switch. It’s not the switch that they asked him to throw; that’s in different conditions than they asked him to work in. That’s one switch out of how many he may throw in a given time period.” In opposition, Norfolk Southern’s attorney argued that the demonstration was relevant to the railroad’s claim that Jones faked a return-to-work test in which he could not properly align a railroad switch. The trial court excluded the video, ruling that the demonstration was prejudicial and that it is unrelated to the key issue of whether Jones was injured while aligning a “gooseneck” coupler. The railroad persisted, however, offering to show only the portion of the tape with the greyhaired gentleman. The trial court refused.

The admission or exclusion of a video tape demonstration is a matter of the trial court’s discretion and will not be overturned unless abused. CSX Transp. v. McCord, 202 Ga. App. 365, 368 (5) (414 SE2d 508); Adams v. Southern R. Co., 180 Ga. App. 578 (349 SE2d 809). See Woods v. State, 210 Ga. App. 172, 173 (2), 174 (435 SE2d 464). In light of the circumstances of the video taped demonstration in the case sub judice, as well as Norfolk Southern’s apparent abandonment (during closing argument) of its claim that Jones was exaggerating his injuries, we find no abuse of discretion or harm in the trial court’s ruling not to admit the video tape recording into evidence. This enumeration is without merit.

3. Norfolk Southern contends the trial court erred in charging the jury that it must apply a below market discount rate to calculate the present value of Jones’ future lost earnings. The railroad also contends the evidence failed to support the method of calculation the jury was instructed to use. We disagree on both grounds.

In FELA actions, “[i]t is . . . permissible for the [trial] judge to recommend to the jury one or more methods of calculating [the] present value [of future lost earnings] so long as the judge does not in effect pre-empt the jury’s function.” Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 342 (108 SC 1837, 100 LE2d 349). The trial court’s instruction in the case sub judice with regard to the method for discounting any award for future lost earnings does not require the application of a specific discount rate, impose rigid mathematical limitations on the calculation of any future lost wages, or remove an essentially factual question from the jury’s purview. The charge included a description of the components of future lost wages, an explanation of factors that may increase or decrease the value of these elements and a general directive that any “lump sum” award for future lost income must be discounted to reflect present value. The method of discounting was described as “a below market discount rate which represents the estimated market interest rate the award would be expected to earn over the period of loss, adjusted for the effects of any income tax from interest so earned and then reduced by an estimated rate of future price inflation.” This directive did not preempt the jury’s function in calculating future lost wages. Compare Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 340-342, supra. Further, the evidence from Jones’ economic expert fully supports the instruction. His description of the method of calculating present value, as the market interest rate reduced by inflation, is substantially similar to the above instruction.

4. Norfolk Southern contends the trial court erred in denying its motion for mistrial based on allegedly improper comments during closing argument which resulted in a punitive damages award. Specifically, the railroad argues that Jones’ attorney employed “pejorative” arguments against the railroad which inspired the jury to send a message to the railroad via an excessive verdict. We do not agree.

“[I]n determining whether a trial court abuses its discretion in refusing to order a new trial on the issue of damages in an FELA case, ‘the appellate court must make its own “detailed appraisal of the evidence bearing on damages.” Grunenthal v. Long Island Rail Road Co., 393 U. S. 156, 159 (89 SC 331, 333, 21 LE2d 309) (1968).’ Nairn v. National Rd. Passenger Corp., [837 F2d 565, 567 (1988)].” Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 686 (398 SE2d 365). A detailed examination of the evidence bearing on damages in the case sub judice does not demand a judicial finding that the jury’s $110,000 award for past lost wages, $665,000 award for future lost wages, $200,000 award for past pain and suffering and $600,000 award for future pain and suffering are “ ‘so excessive ... as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. . . . (Cits.)’ Lane v. Gorman, [347 F2d 332, 335 (1965)].” Seaboard System R. v. Taylor, 176 Ga. App. 847, 849 (2) (338 SE2d 23). On the contrary, we observe factors that authorize a finding that the jury was not motivated by hatred or passion against Norfolk Southern. And when read in proper context, we do not believe the “pejorative” remarks cited in the dissenting opinion were uttered with insidious intent, but were within the range of permissible closing argument.

(a) The Standard of Review. It is true that “ ‘damages recoverable under the FELA on account of a railroad employee suffering injury or death on the job are compensatory only and that punitive damages are not recoverable. (Cit.) However, the jury’s determination of the amount of damages to be awarded is otherwise inviolate, “absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. . . . (Cits.)” Lane v. Gorman, 347 F2d 332, 335 (10th Cir. 1965). This standard of review is consistent with that which obtains under Georgia law, which has been stated as follows: “Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear ‘(exorbitant),’ ‘flagrantly outrageous,’ and ‘extravagant.’ ‘It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.’ It must carry its death warrant upon its face.” (Cits.)’ Seaboard System R. v. Taylor, 176 Ga. App. 847, 849 (2)[, supra].” CSX Transp. v. Darling, 189 Ga. App. 719, 721 (1) (377 SE2d 217). In the case sub judice, Norfolk Southern urges this Court to discard these well established maxims via primary reference to Central of Ga. R. Co. v. Swindle, 260 Ga. 685, supra, where the Supreme Court set aside a general verdict because of exceptional circumstances signifying that the jury’s award was motivated by passion, rather than proof of loss. Id. at 686.

Although Swindle and the case sub judice are similar in that both involve review of FELA verdicts that are beyond quantitative justification, the similarities end there. In Swindle, the Supreme Court concluded that the jury’s $875,000 general damage award was motivated by passion (roused via “pejorative” comments against the railroad during closing argument) because (1) the verdict was more than 14 times greater than the plaintiff’s medical expenses and lost wages of $59,308.82; (2) the plaintiff suffered no occupational disability; and (3) there was no proof that the plaintiff suffered permanent debilitating injuries. In contrast, the jury’s $800,000 award in the case sub judice for past and future pain and suffering is within $25,000 of the jury’s total award for lost wages ($775,000), and is over $50,000 less than the highest amount of special damages Jones tendered into evidence at trial. Also unlike Swindle, there is evidence in the case sub judice that Jones suffers permanent occupational and recreational disabilities; that Jones’ injuries caused him excruciating pain during rehabilitation, and that permanent scaring around Jones’ spinal cord will result in periodic, progressive and debilitating back pain for the rest of his natural life, projected at over 40 years. And while this evidence sounds poignant differences between Swindle and the case sub judice, the most striking evidentiary distinction is that Jones is not prepared or qualified, as was the plaintiff in Swindle, to absorb the harsh personal, social and economic consequences of his injury.

