author: Birdsong, Presiding Judge. Beasley, Judge, Blackburn, Judge, Eldridge, Judge,

text:
    A97A0740.
    ADAMS v. SEARS, ROEBUCK & COMPANY et al.
    (490 SE2d 150)
   Birdsong, Presiding Judge.

Celia Faye Adams appeals the grant of summary judgment to Sears, Roebuck & Company and the manager of a Sears’ store, Leon Washington. Adams sought damages from Sears and Washington for injuries she allegedly received in a slip and fall in a Sears’ store that Washington managed.'

Adams’ verified complaint alleged that while she was walking in the store and looking at the merchandise, she stepped on a store hanger, lost her balance, and fell to the floor injuring her knee, and the complaint further alleged that the defendants failed to inspect and maintain the store where she fell. After Sears and Washington filed verified answers denying liability, they moved for summary judgment contending that Washington was not liable because he neither owned nor occupied the store, that Sears was not liable because it had no knowledge, either actual or constructive, that the hanger was on the floor, and that Sears was not liable because Adams failed to exercise ordinary care for her own safety.

In support of the motion, Sears and Washington relied upon an affidavit from Washington stating that he was the general manager of this Sears’ store, but he did not have an ownership interest in it, and also an affidavit from another Sears’ employee. The employee’s affidavit stated that she was working the day of Adams’ fall, that her regular duties consisted of constantly straightening the sales floor and this duty includes picking up objects and clothing from the floor and constantly monitoring the sales floor. The affidavit stated that she did not see Adams fall, but she heard a noise, and when she rushed over, she saw Adams had fallen. The employee’s affidavit further stated that the employee was in the area where Adams fell 15 to 20 minutes before she fell and the employee did not see any objects, including a hanger or clothing, on the floor.

Adams’ response to the motion for summary judgment asserted that genuine issues of material fact remained for trial. The response was supported by affidavits from Adams and a friend who was shopping with her that day. Adams’ affidavit stated as she stood near a dress rack, she stepped on a plastic hanger that was on the floor. At the time she stepped on the hanger, she was looking at the dresses on the rack, and she did not see the hanger which caused her fall until after she fell. The affidavit from Adams’ friend stated that while she was shopping with Adams, she saw Adams lose her balance and fall and that after Adams fell, she saw a hanger on the floor near Adams’ feet. Nothing in the evidence submitted by Adams, however, showed or allowed any inference of how long the hanger may have been on the floor before Adams fell.

Although raised in the motion for summary judgment, the trial court pretermitted the issue of actual or constructive knowledge of the hanger on the floor and granted summary judgment to Sears because the evidence did not create a jury issue on whether Adams exercised ordinary care for her own safety. The trial court also granted summary judgment to Washington because he was not an owner or occupier of the premises.

This appeal followed. Adams contends the trial court erred by granting summary judgment because genuine issues of material fact existed on whether she exercised due care before she fell, whether Sears failed to exercise ordinary care for Adams’ safety, and whether Washington is liable to Adams for her injuries. Held:

1. When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432); Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535). Further, the standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). On motions for summary judgment, the court cannot resolve the facts or reconcile the issues (Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49)), but it is only where the contradictions by witnesses are to matters relevant and material to the issues that it is error to grant a motion for summary judgment. Raven v. Dodd’s Auto Sales & Svc., 117 Ga. App. 416, 422 (160 SE2d 633). Further, it is the duty of each party at summary judgment to present her case in full or risk judgment going against her (Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173)), and on appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746).

2. Adams’ contention that Washington, the store manager, is personally liable for her injuries is without merit. Regardless of whether Sears might be liable in this case, because Washington was neither an “owner nor occupier” of the Sears’ store, he cannot be held liable under OCGA § 51-3-1, as a matter of law, and Adams has asserted no other basis for imposing personal liability upon him.

3. The standards which must be met to establish liability on the part of a proprietor in slip and fall cases are set forth in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 826 (482 SE2d 720). “[T]o state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [she] 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, supra at 623.

“Of course, merely showing that the plaintiff fell establishes nothing. Proof of nothing more than the occurrence of plaintiff’s fall is insufficient to establish defendant’s negligence. To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.” (Citations and punctuation omitted.) Coffey v. Wal-Mart, supra at 828 (2).

In this case, Adams’ proof amounts to nothing more than she slipped and fell on the hanger while shopping at Sears. This is not sufficient to satisfy either prong of the test established in Alterman Foods. There is no evidence showing, nor any evidence from which it can be inferred, that Sears had actual or constructive knowledge of the hanger. Therefore, summary judgment could have been properly granted on the first prong of Alterman Foods.

Also, no evidence shows that for any reason attributable to Sears Adams was prevented from knowing of the hanger. Her only excuse for not seeing the hanger is that she was distracted by looking at the dresses. As the trial court correctly pointed out, this is not a valid reason. Harper v. Kroger Co., 212 Ga. App. 570, 571 (443 SE2d 7), citing Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378-379 (124 SE2d 688). Moreover, even if there were some question about the propriety of granting summary judgment on this second prong of the Alterman Foods standards, there is no evidence showing that Sears had actual or constructive knowledge that the hanger was on the floor, and consequently the grant of summary judgment could be affirmed properly on that ground. Malaga Mgmt. Co. v. John Deere Co., supra. Adams simply failed to satisfy her obligations as a respondent to a motion for summary judgment under Lau’s Corp. v. Haskins, supra. Accordingly, the trial court did not err by granting summary judgment to Sears.

4. Although the dissent seeks to avoid the reach of Alterman Foods v. Ligon, this cannot be done. “The Supreme Court of Georgia has not rejected or revised Alterman Foods. Therefore, the Alterman Foods standards are binding on this Court even though some may believe there is a better concept for allocating the burdens on the parties in these cases. ‘The decisions of the Supreme Court shall bind all other courts as precedents.’ Ga. Const. 1983, Art. VI, Sec. VI, Par. VI; Coffey v. Wal-Mart, [supra at 827].” Hartley v. Macon Bacon Tune, 227 Ga. App. 679, 682 (4) (490 SE2d 403) (1997).

5. Further, the dissent’s attempt to deem the guidance on foreign substance cases in Alterman Foods v. Ligon as mere dicta has recently been rejected by this Court. Hartley v. Macon Bacon Tune, supra. Consequently, the principles established in Alterman Foods v. Ligon cannot be swept aside, and Alterman Foods v. Ligon remains the controlling precedent in the area of slip and fall cases. Hartley v. Macon Bacon Tune, supra.

6. In the same manner, the effort to limit Alterman Foods v. Ligon by establishing new categories of foreign substance slip and fall cases and then redefining what must be established to prove a cause of action in each of them must also fail. Hartley v. Macon Bacon Tune, supra. The classifications the dissent proposes all fall within the categories considered in Alterman Foods. “In the majority of the so-called ‘slip and fall’ cases the plaintiff alleges either that he slipped on a foreign substance — grit, vegetable leaves, trash, objects which have fallen from store shelves, etc. — on defendant’s floor, or that defendant’s floor has been made dangerously slippery by waxing, oiling or otherwise treating it.” Id. at 622. Thus, because the Supreme Court failed to list every conceivable foreign substance which could possibly find its way to a floor does not mean that it intended for new standards of proof to be established for other substances that, while not listed, are plainly substances which were not placed on the floor intentionally by the proprietor and, consequently, are foreign substances within the meaning of Alterman Foods v. Ligon. See Hartley v. Macon Bacon Tune, supra.

7. Further, review of the standards proposed by the dissent shows that their effect would require proprietors to patrol constantly their premises and would, in effect, make them insurers of their customers’ safety, regardless of how well the premises were maintained. That is not the law in this state. Alterman Foods v. Ligon, supra at 624;Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641); Key v. J. C. Penney Co., 165 Ga. App. 176 (299 SE2d 895).