There is evidence that Jones, once a professional football hopeful, is not educationally advanced or skilled; that his only advantage was a unique physical prowess and that this talent is now gone. This proof, and evidence that Jones is now only qualified or able to perform unskilled and low-paying clerical work, would authorize a finding that Jones will never be able to pick up his life where he left off before his injury and that Jones is now relegated to a personal, social and economic posture that he never envisioned. As a reviewing court, we must presume that such legitimate factors contributed to the jury’s $800,000 award for past and future pain and suffering. See Realty Bond & Mtg. Co. v. Harley, 19 Ga. App. 186, 187 (2), 189 (91 SE 254). Accordingly, we cannot say (as a matter of law) that the jury’s general damage awards, totaling $800,000 for past and future pain and suffering, are excessive and can only be explained logically as having resulted from an improper cause. Indeed, contrary to the dissent’s view, we observe factors indicating that the jury was a pensive group, intent on resolving the issues of damage (as well as liability) according to the evidence adduced at trial and the trial court’s instructions. Specifically, the jury returned a special verdict, rather than a general verdict, segregating past pain and suffering ($200,000) from future pain and suffering ($600,000); the jury’s awards for past lost wages ($110,000) and projected lost wages ($665,000) are well within the range of proof tendered at trial; the jurors deliberated for over three hours before reaching a verdict; they asked several questions during deliberations regarding Norfolk Southern’s liability under the “Automatic Coupler” or Safety Appliances Act and they stated in a special verdict form that they are “divided” on the issue of Norfolk Southern’s liability under the Safety Appliances Act.

(b) “Pejorative Remarks” and Closing Argument. Although “pejorative” argument has been a basis for questioning general damage awards in FELA cases, CSX Transp. v. Levant, 262 Ga. 313, 314 (1) (417 SE2d 320); Central of Ga. R. Co. v. Swindle, 260 Ga. 685, supra, belittling portrayal of an opposing party during closing argument has been endorsed when such oratory relates to issues that are properly before the jury. Miller v. Coleman, 213 Ga. 125, 129 (6), 130 (97 SE2d 313). The law only forbids the introduction of facts, by way of argument, that are not in the record and are calculated to prejudice the opposite party. Id.

In the case sub judice, the “pejorative” arguments cited in the dissenting opinion do not inject facts in the record as was the case in Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 687, n. 1, supra. On the contrary, our reading of the trial transcript reveals that the comments quoted in the dissenting opinion relate to issues that were properly before the jury. We, therefore, do not believe Jones’ attorney stepped outside the scope of permissible closing argument.

The First “Pejorative” Argument. The first quotation in the dissenting opinion regarding a “pejorative” argument by Jones’ attorney — “these people haven’t learned a lesson. Nothing has been taught to them about how to run a railroad or how to treat human beings” — is addressed to Norfolk Southern’s defense that Jones is the sole proximate cause of his injury, and follows argument relating to the railroad’s claim that Jones lied about the incident which caused his injury. Jones’ premise appears to be that Norfolk Southern resorted to draconian tactics to avoid responsibility under the Safety Appliances Act, 45 USC § 1 et seq.

Norfolk Southern’s liability under the Safety Appliances Act was an issue at trial and, to this extent, there is proof that Norfolk Southern supervisors circulated baseless rumors that Jones faked his work-related accident. Under these circumstances, and in view of evidence indicating that documents relating to the railroad’s compliance with the Safety Appliances Act may have been altered to cover-up the condition of the “gooseneck” coupler that caused Jones’ injuries, we believe the first “pejorative” argument quoted in the dissenting opinion is within the range of permissible closing argument.

The Second “Pejorative” Argument. The phrase — “what it boils down to is Andra just doesn’t matter to them” — relates to an argument concerning proof that a pertinent document had been altered without Jones’ approval. Under these circumstances, we believe it was permissible for Jones’ attorney to argue that Jones’ objections to such alterations “just doesn’t matter to them.”

The Third “Pejorative” Argument. The final “pejorative” phrase quoted by the dissent — “they’ve [Norfolk Southern’s] got to hear it from you” — relates to a comment regarding the jury’s role in resolving the question of whether greasing “gooseneck” couplers is required under the Safety Appliances Act. The full context of this phrase is as follows: “If [Norfolk Southern] called you on the phone at night, look, what did we do wrong, you’d say well, grease those coupler carriers. ... I mean, but you know, they’ve got to hear it from you.”

We do not view the above logic as an attempt to inject prejudice against Norfolk Southern. On the contrary, the argument appears to be an accurate characterization of the jury’s role in resolving a prime issue of liability, i.e., whether Norfolk Southern was in compliance with the Safety Appliances Act.

(c) The Nature of Jones’ Closing Argument. Jones’ attorney’s closing statement logically divides arguments relating to liability from arguments relating to damages. Specifically, after debating liability, Jones’ attorney went through each item of damage specified on the special verdict form and suggested means by which the jury may calculate damages. He did not then, nor (in our view) at any phase during closing argument, unduly belittle Norfolk Southern or attempt to rouse baseless fury against the railroad. On the contrary, Jones’ attorney admonished the jury during the damages phase of his closing argument to return a verdict in accordance with the evidence adduced at trial and in compliance with the trial court’s instructions regarding the appropriate measure of damages. In fact, during his specific argument relating to past and future pain and suffering, Jones’ attorney did not even mention Norfolk Southern. He asserted the following: “Finally, the element of pain and suffering, past and future, will be on your verdict form. We submit that should be a substantial award in this case. Not based on how you would feel if your back was operated on or how I would feel, not based on what you know about somebody, but what you think Mr. Andra Jones’ experience is. I’m going to tell you something, folks. Some of us have lots of talent that we can do things with. I never could have tried out for pro football. I don’t think they’d let me carry the ice bucket, but some people who’ve got great physical ability pride themselves on that and that’s kind of what they think is important.