8. “This Court also cannot do away with the obligation of plaintiffs to make use of all their senses to discover and avoid those things that might hurt them. Alterman Foods, supra at 623. To say that the trial court could not infer that [Adams] would not avoid an obvious danger relies upon the concept that if [Adams] had bothered to look, had seen the [hanger she] claims was on the floor, and had stepped [on] it anyway, [she] should still recover. Under this theory, one apparently must assume that someone facing an apparent danger would intentionally disregard it and that a proprietor must somehow take action to protect these customers from themselves. This is not our law, and it is contrary to human nature as well as Alterman Foods and the doctrine of assumption of the risk.” Hartley v. Macon Bacon Tune, supra at 683-684. The dissent’s concept (which is not supported by citation of authority) that a movant for summary judgment is never entitled to the benefit of an inference is contrary to our law. Id. Although it is true that the party responding to the motion must be given the benefit of all reasonable doubts and the construction of the evidence and all inferences and conclusions therefrom (Lau’s Corp., supra; Moore v. Goldome Credit Corp., supra), this does not mean that a movant for summary judgment is never entitled to receive the benefit of an inference. Moreover, if this were true, a grant of summary judgment could never be based upon circumstantial evidence, and such a concept is surely contrary to the statement in Lau’s Corp. that “summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp., supra at 495 (4). Although the non-moving party is entitled to the benefit of all reasonable inferences to be drawn from the facts, sometimes the only permissible inference is contrary to the interests of the nonmoving party, and in such cases summary judgment for the movant may be authorized.

9. Moreover, the dissent’s discussion about the burdens on the parties was recently rejected by this Court in Hartley v. Macon Bacon Tune, supra. In that appeal as well as this one, the dissent has confused the burden on the plaintiff in a foreign substance slip and fall case under Alterman Foods with the affirmative defenses of contributory or comparative negligence or assumption of the risk. They are not the same thing. Id. Therefore, requiring that plaintiffs carry their burden on these elements is not the same as requiring them to disprove affirmative defenses.

Accordingly, the trial court did not err by granting summary judgment to Sears, Roebuck & Company and Leon Washington in this case.

Judgment affirmed.

Andrews, C. J., Johnson and Smith, JJ., concur. Ruffin, J., concurs and concurs specially. Pope, P. J., Beasley and Blackburn, JJ., concur specially. Eldridge, J, dissents. McMurray, P. J., dissents without opinion.

Beasley, Judge,

concurring specially.

I concur and note the following.

Appellant admits in her brief that “[t]he [alleged] hanger was concealed by the dresses on the rack and no customer or sales clerk could have seen the hanger unless they looked under the dresses on the rack.” Since her complaint is that defendants “negligently failed to inspect and maintain the area of the store where the plaintiff fell,” it is dependent on a legal duty of the proprietor to constantly look under clothing hanging on racks to assure that no objects such as hangers had been placed or had fallen there which might trip an invitee who placed a foot under the hanging clothes. Appellant cites no authority or analogous case which would cover such a theory.

In addition, two significant procedural deficiencies should be pointed out. One is that although plaintiff’s deposition was taken, it is not a part of the record on appeal nor was it part of the evidence considered by the trial court. The trial court pointed out in its summary judgment order that the deposition had never been filed so it could not be considered. Defendants attempted to file it thereafter and subsequently moved the court to vacate its order and reconsider the motion for summary judgment in light of plaintiff’s deposition. But plaintiff filed her notice of appeal, depriving the trial court of jurisdiction to rule on the motion, and the court acknowledged this.

Consequently, both the motion for summary judgment and this appeal proceed on the affidavits of plaintiff and her shopping companion and on the affidavits of the sales associate and the manager, a defendant. Appellant refers to her deposition in her brief and also to the manager’s response to interrogatories, but neither document is before us.

The second procedural deficiency is the appellant’s total failure to make specific reference to the record in her brief. She has failed to comply with the clear rule requiring it. Court of Appeals Rule 27 (c) (3) (i). Thus we must hunt the dark forest of the record for the pinpoint shafts of light she relies on. “That vexing and vexatious search for error through an appellate record where no citation is in appellant’s brief is not the function of appellate judges.” Studard v. Dept. of Transp., 219 Ga. App. 643, 646 (3) (466 SE2d 236) (1995).

I am authorized to state that Judge Ruffin joins in this special concurrence.

Blackburn, Judge,

concurring specially.

I concur specially, because I do not agree with everything that is said in the majority opinion. Its result is appropriate however under the past holdings of this Court and our Supreme Court. I sympathize with the dissent’s dissatisfaction and frustration with the present state of premises liability analysis, which sentiments I expressed in my dissent in Blake v. Kroger Co., 224 Ga. App. 140 (480 SE2d 199) (1996). It is clear, however, that under the binding precedent of Supreme Court rulings, this Court is without authority to modify the law or create new rules of analysis, which are inconsistent therewith. Neither does this Court have the authority to overrule the Supreme Court as the dissent would effectively do. This is true without regard to the merits of the suggested changes. Only the Supreme Court or the General Assembly of Georgia has the authority to change the law of premises liability under the present state of the law.

I am authorized to state that Presiding Judge Pope joins in this special concurrence.

Eldridge, Judge,

dissenting.

I respectfully dissent except as to the division finding Leon Washington not personally liable. Appellant is constitutionally entitled to have her case decided by a jury rather than by the trial court and by this Court. Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a); OCGA § 9-11-56; Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974); Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393) (1969); Butterworth v. Pettitt, 223 Ga. 355 (155 SE2d 20) (1967). Because appellee failed to carry the burden of proof on summary judgment, appellant is entitled to a jury trial; therefore, I must respectfully dissent.

Since Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), this Court has followed dicta in that opinion to create an extensive body of decisions that radically departed from the jurisprudence of tort law and created a unique power in the trial courts to grant summary judgment in slip and fall cases. See generally Blake v. Kroger Co., 224 Ga. App. 140, 153-154 (480 SE2d 199) (1996) (Blackburn, J., dissenting), for a similar, compelling discussion of the consequences of this Court’s consistent and troubling misapplication of the principles of Alterman Foods and Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), to slip and fall cases, particularly those in which the facts fall outside the holding of Alterman Foods. This has led to the legal consequence that, if a plaintiff failed to look where his or her foot was placed, whether such vision was obscured or totally blocked, then such failure to see a hidden danger became contributory negligence, which is traditionally an affirmative defense. In creating such rule, the courts failed to require proof of any other elements: (1) opportunity to see the danger, (2) appreciation of the danger, (3) opportunity to avoid the danger, (4) proximate cause, and (5) consideration of the mitigating doctrine of comparative negligence. Unfortunately, Robinson v. Kroger Co., 222 Ga. App. 711 (476 SE2d 29) (1996), is but the logical progression of such method of analysis and a misapplication of Alterman Foods.

Further, this problem of analysis has been compounded by a misapplication of Lau’s Corp., because in many recent slip and fall cases, unlike in Lau’s Corp., the respondent is not given the benefit of all reasonable, favorable inferences, or the converse: having no unfavorable inferences of fact made against the respondent. Moreover, under this misapplication of Lau’s Corp., there is no burden placed upon the movant, even as to issues such as contributory negligence or assumption of the risk, upon which issues the defendant does have the burden of proof at trial. Lau’s Corp. held that a movant could show the absence of an essential element in the respondent’s case, not only by presenting evidence which negates or disproves such alleged element, but also by showing that there was no evidence that the respondent could produce to demonstrate the existence of such element.

Much of the majority’s analysis is based upon the misapplication of dicta from Summer-Minter v. Giordano, supra at 604, which states, “It is thus seen that it is the duty of each party at the hearing on the motion for summary judgment to present [her entire] case in full.” However, this statement is taken out of context; the Supreme Court stated immediately preceding such quote that OCGA § 9-11-56 (e) required, after the burden shifted upon the movant piercing the respondent’s complaint, that the respondent come forward with whatever evidence was necessary to survive summary judgment, because the plaintiff could not relitigate by amendment of the complaint on such issue prior to remand and then submitting additional evidence. The respondent has no burden of proof unless and until the movant successfully pierces the respondent’s complaint by first discharging its burden of proof. If the movant also has the burden of proof at trial, as with an affirmative defense, then the burden of proof on summary judgment does not shift to the respondent, only the burden of production, i.e., to come forward with sufficient evidence to create a material issue of fact as to the essential elements of movant’s affirmative defense of contributory negligence or assumption of the risk, because plaintiff’s complaint is not pierced by an affirmative defense; the defendant has proven each of the elements of a prima facie affirmative defense asserted as an affirmative defense in the answer. In slip and fall cases, the majority would deem that proof of contributory negligence for purposes of summary judgment is complete with the plaintiff admitting that she did not look to see where her foot was placed immediately prior to the fall; the majority would not require the additional factually supported elements of: (1) opportunity to avoid the danger, (2) appreciation of the danger, and (3) proximate cause, which elements must be supported by evidence before the trial court on summary judgment as part of establishing the prima facie affirmative defense. Under tort law, if proof of such elements of contributory negligence is required, then the trial court, as well as this Court, has found the necessary elements on summary judgment by making negative inferences against the plaintiff and in favor of the defendant from proof of the plaintiff’s failure to look. Clearly, proof of failure to look, alone, is insufficient to establish prima facie all the elements of contributory negligence when such burden of proof always remains on the defendant on summary judgment or trial.

“Summary judgment is appropriate [in slip and fall cases] when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant [plaintiff], concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp.[, supra].” Jenkins v. Bi-Lo, 223 Ga. App. 735 (479 SE2d 14) (1996).

As a business property owner/occupier, appellees had a duty to exercise ordinary care in keeping the premises safe for invitees, such as the appellant. OCGA § 51-3-1. “This includes a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. The true ground of liability in such a relationship is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm,” where the owner/occupier did not create the hazard through active negligence. (Citations and punctuation omitted.) Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992) and citations therein. Although a property owner is not an insurer of an invitee’s safety, they are required to exercise “such diligence toward making the premises safe as the ordinarily prudent person in such matters is accustomed to use.” Id.; see also Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984); Pound v. Augusta Nat., 158 Ga. App. 166, 167 (279 SE2d 342) (1981). However, there is no duty for the owner to continuously patrol the floor when there are no conditions making the premises unusually dangerous. Winn-Dixie Stores v. Hardy, 138 Ga. App. 342 (226 SE2d 142) (1976).

Further, if the defendant asserts that the plaintiff/invitee’s own negligence caused the injury, they may be entitled to summary judgment. However, issues of material fact may be presented and “the affirmative defenses of contributory and comparative negligence and assumption of the risk require a defendant to prove that a plaintiffs conduct was unreasonable under the circumstances or that plaintiff knowingly encountered a known danger with appreciation thereof. Thus, jury questions are often presented as to whether the affirmative defenses have been established.” (Citation and punctuation omitted; emphasis in original.) Continental Research Corp. v. Reeves, 204 Ga. App. 120, 127 (3) (419 SE2d 48) (1992).

Notably, this is not the posture adopted by this Court from the Supreme Court of Georgia’s ruling in Alterman Foods, supra at 623. In Alterman Foods, the Supreme Court considered a slip and fall case involving an alleged negligently maintained floor. After the defendant pierced the plaintiff’s pleadings by proving that the methods used to care for the floor did not result in a slippery surface, the Court looked to the plaintiff’s evidence and concluded that the plaintiff had failed to prove negligence on the part of the defendant; the issue of the plaintiff’s own negligence was not addressed in the holding.

However, in dicta, the Supreme Court noted that “in order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [the plaintiff] 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.” (Emphasis supplied.) Alterman Foods, supra at 623; see also Baker v. Winn Dixie Stores, 219 Ga. App. 513, 514 (465 SE2d 710) (1995). In essence, the Court shifted the burden to the plaintiff to prove that they were exercising ordinary care even though, in other areas of tort law, the burden is on the defendant to prove, as an affirmative defense, that the plaintiff was not using ordinary care in avoiding the defendant’s own negligence or a patent danger. See, e.g., Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 779 (386 SE2d 696) (1989); Meacham v. Barber, 183 Ga. App. 533, 535-536 (2) (359 SE2d 424) (1987). Notably, Alterman Foods did not overrule this longstanding principle, and a careful analysis of the opinion requires that it not be extended beyond the facts presented and applied to circumstances in which both the negligence of the owner/occupier and the plaintiff are based upon circumstantial evidence regarding what a reasonable inspection would reveal to each party, in contrast to what they actually knew. The plaintiff will be barred from recovery when the hazard is patent, open, and obvious, so that he or she has a duty to avoid the hazard or assume a known risk. See Pound v. Augusta Nat., supra at 167-168; Hunt v. Thomasville Baseball Co., 80 Ga. App. 572, 573 (56 SE2d 828) (1949).

Notably, there are many different categories of slip and fall cases, some of which are distinguishable enough to justify a different analysis from that offered in Alterman Foods. In fact, five different slip and fall fact situations have emerged, with some overlap between the categories. These categories include a slippery surface due to a (1) negligently maintained floor surface, see, e.g., Alterman Foods, supra, Hall v. Cracker Barrel Old Country Store, 223 Ga. App. 88 (476 SE2d 789) (1996), DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811 (278 SE2d 712) (1981); (2) design or construction defect, see generally Barksdale v. Nuwar, supra (deck collapse), Pinkney v. VMS Realty, 189 Ga. App. 177 (375 SE2d 90) (1988) (unmarked ramp); (3) foreign substance, such as mud, rain water, etc., see, e.g., Haire v. City of Macon, 200 Ga. App. 744 (409 SE2d 670) (1991) (mud on ramp outside of building); (4) indigenous substance, such as cleaning solutions, waste or spills from food or other products, see, e.g., Jenkins v. Bi-Lo, supra, Robinson v. Kroger Co., supra, Baker v. Winn Dixie Stores, supra (green beans), J. H. Harvey Co. v. Johnson, 211 Ga. App. 809 (440 SE2d 548) (1994), Foodmax v. Terry, 210 Ga. App. 511 (436 SE2d 725) (1993), Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362) (1992), Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991), Winn-Dixie Stores v. Hardy, supra; and (5) misplaced, discarded, or fallen merchandise, product displays, or other merchant instrumentalities, such as hangers, display components, product boxes, wrapping materials, etc., see, e.g., Butler v. Lanier Park &c. Hosp., 220 Ga. App. 386 (469 SE2d 475) (1996) (syringe cap), Edwards v. Wal-Mart Stores, 215 Ga. App. 336 (449 SE2d 613) (1994) (hangers). Since each category is distinguishable as to whether the potential hazard is foreseeable by the owner/occupier, each presents a different analysis in considering whether the defendant’s efforts are reasonable under the circumstances, as well as whether the plaintiff could discover and recognize the risk and act accordingly for his or her own safety once the risk is known and should be appreciated. The Alterman Foods analysis may function quite well regarding negligent maintenance cases, even though the Supreme Court never reached the question of the plaintiffs own negligence. Alterman Foods also provides guidance in foreign and indigenous substance cases, where the presence of the substance is not previously known to exist by either plaintiff or defendant. In these cases, the defendant’s superior knowledge of the problem must be proven by the plaintiff in order to recover, and the defendant can disprove any knowledge by showing simply that it used reasonable inspection procedures to identify and remove the slippery substances. Where, however, the defendant has a duty to foresee a recurring danger or has voluntarily assumed a duty to inspect for a recurring danger, the duty to foresee by the owner/occupier does not require actual or constructive notice of such danger when it, in fact, recurs.