“In the language of the doctor that the railroad sent [Jones] to, he’s lost twenty percent of what he was. What you think he’s lost is up to you. What Andra has lost in terms of pain and suffering is a permanent partial disability, that is, not just the work life expectancy, but for each day of his life he will have that limitation. But that doesn’t mean he’s going to get up feeling like he’s got to reach for a cane or advil every day. But what it does mean is that he doesn’t take steps like he could, he can’t play sports like he could, he’s not going to play rugby any more, you’re going to catch him out there shooting hoops. He is not going to be the kind of person who is going to do anything that’s going to risk his back, not now, not ever. That’s a heck of a price to pay. That is not something that anybody wants to volunteer to give up.

“Now, all of us want to have good health and all of us know folks who don’t. But nobody should have it taken away from them. And I want to ask you to give something reasonable and fair as compensation for that, but what you give for that is up to you. We submit it ought to be in the range in what you give for other elements of damage. You decide. But I’ll tell you it ought to be something significant. It ought to be something you address and think about. Okay?

“The pain and suffering part is something he’ll always have. It doesn’t matter where he is or what he’s doing, some amount of that will be with him. I’m going to leave it up to you. The judge will say your enlightened conscience. That’s actually the test for what’s appropriate for general damages, anxiety, worry, the shock, noise, those kind of physical changes. Having surgery on your back a few times having a different back. That is left up to the enlightened conscience of fair and impartial jurors in the language that’s going to be given by the court.”

The trial court did not err in denying Norfolk Southern’s motion for a mistrial.

Judgment affirmed.

Pope, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Beasley, C. J., Birdsong, P. J., and Smith, J., concur in judgment only. Andrews, J., dissents.

Andrews, Judge,

dissenting.

I respectfully dissent because the $800,000 award for past and future pain and suffering is excessive and can only be explained logically as having resulted from an improper cause.

The majority mischaracterizes the evidence of Jones’ future prospects. Although the evidence showed that Jones suffered pain after his injury and consequent to his two surgical procedures, an orthopedic surgeon evaluated Jones’ permanent disability at 20 percent. Medical records from before the laminectomy indicated that Jones complained of pain while playing basketball and volleyball. Records from after the laminectomy show that the only abnormality observed was some limitation in Jones’ ability to raise his leg while straight, characterized as not severe. In addition, a consulting physician found nothing objective to substantiate Jones’ complaints of pain. It is undisputed that Jones can perform at least sedentary to light work. Jones did well in school, attended college on a full football scholarship, finished all his course work, and majored in business administration, but did not graduate because he failed the Regent’s test the only time he took it. Although he presently works without pay as a clerk for his wife’s automotive body shop, the employee who formerly held this job was paid $21,000 per year. The majority’s conclusion that Jones’ only advantage was his (now lost) unique physical prowess belittles his other talents. Although, undoubtedly, Jones is entitled to some compensation for past and future pain and suffering, the evidence does not support an award for the amount he received.

I believe Jones’ counsel’s attempts to vilify Norfolk Southern as an entity unconcerned with its employees’ well-being, dignity, or sense of self-worth account for this disparity between the evidence and the award. In closing, counsel argued “these people haven’t learned a lesson. Nothing has been taught to them about how to run a railroad or how to treat human beings.” Later, he stated “what it boils down to is Andra just doesn’t matter to them.” In the context of greasing the coupler carriers which were at issue in the unsuccessful Safety Appliances Act claim, counsel also argued that “they’ve [Norfolk Southern] got to hear it from you.”

Decided December 5, 1995

Reconsideration denied December 20, 1995

Branch, Pike & Ganz, Thomas B. Branch III, Tanya M. Lawson, for appellant.

Blackwood & Matthews, B. Randall Blackwood, John D. Steel, for appellee.

The Supreme Court found that similar pejorative arguments in a FELA case suggested that the verdict was rendered at least in part with a punitive intent. Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 687 (398 SE2d 365) (1990). Because punitive damages are not recoverable in FELA cases, counsel’s arguments were improper. Id.

       In response to the dissent’s charge that we inaccurately characterize “the evidence of Jones’ future prospects!,]” we merely point out that on appeal an appellate court is bound to construe the evidence with every reasonable inference and presumption in favor of upholding the jury’s verdict. Mills v. State, 137 Ga. App. 305 (1) (223 SE2d 498). Nothing more is acceptable upon appellate review, and we have recently affirmed this point in an FELA case where a railroad employee challenged a verdict in favor of the railroad. See Neal v. CSX Transp., 213 Ga. App. 707, 709 (2) (445 SE2d 766).

       The railroad’s attorney pointed out during closing argument that Andra Jones was not seeking medical expenses because these costs were already covered by insurance provided through Norfolk Southern. This assertion does not appear to be in dispute.

       The evidence at trial indicates that at the time of Jones’ injury, Norfolk Southern used at least two types of couplers, short couplers and “gooseneck” couplers. The former were kept greased and the longer “goosenecks” were not. After Jones’ injury, “gooseneck” couplers were greased. Of course, Jones’ negligence claim is primarily premised on Norfolk Southern’s failure to grease “gooseneck” couplers.

       The jury’s awards for past and future lost wages are within the range of evidence adduced at trial. Jones was injured on February 23, 1991, and trial concluded on November 10, 1994. Jones earned $31,384 in 1988, $26,937 in 1989, $34,209 in 1990, $14,061 in 1991, $244 in 1992 and $463 in 1993. Jones’ economics expert calculated past lost wages at $106,294 in after-tax dollars, using the 1990 earnings and offsetting the amounts earned after the injury. This expert used 1990 earnings to project the present value of Jones’ after-tax lost future earnings. He took the average yield on a three-year government bond since 1954 and compared it with inflation to get an adjusted real interest rate or discount rate of 2.2 percent. He also considered the cost of replacement insurance and Jones’ possible future earnings in light of a vocational rehabilitation expert’s testimony, predicting amounts Jones could earn in the future. The economist testified that, assuming Jones could earn between $16,567 and $21,500 per year, with a work-life expectancy of 24.95 years, the present value of his future lost income was $690,542 to $745,443. Norfolk Southern’s economist calculated the present value of Jones’ lost future earnings at $429,412, using a higher discount rate.