However, in the case sub judice, we are faced with a hazard presented by a necessary instrumentality of the merchant’s business, a clothes hanger, which causes a hazard that constantly recurs at predictable times and circumstances. Such hangers, unfortunately, are prone to being placed upon or falling to the floor, a foreseeable situation that appellee recognized in adopting an inspection procedure that explicitly requires employees to “constantly” look for fallen hangers and clothes. Recognition of the probability that these objects could create a hazard for customers supports a finding that such hazards are foreseeable, and therein lies the essential difference from cases involving negligent maintenance, foreign substances, and to a lesser extent, indigenous substances: there is no need for notice of the danger to create a duty of care, since the owner/occupier is already under a duty to guard against such a recurring, foreseeable danger.

Further, the situation in the case sub judice is more analogous to trip and fall cases, including those involving hazards which are caused by the active negligence of the owner/occupier, than those cases involving a slip and fall. See, e.g., Shubert v. Marriott Corp., 217 Ga. App. 184 (456 SE2d 680) (1995) (protruding cart); Riggs v. Great A & P Tea Co., 205 Ga. App. 608 (423 SE2d 8) (1992) (box in aisle); Wal-Mart Stores v. Hester, 201 Ga. App. 478 (411 SE2d 507) (1991) (box in aisle); Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427 (263 SE2d 171) (1979) (protruding display table). Appellant asserts that she slipped and fell after stepping on a clothes hanger; it would be inherently unfair to deny appellant the opportunity to recover for her slip and fall by granting appellee’s motion for summary judgment, and yet permit appellant to go to trial if she instead had tripped, an equally likely possibility.

Recognizing that an Alterman Foods analysis is not appropriate here, we instead must look to the roots of premises liability to develop the factors in an appropriate analysis, one that is strictly limited to slip and fall cases involving merchandise, packaging materials, displays, and other marketing instrumentalities. To assert a cause of action under such an analysis, a plaintiff must present evidence to prove (1) that a hazard or danger existed; (2) that the defendant’s acts or omissions caused the hazard; (3) that, if not, the defendant had actual or constructive knowledge of the alleged hazard caused by others; (4) that the defendant was negligent in inspecting or preventing such hazard from occurring or in removing the hazard once it occurred; and (5) that the hazard caused the plaintiff’s injury.

In proving actual knowledge, the plaintiff could present evidence of active negligence by the owner/occupier in placing or abandoning materiáls where they may create a hazard for invitees, such as leaving boxes .of trash bags in a store aisle. See Wal-Mart Stores v. Hester, supra; see also Riggs v. Great A & P Tea Co., supra; Sears, Roebuck & Co. v. Chandler, supra (placing an object in the aisle equals superior knowledge). Absent actual knowledge of a potential hazard, the plaintiff can prove the defendant’s constructive knowledge of a hazard caused by others by establishing that the hazard complained of is of such regular occurrence that it is foreseeable, such as hangers falling from a clothes rack or being placed on the floor in a department store. Actual knowledge may also be shown by circumstantial evidence of the creation of the hazard by the owner/occupier when the instrumentality at issue is under the defendant’s control, such as boxes of unshelved merchandise. Where, as here, the owner/occupier has chosen to make regular timely inspections, then it has assumed both the duty of making reasonable inspections for hazards created by others and the duty to foresee clothes hangers being on the floor immediately after customers have looked at or removed clothes in the area.

After proving that the defendant possessed actual or constructive knowledge about a potential hazard, the plaintiff must then prove that the defendant was negligent in preventing the hazard, i.e., by failing to do what a reasonably prudent employee/salesperson would do to prevent foreseeable hazards. Such foreseeability is greater than in foreign substance cases decided under Alterman Foods, where the potential hazards occur less frequently, are often caused by the acts of others, are more diverse, and are, therefore, less foreseeable. This is in contrast to hazards, such as in the case sub judice, which frequently recur under predictable circumstances involving customers and merchant instrumentalities. A reasonable, prudent salesperson should foresee that a hanger may fall or be placed on the floor by the customers who are going through the clothes racks, trying on or purchasing items of clothing.

The defendant may respond to allegations of negligence by presenting evidence that the procedures were reasonable and that they adhered to a reasonable, consistent inspection schedule. See Drake v. Kroger Co., 213 Ga. App. 72 (443 SE2d 698) (1994); J. H. Harvey Co. v. Johnson, supra; Morris v. Ryan’s Family Steak Houses, supra. This fulfills a merchant’s duty to protect invitees from “dangers which are foreseeable from the arrangement and use of the premises,” but the existence of which is not actually known. Begin v. Ga. Championship Wrestling, supra at 294, citing Prosser, Law of Torts (4th ed.), p. 393, § 61. Evidence of a reasonable inspection procedure may discredit an allegation that the defendant had constructive knowledge of the existence of a specific hazard. J. H. Harvey Co. v. Johnson, supra. However, since the reasonableness of an inspection procedure depends on all of the circumstances including the likelihood that an instrumentality under the control of the defendant would create a hazard, the question of whether the defendant negligently failed to inspect an area and thereby prevent a hazard from occurring will usually be a jury issue. See Edwards v. Wal-Mart Stores, supra; Smith v. Wal-Mart Stores, supra; DeKalb County Hosp. Auth. v. Theofanidis, supra; see also Blake v. Kroger Co., supra at 155 (Blackburn, J., dissenting).

Finally, the plaintiff must present evidence that the defendant’s negligence was the proximate cause of the injury. After the plaintiff’s prima facie case is established, the defendant may come forward with evidence intended to disprove the plaintiff’s case, such as adherence to a reasonable inspection procedure. At this point, the burden shifts to the defendant to establish as an affirmative defense that the plaintiff’s injury was caused by the plaintiff’s own negligence, even if the hazard was present and the defendant had knowledge of its existence but failed to act, if the defendant intends to rely on the defenses of contributory negligence, comparative negligence, or assumption of the risk. Stiltjes v. Ridco Exterminating Co., supra at 779; Meacham v. Barber, supra at 535-536.

In differentiating these defenses, it is important to note that “there are two classifications of negligence as to the plaintiff, contributory and comparative. Contributory negligence is of two separable, distinct defenses: first the plaintiff must at all times use ordinary care for his own safety; that is, he must not by his own negligence (or consent) proximately cause his own injuries [by encountering an open and obvious hazard]; and second, the plaintiff must use ordinary care to avoid the consequences of the defendant’s negligence when it is apparent or when in the exercise of ordinary care it should become apparent. Either or both of these defenses go. in bar of the right of recovery. Comparative negligence by the plaintiff is that negligence which joins with the negligence of the defendant in proximately causing the injuries of the plaintiff and goes in reduction of the amount of recovery in proportion that the negligence of the plaintiff compares with that of the defendant, resulting, by reduction, in a bar of recovery when the negligence of the plaintiff is equal to or greater than that of the defendant. Comparative negligence is applicable only when the jury has not found either the negligence of the plaintiff or that of the defendant to be the sole proximate cause.” (Citations omitted; emphasis in original.) Whatley v. Henry, 65 Ga. App. 668, 674 (16 SE2d 214) (1941); see also Carrandi v. Sanders, 188 Ga. App. 562 (373 SE2d 661) (1988) (clarifying the avoidance doctrine).

One critical aspect of this analysis is that evidence of the plaintiffs own negligence no longer serves as a bar to recovery unless it is established that the plaintiffs negligence was the sole proximate cause of the injury. Under Alterman Foods, a finding that the plaintiff was negligent, even in the slightest degree, acts as a total bar to recovery by absolving the defendant of liability without consideration of the effect of the defendant’s own negligence as a concurrent proximate cause, thereby treating plaintiff’s negligence as the supervening proximate cause. As a result, it is almost impossible for a plaintiff to survive summary judgment under the Alterman Foods analysis.

Under Alterman Foods, the invitee must use “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; emphasis supplied.) Alterman Foods, supra at 623. The pre-Alterman Foods standard of care presents the standard of reasonableness for the type of case under consideration. Such standard of ordinary care recognizes that the owner/occupier has a duty to exercise ordinary care in keeping the premises safe for invitees, “including] a duty to anticipate the negligence of others which is usual or likely to happen,” and that the invitee, who “ ‘may rely upon the discharge of this duty[,] ... is not necessarily, and as a matter of law, guilty of negligence in failing to discover the existence of a patent defect in the premises which renders it unsafe for persons coming upon the premises.’ Cooper v. Anderson, 96 Ga. App. 800, 810 (101 SE2d 770) [(1957)].” Winn-Dixie Stores v. Hardy, supra at 343-344; see also Begin v. Ga. Champion ship Wrestling, supra. “It is [the invitee’s] duty to exercise ordinary care to observe such obstructions as an ordinarily prudent person would, under normal conditions, expect in the aisles of the place of business in which he is an invitee. [Cit.] Looking continuously, without interruption, for defects in the premises is not required. [Cit.] The invitee is not bound to avoid tripping or stumbling over articles which are not usually obstructing aisles of a store, and which in the exercise of ordinary care he did not observe. Neither is he barred from recovery simply because by extreme care on his part it would have been possible to have discovered the article or obstruction left in the aisle customarily used by patrons. [Cit.]” Sears, Roebuck & Co. v. Chandler, supra at 428; see also Haire v. City of Macon, supra. Under this ordinary care standard, it is reasonable to expect a customer to alternately scan the floor while also looking toward the merchandise, the raison d’étre for the customer’s presence in the store. This is not a “distraction” defense, but a realistic and reasonable appraisal of the plaintiff’s duty to exercise care for his own safety in a retail setting. Compare Wal-Mart Stores v. Hester, supra; see also Foodmax v. Terry, supra; Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473 (249 SE2d 276) (1978). To bar recovery by the plaintiff on summary adjudication, the hazard must be so open and obvious that one exercising reasonable care would see the hazard, recognize the danger, and have the opportunity to avoid the danger. If the hazard is not shown to be open and obvious at all times by competent evidence, then a jury question exists as to when the plaintiff could have discovered the hazard and whether it could then be avoided.

However, if the defendant presents evidence that supports a contributory or comparative negligence defense, the plaintiff, in order to survive a defendant’s motion for summary judgment, cannot rely on the pleadings but must present evidence that he acted reasonably under the circumstances; all facts and inferences are to be construed in the light most favorable to the non-movant/plaintiff. Lau’s Corp. v. Haskins, supra at 491. “Whether the invitee customer might have discovered the article or obstruction . . . and avoided the injury to himself by the exercise of ordinary care, must be determined in the light of all the attendant circumstances [cit.], and is a question for the jury. [Cit.]” (Emphasis supplied.) Sears, Roebuck & Co. v. Chandler, supra at 430; see also Pinkney v. VMS Realty, supra. “[T]he affirmative defenses of contributory and comparative negligence and assumption of the risk require a defendant to prove that a plaintiff’s conduct was unreasonable under the circumstances or that plaintiff knowingly encountered a known danger with appreciation thereof. Thus, jury questions are often presented as to whether the affirmative defenses have been established.” (Punctuation omitted; emphasis in original.) Continental Research Corp. v. Reeves, supra at 127 (3), quoting Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 171 (393 SE2d 64) (1990). Even where the plaintiff could have seen the substance or object had he or she looked, unless the object could plainly be seen from a sufficient distance to avoid the hazard, a fact question remains as to whether the plaintiff could have avoided contact with it; the object may not have been observable until the point in time and space when the plaintiff’s step was made and the fall became inevitable.

Therefore, unless the evidence is plain, palpable, and indisputable that the plaintifi/invitee’s negligence was the sole proximate cause of the plaintiff’s injury, which means that there is no way in which plaintiff could not avoid seeing the hazard except by his or her own negligence, the issues of ordinary care, diligence, proximate cause, contributory negligence, and comparative negligence must be resolved by a jury rather than by summary adjudication. Shubert v. Marriott Corp., supra; Haire v. City of Macon, supra; Pinkney v. VMS Realty, supra; Begin v. Ga. Championship Wrestling, supra; Ga. Power Co. v. Knighton, 169 Ga. App. 416, 417 (312 SE2d 872) (1984); Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (289 SE2d 807) (1982); DeKalb County Hosp. Auth. v. Theofanidis, supra; Sears, Roebuck & Co. v. Chandler, supra. “Where the evidence is susceptible of more than one inference, it is the jury rather than the trial judge who should make the determination.” Ga. Power Co. v. Knighton, supra at 417.

It is not plain, palpable, or indisputable in the case sub judice that the appellant failed to exercise ordinary care for her own safety. The evidence shows that the appellant was looking at the floor while walking toward the clothes rack and did not notice a hanger on the floor. After removing a dress from the rack, she slipped and fell as she turned around to replace the dress. She admits that, at the time of the fall, she was not looking at the floor but instead was looking at the dresses on the rack, but it has not been shown that she could have seen the hanger on the floor had she looked immediately prior to her step. As she lay on the floor after the fall, she noticed a hanger lying at her feet. The trial court construed the evidence with an inference against appellant that she would have seen the hanger had she looked; this is a negative inference against the respondent not based upon direct evidence. However, we cannot say, as a matter of law, that appellant failed to exercise reasonable care for her own safety under these circumstances. Compare Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994).

Further, the “plain view” doctrine does not compel a finding that the appellant would have seen the hanger if she had been looking. See Sears, Roebuck & Co. v. Chandler, supra at 429; Moore v. Kroger Co., 87 Ga. App. 581 (74 SE2d 481) (1953). There is no evidence that the hanger was in the plain view of the appellant; she stated that she did not see the hanger as she approached the clothes rack, even though she was watching where she was going. Further, Lukat, the Sears employee, admitted that she did not see a hanger during her inspection 20 minutes prior to the fall, nor did she see it after the fall. Construed in the light most favorable to the appellant, a reasonable factfinder could conclude that if a hanger was present, it was concealed by the clothes rack. See Lau’s Corp. v. Haskins, supra; see also Stenhouse v. Winn Dixie Stores, supra at 474.

Decided July 16, 1997.

Michael B. King, for appellant.

The case sub judice is distinguishable from this Court’s ruling in Edwards v. Wal-Mart Stores, supra, wherein an invitee slipped on a white plastic hanger on her way to the dressing room. In Edwards, the plaintiff admitted that there were several hangers on the floor and that “had she been looking at the floor before she fell, she would have had no trouble seeing the hanger.” Id. at 338. Further, evidence indicated that store employees had just inspected the area five minutes earlier and found no hazards. Although this Court found that a jury issue existed regarding whether or not the defendant had constructive knowledge of the alleged hazard, we found that the plaintiff failed to exercise reasonable care and affirmed summary judgment for the defendant. Edwards was decided under an Alterman Foods analysis, so that a finding of the plaintiff’s negligence was a bar to her recovery. However, even under the analysis described above, the outcome would have been the same. There was no dispute that the hangers were in plain view and should have been discovered by the plaintiff. Further, in an area, such as around dressing rooms, where one could reasonably expect to find discarded hangers, clothing, and other items, plaintiff’s failure to scan the floor and ensure that there are no obstacles could be considered a plain, palpable, and indisputable failure to exercise care to detect an open and obvious danger. Foodmax v. Terry, supra; Smith v. Wal-Mart Stores, supra.

Such is not the situation in the case sub judice; a jury issue exists as to whether appellant exercised reasonable care for her own safety. Therefore, based upon the evidence in the record before the trial court, it was error for the trial court to grant appellees’ motion for summary judgment, because to do so from the evidence, the trial court had to draw a negative inference against the appellant, which cannot be done on motion for summary judgment.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, Julia B. Haffke, for appellees.