       Although Jones attended college and was involved there in athletics, he did not obtain a degree because he failed to pass a standard academic examination required for graduation.

       While Jones’ attorney strongly criticized Norfolk Southern for purportedly attempting to avoid liability under the FELA and the Safety Appliances Act via use of draconian tactics, we cannot say that his arguments were irrelevant, unsupported by evidence and designed solely to inflame passion against the railroad. The railroad’s compliance with the FELA and the Safety Appliances Act were critical issues at trial and so were the railroad’s defenses of contributory negligence and (until closing argument) fraud by Jones. Weighing against the railroad’s claims, however, and supporting Jones’ theory that the railroad would resort to sordid tactics to avoid liability is Norfolk Southern’s admission (during closing argument) that its supervisors circulated baseless rumors against Jones, evidence that a railroad supervisor did not testify candidly about offering Jones an alternative clerical job; evidence that a report submitted to the railroad by Jones on the night of the accident disappeared, and evidence raising doubt as to the reliability of the railroad’s Safety Appliances Act report that the lateral play in the “gooseneck” coupler was “OK” on the night Jones was injured.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Andrews, Judge, Smith, Judge,

license: Public Domain

text:
    A95A0884.
    PIGGLY WIGGLY SOUTHERN, INC. et al. v. BROWN.
    (468 SE2d 387)
   McMurray, Presiding Judge.

Margaret Brown brought an action against Piggly Wiggly Southern Corporation (“Piggly Wiggly”) for damages she allegedly sustained when she slipped and fell in a small puddle of water in Piggly Wiggly’s grocery store. Piggly Wiggly denied the material allegations of the complaint and filed a motion for summary judgment, arguing that Margaret Brown’s admission that she could have seen the water (had she been looking for it) constitutes conclusive proof that Brown’s own carelessness was the sole proximate cause of her alleged injuries.

On the morning of September 14, 1991, Margaret Brown and her sister, Josephine Moore, drove to Piggly Wiggly’s grocery store in Hawkinsville, Georgia. Josephine Moore waited in the car while Brown went in to purchase a can of soup. After entering the store, Margaret Brown walked through a long bank of cash registers and veered right toward a table of potatoes in the produce section. Upon approaching the row of shelving which faces or borders the produce section, Margaret Brown saw “[a] little sign up there saying . . . what stuff [is] on each aisle” and started to turn down the aisle toward the soup. While pivoting into the turn, however, Margaret Brown lost control and crashed hard into the potato display. She slipped in a puddle of water about the size of a dinner plate.

While on the floor, Margaret Brown saw a store employee in a nearby storeroom shoveling ice from an ice machine into a container. Former Piggly Wiggly employee James Hampton, who was employed as a “bag boy” there at the time of the fall, explained (in his affidavit) that “the produce man would usually have to make several trips from the ice maker to the produce counter in order to fill the area under the [fruit and vegetable] tray.” James Hampton said that he observed “the produce man icing down the produce counter . . .” about two hours earlier and that he then saw “water on the floor in the produce section. . . .” James Hampton explained that the “produce man” would routinely drop “chunks of ice” on the floor as he transported it to the fruit and vegetable trays and that, “[djuring the time [he] worked at the Piggly Wiggly Store, [he has] on more than a few occasions seen water on the floor that has remained there for long periods of time.” James Hampton said the store manager “never [gave] any specific instructions . . . about inspecting the aisles for water or other substances on the floor.”

The trial court denied Piggly Wiggly’s motion for summary judgment, finding that genuine issues of material fact remain for jury resolution. This interlocutory appeal followed. Held:

“An owner/occupier of premises has a duty to keep those premises safe for its invitees. OCGA § 51-3-1; Thompson v. Regency Mall Assoc., 209 Ga. App. 1 (432 SE2d 230) (1993). ‘An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. (Cit.) It is this implied representation that is made to the public, by holding the land open to them, that it has been prepared for their reception, that it is safe, that is the basis for the possessor’s liability. (Cit.)’ Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984).

“In order to recover for a slip and fall due to a foreign substance on the floor, the plaintiff must show that the defendant had actual or constructive knowledge of the hazard, and that the plaintiff was without equal knowledge of such. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). ‘Liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative knowledge possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. The basis of the proprietor’s liability is his superior knowledge. . . .’ Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992).” Burke v. Bi-Lo, 212 Ga. App. 115, 116 (441 SE2d 429).

In the case sub judice, former Piggly Wiggly “bag boy” James Hampton deposed that he was aware that water had accumulated on the floor in the produce section before Margaret Brown fell and that indifference to such puddling was a matter of routine at Piggly Wiggly’s store in Hawkinsville, Georgia. This evidence not only satisfies the first prong of the Alterman Foods test by indicating that a Piggly Wiggly employee had actual knowledge of the hazard which caused Margaret Brown’s fall, but it would also authorize a finding (if a jury so chooses) that Piggly Wiggly, as a matter of routine indifference, did not bother to remove the hazard. Assuming the dissent is correct, however, in inferring (via the statement that there “is no evidence the store had actual knowledge of the water . . .”) that Margaret Brown, in order to prove actual knowledge, was required to show that either James Hampton or another Piggly Wiggly employee could call the particular water puddle where Margaret Brown fell by name (so to speak), Piggly Wiggly has failed to negate the possibility of its constructive knowledge of the hazard. Specifically, Piggly Wiggly offers no proof that it employed routine inspection procedures aimed at detecting and preventing dangerous spills in its store and, even more amazingly, Piggly Wiggly offers no testimony to rebut James Hampton’s sworn statement that he had no knowledge of store policy regarding such inspections. “The evidence thus failed to negate the possibility that [Piggly Wiggly] did not exercise reasonable care in this case, even if the store had a general inspection routine. See Hilsman v. Kroger Co., 187 Ga. App. 570 (370 SE2d 755) (1988); Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991). Further, [contrary to the dissenting opinion,] in the absence of any evidence that [Piggly Wiggly] conducted a reasonable inspection of the premises prior to the fall, [Margaret Brown] was not required to establish how long the spill had remained on the floor. Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992).” Burke v. Bi-Lo, 212 Ga. App. 115, 117, supra. Thus, the only question remaining is whether Margaret Brown had equal knowledge of the alleged water hazard, i.e., did she exercise ordinary care for her own safety?

Margaret Brown testified that she did not see the small puddle of water before she fell. It therefore cannot be said (as a matter of law) that Margaret Brown actually had knowledge of the specific hazard which caused her to fall. See Grovner v. Winn Dixie Stores, 218 Ga. App. 495, 496 (462 SE2d 427). “Thus, the facts of this case are distinguishable from [controlling authority] in support of [the dissent’s] conclusion that [Brown] is precluded from recovering because of her equal knowledge. See, e.g., Kersey v. C. S. R. A. &c. Auth., 195 Ga. App. 94 (392 SE2d 305) (1990) (in which plaintiff alleged no defect or foreign substance, but merely that defendant was negligent in sending her down a stairway while she was carrying a heavy load); Gyles, Inc. v. Turner, 184 Ga. App. 376 (361 SE2d 538) (1987) (in which plaintiff was aware of the discernible object which caused the hazard); Harris v. Star Svc. &c. Co., 170 Ga. App. 816 (318 SE2d 239) (1984) (in which plaintiff knew he was traversing ice and snow accumulated on the premises of defendant gas station).” Flood v. Camp Oil Co., 201 Ga. App. 451, 452, supra. Also see Van Dyke v. Emro Mktg. Co., 211 Ga. App. 744 (440 SE2d 469) (where this Court reversed summary judgment even though there was evidence that the plaintiff had prior knowledge of the hazard which allegedly caused his fall). And contrary to the dissenting opinion in the case sub judice, we do not subscribe to the view that shoppers must be on constant lookout for such obtuse hazards as small puddles of water.

“An invitee is [simply] not required to look for . . . defects continuously and without interruption. See Thompson v. Regency Mall Assoc., supra.Burke v. Bi-Lo, 212 Ga. App. 115, 117, supra. In the case sub judice, there is proof which would authorize a jury’s finding that Margaret Brown was shopping, had just observed an overhead directory sign and was pivoting into a left turn when she hit a small puddle of water at the corner of an aisle, nearest the shelving facing the produce section. There is also proof which would authorize a finding that this puddle was caused by melted ice dropped by the man in charge of the produce section; that this patch of melted ice water had been on the floor for at least two hours before Margaret Brown’s fall (or at least long enough for the ice to melt) and that the hazard was just large “enough for your shoe to fit in. . . .” Under these circumstances, we cannot say (as a matter of law) that the small puddle of water which caused Margaret Brown’s fall was such an open and obvious danger that the average shopper, in the exercise of ordinary care, would have observed the puddle and avoided it. See Grovner v. Winn Dixie Stores, 218 Ga. App. 495, 496, supra. Such questions of negligence and diligence, including the related issues of lack of ordinary care for one’s own safety or lack of ordinary care in failing to see or observe the negligence of another, are ordinarily for a jury. Hester v. Baker, 180 Ga. App. 627, 629 (3), 630 (349 SE2d 834).

“A finding that the plaintiff is precluded from recovering in a slip and fall case because of her own equal or superior knowledge of the hazard is, in essence, a finding that plaintiff’s own negligence preponderated in causing the injury. Cf. Alterman Foods v. Ligon, 246 Ga. 620, 623[, supra]. ‘The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.’ Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (II) (227 SE2d 336) (1976).” Flood v. Camp Oil Co., 201 Ga. App. 451, 452, supra. In the case sub judice, the trial court found that the evidence was not so plain, palpable and undisputable so as to preclude Margaret Brown from recovering in this slip and fall case because of her own equal or superior knowledge of the hazard. We think the trial court was correct in so ruling and affirm its judgment. See Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485).

Judgment affirmed.

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

Andrews, Judge,

dissenting.

As Brown turned to enter the soup aisle at the Piggly Wiggly store, she stepped into a puddle of water, slipped, and fell. In her deposition, Brown testified that she did not see the water before she stepped in it, but that it was clearly visible and that she would have seen it if she had looked. She stated that nothing would have prevented her from seeing the water if she had looked down.

“[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.” Al terman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). There is no evidence the store had any actual knowledge of the water in which Brown slipped and fell. Even assuming the store had constructive knowledge of the water, Piggly Wiggly was still entitled to summary judgment under the second prong of Alterman Foods, supra.

Under the second prong of Alterman Foods, supra, the store was entitled to summary judgment if Brown knew about or should have discovered the puddle, unless the store somehow prevented her from discovering it. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). This part of the Alterman Foods test demands that a person must “exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Alterman Foods, supra at 623. Even if the store is charged with constructive knowledge of the puddle, so long as Brown saw or, in the exercise of ordinary care, should have seen the puddle, and the store did nothing to prevent her from seeing it, Brown is deemed to have knowledge of the hazard and is barred from recovery. Id. at 623.

Brown admitted in her deposition that although she did not see the puddle before she fell, it was clearly visible and she would have seen it if she had looked down. She admitted that nothing prevented her from seeing the puddle, and she made no claim that she was distracted by anything. These admissions are fatal to her claim. Although the exercise of ordinary care for one’s own safety does not require a continuous scanning of the floor for possible defects under all circumstances, ordinary care does require the use of one’s eyesight to discover and avoid hazards in plain view. Vermont American Corp. v. Day, 217 Ga. App. 65, 66 (456 SE2d 618) (1995); J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 811 (440 SE2d 548) (1994); Yeaple v. Grand Union Co., 207 Ga. App. 15, 16 (427 SE2d 13) (1992); Sinclair v. Orozco, 205 Ga. App. 498, 499 (423 SE2d 25) (1992). Thus, where, as here, an injury resulted from a plainly visible defect in the plaintiff’s path, that the plaintiff admits she would have seen if she had looked, we have repeatedly held that the plaintiff is barred from recovery for failing to exercise ordinary care for her own safety. Vermont American Corp., supra at 66-67; Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 338 (449 SE2d 613) (1994); Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994); Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (443 SE2d 871) (1994); J. H. Harvey Co. v. Kinchen, 213 Ga. App. 868, 869 (446 SE2d 218) (1994); Johnson, supra at 811; Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994); Foodmax v. Terry, 210 Ga. App. 511, 513 (436 SE2d 725) (1993); Sinclair, supra; Riggs v. Great Atlantic & Pacific Tea Co., 205 Ga. App. 608, 609 (423 SE2d 8) (1992).