        Butler v. Lanier Park &c. Hosp., supra, purports to establish a per se rule regarding the reasonableness of inspection procedures. In Butler, this Court found that the defendant hospital’s policy of patroling the floors approximately every 20 minutes was reasonable as a matter of law. However, Butler is not binding precedent, as two of the three judges on the panel concurred in judgment only.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A0354.
    JAMAL et al. v. PIRANI.
    (490 SE2d 140)
   Ruffin, Judge.

In this suit stemming from a dispute between business associates, Karim Jamal appeals the trial court’s grant of partial summary-judgment to Raees Pirani. Jamal, Pirani, and Arif Hussein were engaged in the convenience store business. Their corporation, Ark International, Inc. (“Ark”), owned two stores: J’s One Stop (“J’s”) and the Palmetto Gas N’ Go (“Palmetto”). After a business dispute arose between the three men, Pirani purchased two additional stores, Ben’s One Stop (“Ben’s”) and Raymond’s Express (“Raymond’s”). In his suit, Jamal contends Pirani, Hussein, and Ark had failed to pay him amounts due from the operation of J’s and Palmetto and had failed to repay loans he advanced for the purchase of those stores. Jamal also claims the defendants breached an oral partnership agreement by excluding him from participation in the purchase of Ben’s and Raymond’s and seeks, as damages, a one-third share in those businesses. In its order granting partial summary judgment, the trial court ruled that Jamal could not claim any interest in Ben’s or Raymond’s based on the oral agreement. The court also held that Jamal could not individually assert any claim that Pirani, as a director and officer of Ark, usurped corporate opportunities belonging to Ark by purchasing Ben’s and Raymond’s himself. For reasons which follow, we affirm.

In reviewing the grant of a defendant’s motion for summary judgment, we review the record de novo to determine if the evidence, construed strongly in the plaintiff’s favor, supports the trial court’s finding that no genuine issue of material fact existed and that the defendant was entitled to judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). That evidence shows that when Jamal, Hussein, and Pirani purchased J’s and Palmetto, they orally agreed that they would purchase as many additional stores as they could, and each would be a one-third partner in all stores purchased. Jamal testified that “[i]f we got 50 stores, if the three of us would [sic] come up with the finances we would take it[,] if they were cheap enough, if we could come up with the finances.” The parties orally agreed to form a corporation, Ark, and agreed that all stores acquired would be contributed to Ark. According to Jamal, this agreement to contribute convenience store opportunities to Ark had no time limit and was to be in effect as long as Ark was in business and the three men were alive. “It was going to be a corporation, and each would have a one-third interest in the corporation in however many stores we took or were able to take,” according to Jamal.

The record shows Ark was incorporated, with each of the three men owning one-third of its shares. Although the corporation operated J’s and Palmetto, the parties did not reduce to writing any agreement regarding Ark’s purchase of additional stores. After a dispute arose between the three, Pirani purchased Ben’s and Raymond’s without giving Jamal or Ark the opportunity to share or participate in those business ventures.

1. We find no error in the trial court’s determination that Jamal has no ownership or expectancy interest in Ben’s or Raymond’s based on the oral “partnership” agreement. The trial court found that the purported agreement to purchase unspecified stores in the future violated the Statute of Frauds and was too indefinite to enforce. Without deciding those issues, we find any oral partnership terminated as a matter of law when Jamal, Hussein, and Pirani incorporated their business and began operating their venture under the corporate form. See Carnes v. McNeal, 224 Ga. App. 88, 89 (479 SE2d 474) (1996); see also Baker v. Schneider, 210 Ga. 493, 494 (2) (80 SE2d 783) (1954). Therefore, any claim that Pirani owed a partner’s duties to Jamal in the purchase of Ben’s or Raymond’s, or that Pirani was acting on behalf of a partnership when he purchased those stores, is without merit.

We will affirm a trial court’s holding if it is right for any reason. See Gwinnett Place Assoc., L.P v. Pharr Engineering, 215 Ga. App. 53, 56 (2) (449 SE2d 889) (1994). Therefore, we affirm the trial court’s order granting summary judgment to Pirani on Jamal’s claims for a partnership or expectancy interest in the Ben’s and Raymond’s convenience stores.

2. The trial court also rejected Jamal’s claim that Pirani’s purchase of Ben’s and Raymond’s wrongfully deprived Ark of corporate opportunities. Whether or not Pirani’s actions violated his duties to the corporation, Jamal has no individual, direct cause of action for such breach. The general rule is that, outside the context of a statutory close corporation, an action for breach of corporate fiduciary duties must be brought in a derivative suit on behalf of the corporation, and no such claim has been made in this action. Grace Bros., Ltd. v. Farley Indus., 264 Ga. 817, 819 (2) (450 SE2d 814) (1995); see also Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585 (1) (397 SE2d 699) (1990). “Actions seeking to recover for usurped ‘corporate’ opportunities belong to the corporation.” Id. Here, Ark is not named as a plaintiff, and Jamal has alleged no special injury different from that suffered by the corporation. Nothing in the record shows Ark International is a statutory close corporation. See OCGA § 14-2-902 (a). The trial court did not err by rejecting this claim. See Holland v. Holland Heating &c., 208 Ga. App. 794, 797-798 (3) (432 SE2d 238) (1993). See also Gwinnett Place, supra.

Decided July 15, 1997

Reconsideration denied July 29, 1997

McLarty, Robinson & Van Voorhies, John E. Robinson, for appellants.

Allen W. Bodiford, Martin C. Jones, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       Jamal has alleged Pirani used monies owed him to acquire Ben’s and Raymond’s. Nothing in the trial court’s order or in this Court’s opinion prevents Jamal from recovering those assets should the factfinder agree with his contentions. The fact that money was allegedly diverted, however, does not give Jamal an expectancy in the business in which those funds may have been invested.


author: Johnson, Judge.

text:
    A97A0469, A97A0470.
    DAWSON et al. v. FULTON-DEKALB HOSPITAL AUTHORITY et al.; and vice versa.
    (490 SE2d 142)
   Johnson, Judge.

In this medical malpractice case against the Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital, the Georgia Medical Care Foundation (“GMCF”), and Dr. Benjamin White, Sharion Dawson contended the defendants caused the death of her ten-year-old son, Antonio Dawson. The trial court granted summary judgment to GMCF and Dr. White, and the case proceeded to trial against Grady. The jury returned a $26,700 verdict in favor of Dawson against Grady.

In Case No. A97A0469, Dawson appeals, contending the trial court erred in granting summary judgment to GMCF and Dr. White; in admitting evidence at trial tending to show she was negligent in caring for her son; and in denying her motion for new trial, made on the ground the verdict was inadequate. In its cross-appeal, Case No. A97A0470, Grady challenges the trial court’s jury instructions on contributory negligence and preexisting conditions.

The evidence in the record before us shows that Antonio Dawson suffered from obstructive sleep apnea, a potentially fatal breathing disorder, caused in his case by morbid obesity and enlarged adenoids. Between April and August 1991, Antonio Dawson was referred to several Grady pediatric clinics, including the neurology clinic, the ear, nose, and throat (“ENT”) clinic, the nutrition clinic, and the endocrinology clinic. He was also referred to the Grady pediatric continuity clinic. The function of the continuity clinic was to provide primary care and to coordinate his overall care. Sharion Dawson did not bring her son to appointments with his primary care pediatrician on May 28, 1991; with the nutrition and ENT clinics on June 18, 1991; or with the ENT clinic on June 25, 1991. She did bring the child to several other appointments with the various clinics in the spring and summer of 1991, however, and when he was weighed at a July 11, 1991 appointment, he had lost approximately 24 pounds. After examining the child on July 25, 1991, a Grady doctor determined that the child’s enlarged adenoids obstructed the child’s airway and were a major contributing factor to his obstructive sleep apnea. This physician scheduled an adenoidectomy for August 14, 1991, to resolve this medical problem and improve the child’s breathing.