In holding that Brown’s knowledge of the puddle in this case does not bar her recovery, the majority relies on Van Dyke v. Emro Mktg. Co., 211 Ga. App. 744 (440 SE2d 469) (1993) and Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991) in an attempt to distinguish this case from other cases in which recovery was barred because the hazard was plainly visible. In those cases, we held that a jury question remained even though the puddles in which the plaintiffs slipped and fell were visible. Both Van Dyke and Flood are clearly distinguishable from the present case. In Van Dyke, although the plaintiff saw the puddle of water with a substance floating on top, he did not know the substance was kerosene, and did not fully appreciate the extremely slippery hazard presented by the combination of water and kerosene. Because a store employee had actually seen the kerosene spill and recognized the true nature of the puddle, we found there was a jury question as to whether the store had superior knowledge of the hazard. Similarly, in Flood we found that, although the plaintiff could see the oily wet pavement on which she stepped and slipped, she did not know of the increased hazard presented by diesel fuel which had spilled and mixed with the water and oil. Since there was evidence the defendant knew of the diesel fuel spill, we found there was a jury question as to whether the defendant had superior knowledge of the hazard. Here, Brown was as qualified as any store employee to recognize the hazard presented by a puddle of water, so there is no genuine issue of material fact in dispute regarding Brown’s knowledge of the nature of the hazard.

The proximate cause of Brown’s injury was her failure to exercise ordinary care for her own safety by discovering and avoiding the plainly visible puddle in her path. Accordingly, Piggly Wiggly was entitled to summary judgment.

I am authorized to state that Presiding Judge Birdsong, Judge Johnson and Judge Smith join in this dissent.

Smith, Judge,

dissenting.

While I concur fully with Judge Andrews’ dissent, I write separately to point out that the majority in this case is attempting to create a new rule of law on the issue of actual and constructive knowledge, a rule which is contrary to the Georgia Supreme Court’s holding in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). See separate dissent in Dill’s Food City v. Johnson, 219 Ga. App. 654 (466 SE2d 250) (1995).

I am authorized to state that Judge Andrews and Judge Johnson join in this dissent.

On Motion for Reconsideration.

In response to Piggly Wiggly’s claim on reconsideration that we misconstrued the evidence regarding James Hampton’s knowledge of “water on the floor in the produce section on the morning Margaret Brown fell[,]” we point out that on appeal an appellate court is bound to construe the evidence with every reasonable inference and presumption in favor of the non-moving party on summary judgment. Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245). From this perspective, we quote James Hampton’s affidavit in its entirety: “1. My name is JAMES HAMPTON and I am competent in all respects to testify regarding the matters set forth herein. 2. On Saturday, September 14, 1991, I was employed by Piggly Wiggly Store in Hawkinsville, Georgia, as a bag boy. I got to work on that date sometime after 7 A.M. I was in the store at the checkout counter when Margaret Brown, whom I know by sight, came into the store. 3. My regular duty was to bag groceries for customers, but I would be called on also to work as a stock boy, moving old stock off the shelves and replacing with new stock. 4. On the morning of September 14, 1991,1 recall the produce man icing down the produce counter around 9:00 A.M. The way this is done is that the produce man would transport containers full of crushed ice from the stock room where the ice making machine is located over to the produce counter. On several occasions I have seen chunks of ice fall from the container to the floor while being transported. Also, I have seen chunks of ice fall to the floor while the produce man is pouring ice under the tray upon which the vegetables and fruits are placed. The produce man would usually have to make several trips from the ice maker to the produce counter in order to fill the area under the tray. 5. When the produce man is adding fresh ice or cleaning out the old ice by draining water he usually puts out a ‘Wet Floor’ sign which is a white triangle with black letters. I did not see this sign on the floor on the morning that Margaret Brown fell. 6. The produce man would be the person responsible for mopping around the produce section. I don’t remember seeing him mopping the floor on the morning of September 14, 1991. 7. During the period of time I worked at the Piggly Wiggly Store, I have seen puddles in and around the produce section caused by chunks of melted ice that had fallen to the floor. 8. During the time I worked at the Piggly Wiggly Store, I have on more than a few occasions seen water on the floor that has remained there for long periods of time. 9. I have never been given any specific instructions by the manager, Mr. Braddock, about inspecting the aisles for water or other substances on the floor. It was my understanding that each employee was responsible for his own area. My area would be around the check-out counter where I worked as a bagger. I have on occasions been called by a customer who had pointed out water or some other substance on the floor. On those occasions, I have mopped up the water or spilt substances. 10. On the morning of September 14, 1991, sometime between 10 a.m. and 11 a.m., I remember Margaret Brown being helped by Mr. Braddock and Patricia as she was slowing [sic] walking from the direction of the produce section towards the front of the store. She appeared to be in a lot of pain. I heard Ms. Brown say she had slipped in water. 11. I remember seeing water on the floor in the produce section on the morning Margaret Brown fell. To my best recollection the water remained on the floor for a long time after Ms. Brown had left the store.”

Motion for reconsideration denied.

Decided December 5, 1995

Reconsideration denied December 20, 1995

Jones, Cork & Miller, Timothy Harden III, W. Kerry Howell, for appellants.

Thomas M. Jackson, for appellee.

       Brown includes the store manager, Gilbert Bradley, as a party to this action.

       Although the dissent states that Brown fell as she “turned to enter the soup aisle[,] the dissent fails to mention that there is evidence which would authorize a finding that the soup aisle shelving faces or borders the produce section. In this vein, we quote Josephine Moore’s testimony that she found her “sister ... on the floor when [she] went in the store” and that she then observed Margaret Brown “sitting between the potato racks.” Josephine Moore explained that several tables of vegetables (i.e., onions, carrots, etc.) were joined to the potato table and that Margaret Brown was “near a display in the produce section.” Defense counsel asked, “[W]as [Brown] at the beginning of an aisle?” And Josephine Moore responded: “No. She hadn’t made it to that aisle yet. I told you where she was[, she] was right there at the potato table.” In the same vein, Margaret Brown drew a crude diagram of the area where she fell during her deposition and marked thereon the position of the door where she first entered the store with a “D,” the location of the check-out stations she passed immediately before her fall with a “C” and the spot where she fell with an “X.” This diagram is attached as an appendix to this opinion.