Antonio Dawson was a Medicaid recipient, and Medicaid would not pay for the adenoidectomy without preapproval. To conduct such preapproval and precertification reviews, the Georgia Department of Medical Assistance had contracted with GMCF. Dr. White was an ENT specialist who served on a panel of physicians employed by defendant GMCF to perform preapproval reviews. In the usual course of GMCF’s review process, Dr. White was provided the medical information submitted by Grady in support of its application for preapproval of Antonio Dawson’s scheduled adenoidectomy, but never examined the child. Though nothing in the application submitted by Grady indicated that Antonio Dawson’s tonsils were either enlarged or were contributing to the obstruction of his airway, and no such enlargement was noted by Grady physicians in either the July 25, 1991 ENT clinic examination or in the August 6 preoperation examination, Dr. White informed GMCF that if Antonio Dawson had true sleep apnea, he needed not only the adenoidectomy, but a tonsillectomy as well. Dr. White intended that GMCF would relay this information to the child’s doctors and apparently believed this would be done routinely. While there is some evidence that Dr. White’s opinion was passed along to Grady by telephone by the reviewing nurse at GMCF, who had no specific recollection of this case, the written notice sent to Grady by GMCF merely disapproved the adenoidectomy, mentioned nothing regarding Dr. White’s opinion, and contained no explanation of the denial other than to say “[biased on the information provided it has been determined that the admission/ procedure scheduled for 8-14-91 at above-mentioned hospital is not necessary at this time for the treatment of the condition identified. This decision is based on the following: INFORMATION SUBMITTED DOES NOT JUSTIFY THE REQUESTED PROCEDURE.” Nothing in the record before us shows that GMCF ever notified Sharion Dawson that the procedure had been denied or provided her any information regarding Dr. White’s opinion.

An unidentified person on the Grady staff told Sharion Dawson by telephone on August 13, 1991, the operation had been canceled because Medicaid had refused to pay for it. Dawson understood from this conversation Grady would try again to obtain Medicaid approval. Grady eventually submitted an appeal to GMCF, but it was denied as untimely.

Antonio Dawson received no further treatment for his obstructive sleep apnea. He died in his sleep on May 15,1992. In an autopsy, the Fulton County Medical Examiner found he weighed 148 pounds at death, and that enlargement of his adenoid's as well as his tonsils partially obstructed his nasal and oral airways. The medical examiner concluded Antonio Dawson’s death resulted from “cardiac dysrhythmia due to obstructive sleep apnea due to obesity and adenotonsillar hyperplasia.”

Dawson’s medical expert testified that an adenoidectomy would have saved Antonio Dawson’s life. Grady responded by arguing that Sharion Dawson was negligent in caring for her son, and that her negligence contributed to his death. Specifically, Grady contended that between August 1991 and May 1992, Sharion Dawson did not control her son’s diet. Grady also introduced evidence she sought no treatment for the child, despite urgings of his school counselor, his school social worker, and a Department of Family & Children Services worker that she seek medical care for him. Dawson contended she had taken the child to Grady in April 1992, but was unable to get anyone to see him because he did not have an appointment.

Case No. A97A0469

Because the trial court did not expressly direct an immediate entry of judgment under OCGA § 9-11-54 (b) as to GMCF and Dr. White, Dawson was entitled to wait until after final judgment to appeal from the summary judgment rulings. See Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978).

1. Dawson claims it was error to grant summary judgment to GMCF and Dr. White. Though GMCF and Dr. White argued multiple grounds in support of their motion, the only reason the trial court gave for its ruling was that it found no physician-patient relationship between Dr. White and Dawson’s son.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

(a) We note in passing that the peer review immunity established by OCGA § 31-7-132 applies only to individuals, not organizations such as GMCF. For reasons discussed below, it is not necessary for us to reach the issue of whether Dr. White or any other individual associated with GMCF is entitled to this immunity in the situation before us.

(b) Dawson has not argued Dr. White was to blame for GMCF’s failure to transmit his medical assessment to her son’s doctors. Instead, she contends that by expressing his opinion that the tonsillectomy was needed, with the result that the procedure deemed medically necessary by her son’s treating physicians at Grady was not approved, he interfered in the treatment to the extent that he created a physician-patient relationship between himself and Antonio Dawson which subjected him to an action for professional negligence. Though there is some evidence in the record to support a conclusion Dr. White’s medical opinion was incorrect and may have contributed to Antonio Dawson’s death by delaying or preventing appropriate treatment, we are constrained to agree with the trial court that Dawson cannot establish that a physician-patient relationship was ever created between Dr. White and Antonio Dawson. Dr. White is therefore entitled to judgment as a matter of law.

This Court has held repeatedly that a doctor-patient relationship must be consensual. Minster v. Pohl, 206 Ga. App. 617, 619 (1) (426 SE2d 204) (1992). It is undisputed that there was never any contact between Dr. White and either Antonio or Sharion Dawson. Regardless of the opinion he offers, an anonymous physician whose involvement is limited to evaluating a proposed treatment for purposes of Medicaid coverage, who has no contact with the patient or the patient’s treating physicians, does not thereby enter into a doctor-patient relationship. See Peace v. Weisman, 186 Ga. App. 697, 698-699 (1) (368 SE2d 319) (1988), in which there was no doctor-patient relationship even though the defendant physician actually examined the patient. The trial court therefore did not err in granting summary judgment to Dr. White.

(c) While summary judgment was appropriate for Dr. White, we find questions of material fact remain regarding whether GMCF is liable for its own ordinary negligence in failing to send Dawson and Grady a proper notice under 42 USC § 1320c-3 (a) (3) (A). This statute requires a peer review organization such as GMCF to send notice to a Medicaid patient and the appropriate health care provider stating that coverage for a procedure has been denied.

42 USC § 1320c-3 is part of Title XI of the Social Security Act, not Title XIX (Medicaid). However, under 42 USC § 1396a (d), which is part of Title XIX, the contract between the state Medicaid agency and a Medicaid peer review organization such as GMCF must require the peer review organization to perform activities “not inconsistent with Part B of title XI [42 USC § 1320c et seq.]” We interpret this language to incorporate the notice requirement of 42 USC § 1320c-3 (a) (3) (A) into Title XIX. GMCF contends it is not required to send notices under § 1320c-3 (a) (3) (A) because the Georgia Department of Medical Assistance has assumed this responsibility. The contract between the state and GMCF is not part of the record, however, and the other document GMCF cites for this proposition does not bear out its argument. Moreover, a state does not have the power to grant exemptions to federal law. We therefore hold GMCF has not shown it was exempt from the notice requirement and proceed to consider the proper contents of such a notice.

When peer review organizations such as GMCF make what are essentially economic judgments based upon medical opinions rendered by their agents or employees, they walk a fine line between their proper function and the unauthorized practice of medicine. For this reason, among others, implicit within the notice requirements of 42 USC § 1320c-3 (a) (3) is that the notice be truthful and complete as to the reasons a proposed course of treatment is not approved, and, where the disapproval is based upon a medical opinion regarding the reasonableness or necessity of the proposed treatment, the substance of that medical opinion must be communicated. Here, the treatment provider and the patient were not told that the patient’s proposed course of treatment was disapproved because it should have included an additional surgical element beyond that for which payment was requested. Rather, the notice GMCF sent Grady states that the medical information they had provided the peer review organization “does not justify the requested procedure,” and “the admission/procedure ... is not necessary at this time for the treatment of the condition identified.” This was not true. To the contrary, Dr. White, the physician upon whose opinion this notice was based, indicated that given the sleep apnea diagnosis and the medical information he had been provided, the patient needed not only the requested procedure but a tonsillectomy as well.