       This is not to say, however, that there was no evidence of Piggly Wiggly’s constructive knowledge. “Constructive knowledge may be established by showing that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance or that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery. Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992).” Foodmax v. Terry, 210 Ga. App. 511 (1) (436 SE2d 725). In the case sub judice, Margaret Brown testified that a Piggly Wiggly employee was near the area where she fell, loading ice into a container, and Brown’s diagram of the store shows that the presumably busy cash register area was near the area where she fell. Further, James Hampton deposed that there was water in the produce section before Brown fell; that the “produce man” was responsible for cleaning up such spills, but that such cleanup duties were not a high priority at Piggly Wiggly’s Hawkinsville store.


author:
McMurray, Presiding Judge. Andrews, Judge,
      Smith, Judge,

text:
    A95A0932.
    AXOM v. WENDY’S INTERNATIONAL, INC.
    (466 SE2d 613)
   McMurray, Presiding Judge.

Vetrina Axom brought an action against Wendy’s International, Inc., d/b/a Wendy’s (“Wendy’s”) for damages she allegedly sustained when she slipped and fell in water at a Wendy’s fast-food restaurant. Specifically, Axom alleges that the water was next to a salad bar at the Wendy’s restaurant; that an employee of Wendy’s was tending the salad bar at the time of the fall; that the “water [was] colorless [and was therefore] not observable to [her] before her fall . . .” and that Wendy’s was “guilty of negligence ... in failing to clean the spilled water up promptly and in failing to warn [her] of the presence of said water. . . .” Wendy’s denied the material allegations of the complaint and filed a motion for summary judgment, arguing that Axom’s admission that she could have seen the water had she been looking for it constitutes conclusive proof that Axom’s own carelessness was the sole proximate cause of her alleged injuries.

On September 28, 1990, Axom drove with her son to a Wendy’s fast-food restaurant (during the evening dinner hour) to pick up some supper. Upon entering the restaurant, Axom met an old high school friend, Laquita Nolley, and observed a Wendy’s employee transferring various items (food and ice) between a cart and a nearby salad bar. After talking with her friend, Axom went to the restaurant’s service counter, placed an order and informed the clerk that she would not be dining at the restaurant. Axom paid the cashier and, within a short period, her order was bagged, cupped and ready to go. Axom slung her purse on her arm and took her food bag in one hand and her drink with the other. She then headed for the service island for condiments, i.e., straws, catsup and napkins. On her way, Axom noticed that the Wendy’s employee was still servicing the salad bar.

When Axom finished at the service island, she picked up her purse, food bag (now loaded with condiments) and drink, turned for the restaurant’s exit and proceeded through a relatively narrow passage between the salad bar and the dining area. “As she passed [the table where her friend Laquita Nolley was sitting, Axom] smiled and her lips said goodbye.” At that moment, Axom’s skirt, food bag, drink and purse sailed into the air and her body fell backward onto the restaurant’s hard-surfaced floor. The salad bar attendant immediately “looked down[,] turned around and she said, are you all right, are you all right ... let me go get the manager.” Dazed and humiliated, Axom did not give a definitive answer. She only noticed (while sprawled on the deck) that the floor was wet and (a few moments later) that her skirt and underwear were soaked.

“The manager came and squatted beside [Axom and she] asked [him] what had happened[. He] told [Axom that she] had slipped on some water and fell. The manager [then] pulled out a dining room chair and helped [the injured patron], together with the assistance of the salad bar attendant, get seated in the chair. [Next, the] manager ordered the employee to get a mop and mop up the water and put out the wet floor sign.” Axom (later) explained that she did not see anything unusual on the floor or around the base of the salad bar before her fall. However, she admitted (during a deposition) that “[i]f I had been just walking with my head down, you know, I guess I could have [seen that water].”

The trial court granted Wendy’s motion for summary judgment. This appeal followed. Held:

To recover on summary judgment for a slip and fall due to a foreign substance on the floor, the circumstances must show (1) that the proprietor had actual or constructive knowledge of the hazard, and (2) that the plaintiff was without equal knowledge of the hazard. See Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). In the case sub judice, Axom displayed her proof of “[constructive knowledge ... by showing that an employee of [Wendy’s] was in the immediate area of the hazardous condition. . . . Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992).” Foodmax v. Terry, 210 Ga. App. 511 (1) (436 SE2d 725). In this regard, Axom testified that a Wendy’s employee was attending the salad bar when she entered the restaurant; that the salad bar was in the immediate vicinity of her fall and that the salad bar attendant was squatting and scooping ice from the bottom of a food cart at the moment of the fall. This testimony, along with the corroborating affidavit of Laquita Nolley, would authorize a finding that Wendy’s had constructive knowledge of the water hazard that purportedly caused Vetrina Axom’s fall. See Hardin v. Super Discount Market, 205 Ga. App. 646, 647 (423 SE2d 18). Thus, the only question remaining is whether Axom had equal knowledge of the alleged water hazard, i.e., did she exercise ordinary care for her own safety?

“In Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994), our Supreme Court held that the plaintiff’s explanation as to why he was not looking where he was going as he approached the check-out counter, that being, that he was looking at the cashier to tell him he was ready to check out, created a fact issue for jury determination. ‘This testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter.’ Id.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319). In the case sub judice, Axom’s proof would authorize a finding that she did not see the water hazard on the floor before her fall because it was transparent, because she was maneuvering through a busy dining area with her hands full of food, drink and a purse and because her attention was focused on making it to the exit and back to her car where her child had been waiting for 30 minutes. “If the facts of Barentine establish ‘some evidence’ that Barentine exercised reasonable care for his own safety, then clearly [Axom’s assertions constitute] a much stronger case of such evidence.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291, supra. Consequently, the trial court erred in granting summary judgment in favor of Wendy’s. See Grovner v. Winn Dixie Stores, 218 Ga. App. 495 (462 SE2d 427). Also see Van Dyke v. Emro Mtkg. Co., 211 Ga. App. 744 (440 SE2d 469), where this Court reversed summary judgment even though there was evidence that the plaintiff had prior knowledge of the hazard which allegedly caused his fall.

Judgment reversed.

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

Andrews, Judge,

dissenting.

There is no evidence that either Wendy’s or Axom had actual knowledge of the puddle of water on the floor. Assuming the presence of the Wendy’s employee near the puddle of water created a question of fact as to whether Wendy’s had constructive knowledge of the hazard, the dispositive issue is whether Axom also had constructive knowledge of the puddle of water.

Even if Wendy’s had constructive knowledge, the defendant was still entitled to summary judgment in its favor if Axom should have discovered the puddle and avoided it, unless Wendy’s prevented her from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). In other words, Axom is deemed to have constructive knowledge of the hazard if she should have discovered and avoided it by the exercise of ordinary care but failed to do so.

In determining whether Axom should have discovered and avoided the puddle of water, the rule as set forth in Alterman Foods, supra, requires that she must “exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the [store’s] negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” (Citations and punctuation omitted.) Alterman Foods, supra at 623. In applying this rule, we have held on numerous occasions that “[s]ummary judgment is appropriate in situations where the hazardous condition was visible to the plaintiff, had the plaintiff looked.” J. H. Harvey Co. v. Kinchen, 213 Ga. App. 868, 869 (446 SE2d 218) (1994); Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992); Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994); Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (443 SE2d 871) (1994); Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994). Here, Axom admitted in her deposition that the puddle of water was not difficult to see and that if she had looked down she could have seen it.

In reversing the trial court’s award of summary judgment in favor of Wendy’s, the majority concludes there was evidence showing that Axom did not see the puddle of water “because it was transparent, because she was maneuvering through a busy dining area with her hands full of food, drink and a purse and because her attention was focused on making it to the exit and back to her car where her child had been waiting for 30 minutes.” There is no support in the record for the conclusion that Axom did not or could not see the puddle because it was transparent. By her own admission, she did not see it because she did not look down at the floor. Axom did not claim she was prevented from discovering the puddle by any distraction created by Wendy’s. The fact that she was walking with her food purchases back to her car is neither evidence of a distraction created by Wendy’s nor evidence that she was exercising reasonable care for her own safety.

Because Axom admitted she could have seen the puddle had she looked, the evidence demands a finding that Axom’s failure to exercise ordinary care for her own safety was the proximate cause of her injury. The trial court correctly granted summary judgment in favor of Wendy’s.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.

Smith, Judge,

dissenting.

While I dissent from the majority opinion, I write separately to point out the majority’s misconstruction of the Georgia Supreme Court’s opinion in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994). See special concurrence in Baker v. Winn Dixie Stores, 219 Ga. App. 513 (465 SE2d 710) (1995).

I am authorized to state that Judge Johnson joins in this dissent.

On Motion for Reconsideration.

On motion for reconsideration, Wendy’s contends we have misconstrued the Supreme Court’s decision in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485), as Barentine is limited to its facts because it is based upon a narrow offshoot of the distraction theory. The problem with this contention is that the Supreme Court of Georgia does not even mention the distraction theory in Barentine, instead relying on the specific circumstances of Barentine’s fall in determining whether an average shopper, in the same or similar circumstances, should have been looking for and seen the hazard which allegedly caused Barentine to fall, i.e., that genuine issues of material fact remain as to whether “Barentine exercised reasonable care for his own safety in approaching the check-out counter. See Food Giant [v. Cooke, 186 Ga. App. 253, 257 (2) (366 SE2d 781)].” Barentine v. Kroger Co., 264 Ga. 224, 225, supra. In the case sub judice, we follow this line of analysis by holding that, under the specific circumstances now presented on summary judgment, genuine issues of material fact remain as to whether the average fast-food restaurant patron, under the same or similar circumstances faced by Vetrina Axom at the time of her fall, should have been looking for and seen the hazard which allegedly caused Axom’s fall. See Judge Blackburn’s special concurrence in McDonald’s Restaurant &c. v. Banks, 219 Ga. App. 667 (466 SE2d 240) (1995).

Next, Wendy’s contends that this Court inaccurately conveys that the water hazard on the floor was “transparent,” pointing out that Vetrina Axom did not testify (in her deposition) that the water hazard was “transparent” and that she only alleged in her complaint that the water she slipped in was “colorless.” In the case sub judice, Wendy’s had the burden, as the moving party on summary judgment, to pierce Axom’s claim that the water hazard was “colorless.” Wendy’s, however, did not seek to pierce this allegation by questioning Axom (during her deposition) about the specific coloration of the allegedly “colorless” water. Accordingly, since an appellate court is bound to construe the evidence with every reasonable inference and presumption in favor of the non-moving party’s claims, Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245), we stand by our characterization that the allegedly “colorless” water hazard was “transparent.” In other words, we cannot say that Vetrina Axom’s testimony that she could have seen the water hazard had she been looking down (over her purse and the food bag and drink she had just purchased from Wendy’s) negates our statement that the allegedly “colorless” water was “transparent.”

Decided December 4, 1995

Reconsideration denied December 20, 1995

Bush, Crowley, Leverett & Leggett, Michelle L. Schieber, Charles R. Free, for appellant.

Jones, Cork & Miller, Carr G. Dodson, H. J. Strickland, Jr., W. Kerry Howell, Shawn M. Story, for appellee.

Motion for reconsideration denied.

       Wendy’s attempted to prove a lack of constructive knowledge by showing that a customary inspection and cleaning program was in place and had been complied with on the day of Axom’s fall. See Foodmax v. Terry, 210 Ga. App. 511 (1), 512, supra. This evidence was compromised, however, via the affidavit of Laquita Nolley, who deposed that “[f]rom the time [she] entered the building which was well before 5:00 p.m. and until just before 6:00 p.m., when Vetrina left the building, [she] did not personally see the manager and assistant manager make any kind of inspection of the floor- area during that period of time.”