It is undisputed GMCF sent Sharion Dawson no notice at all, clearly violating the statute as to her. Without such a notice, a lay consumer of medical services may be left to conclude in error that the medical problem is minor, that the proposed treatment is not necessary, and that there is no need to fight aggressively for its approval. The evidence in this case demonstrates dramatically the possible consequences of such a misunderstanding.

And though GMCF sent a notice to Grady, it was, in fact, worse than no notice at all. The false "explanation” in the Grady notice misled rather than simply failed to inform. If it had told Antonio Dawson’s doctors of Dr. White’s true medical assessment, the Grady physicians could have made one of two responses to address Dr. White’s concern. They could have submitted information demonstrating that, contrary to Dr. White?s assumption, as of August 1991 Antonio Dawson’s tonsils were not enlarged and did not obstruct his oral airway, or they could have reconsidered their own opinion that a tonsillectomy was not called for in spite of these findings. However, because the only reason for the denial GMCF gave in its notice was a supposed deficiency in the documentation of the need for the adenoidectomy, Grady staff merely resubmitted the original request after adding additional notations describing Antonio Dawson’s symptoms and indicating that a July 11, 1991 x-ray had shown prominent adenoids.

A nurse who, as an employee of GMCF, had worked on the Dawson preapproval review had no specific recollection of Antonio Dawson’s case. She testified that under her standard practice she would have received the initial approval request from Grady, called a physician reviewer (in this case, Dr. White) and read him the relevant parts of the request, summarized his response in writing on the request, and checked a box on a form that another GMCF employee would use in generating a written notice of the decision. She testified that the only choice allowed to her under GMCF’s internal procedures in this type of situation was to check the box marked "5 PDNN,” meaning "physician denial, not medically necessary.” The nurse also testified that her standard practice was to discuss the reasons for a denial by phone with the “requesting provider.” As illustrated by this case, this procedure could result in a written notice that did not even come close to reflecting accurately the true reason for a denial. Whether the nurse’s testimony and the other evidence in the record show that Dr. White’s opinion was or was not relayed in its entirety to Antonio Dawson’s doctors, or that GMCF’s failure to provide a proper written notice under 42 USC § 1320c-3 (a) (3) proximately contributed to Antonio Dawson’s death are questions of material fact that a jury must answer. It was therefore error to grant summary judgment to GMCF.

2. Dawson contends the trial court erred in denying her motion in limine to exclude certain testimony and documentary evidence, discussed below, that Grady contends were relevant to show Dawson’s own negligence proximately contributed to her son’s death. In considering these alleged errors, we bear in mind the admission of evidence is a matter largely within the discretion of the trial court. Lewis v. Uselton, 224 Ga. App. 428, 431 (8) (480 SE2d 856) (1997).

(a) Dawson complains of the admission of evidence that she moved sometime in 1991 and did not give Grady her new address or telephone number. Grady claims this evidence was relevant because a nurse in the continuity clinic tried to contact Dawson in September 1991 to reschedule a missed appointment, and if she had been able to do so, it is likely the surgery would have been rescheduled and performed.

We find no abuse of discretion in the admission ofithis evidence. “The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.” (Citation and punctuation omitted.) First Union Nat. Bank &c. v. Cook, 223 Ga. App. 374, 380-381 (11) (477 SE2d 649) (1996). Dawson’s argument that valid phone numbers for two family contacts were always in her son’s file goes to the weight of the evidence, not its admissibility.

(b) Dawson argues it was irrelevant she did not bring the child to four Grady clinic appointments on three days in May and June 1991. She contends because these missed appointments were before the scheduled surgery date of August 14, and because she brought him to several other appointments during that spring and summer, the missed appointments are not probative of whether she committed later negligence contributing to the child’s death.

Dawson’s argument is correct. Because the evidence did not show she had a “fixed and uniform habit” of negligently caring for her son, evidence of the missed May and June 1991 appointments was not probative of whether she negligently cared for him after the surgery was canceled in August. See generally Leo v. Williams, 207 Ga. App. 321, 323 (428 SE2d 108) (1993). “As a general rule in negligence actions, evidence of similar acts or omissions is not admissible.” Goss v. Total Chipping, 220 Ga. App. 643, 644 (2) (a) (469 SE2d 855) (1996); see generally OCGA § 24-2-2. Exceptions discussed in Gunthorpe v. Daniels, 150 Ga. App. 113 (257 SE2d 199) (1979), do not apply here. Furthermore, Dawson’s medical expert testified that the Grady physicians did not react to Antonio Dawson’s condition with suitable urgency, so it is unsurprising that Dawson did not gain from them an understanding of the importance of diligently attending to her son’s condition. Admitting this evidence was error.

A showing of mere error is not enough to obtain a reversal, however. Harm must be shown as well. Theatre of the Stars v. Atlanta Woman’s Club, 184 Ga. App. 810, 814 (4) (363 SE2d 6) (1987); see generally OCGA § 9-11-61. The test for whether an evidentiary error is harmful is whether it affected the verdict. See Collins v. Davis, 186 Ga. App. 192, 195 (1) (366 SE2d 769) (1988). We have found no Georgia decisions addressing the harmless error question in a comparative negligence case, in which the jury is asked to determine not merely whether the plaintiff was negligent, but the degree to which any negligence of the plaintiff contributed to her injury. Decisions from other jurisdictions, however, agree that when evidence which the jury might view as bearing on a party’s negligence is improperly admitted or excluded, the error “could impact the percentage of comparative negligence” and therefore mandates reversal. Magliocco v. American Locker Co., 239 Cal. Rptr. 497, 503 (Cal. App. 1987); see also Boles v. Brackin, 411 S2d 280, 282 (Fla. App. 1982), rev’d on other grounds, 452 S2d 540 (1984), and Auseth v. Farmers &c. Ins. Co., 99 NW2d 700, 702 (Wis. 1959). We agree with this reasoning and have found no cases to the contrary. We therefore hold the trial court erred in denying Dawson’s motion for new trial.

Because the evidentiary issue is dispositive, we need not reach Dawson’s allegation the trial court erred in failing to set aside the verdict as inadequate. We address below the issues raised by Grady in its cross-appeal, as they are likely to arise again on retrial.

Case No. A97A0470

3. Grady contends the trial judge erred by charging the jury Dawson could “be contributorily negligent only if she had knowledge or reasonable notice of the danger to be avoided. A plaintiff parent who does not have such knowledge or notice is not contributorily negligent.” Grady claims this instruction confused the principles of contributory negligence, which was an issue in the case, and assumption of the risk, which was not. If this charge is given on retrial, Grady argues, it may lead the jury mistakenly to believe they may not hold Dawson’s negligence against her unless her conduct was so culpable as to meet the higher standard for assumption of the risk.

The foundation of Grady’s argument is that assumption of the risk is a knowing choice of or acquiescence in a course of action that runs a known risk, while contributory negligence is merely unreasonable conduct, which may include failure to take reasonable care to discover unknown dangers. In a contributory negligence case, “[t]he question is not what the defendant in fact comprehended but what should have in the exercise of ordinary care been comprehended.” (Emphasis omitted.) Nathan v. Oakland Park Supermarket, 126 Ga. App. 538, 540 (2) (191 SE2d 327) (1972). Compare Vaughn v. Pleasent, 266 Ga. 862, 864-865 (1) (471 SE2d 866) (1996).

While we generally agree with Grady’s characterization of the two defenses, we do not agree the challenged charge was so confusing as to constitute reversible error. The trial court’s use of the phrase “knowledge or reasonable notice” would tell a reasonable jury it could find Sharion Dawson contributorily negligent if the facts were sufficient to put a reasonable person on notice of the danger to Antonio Dawson, even if Sharion Dawson was not herself conscious of that danger. Moreover, the trial court gave a fuller instruction on contributory negligence, which Grady does not challenge, immediately afterward. “[Vjiewing the charge as a whole, as we must, we cannot say that it misstated the law or was confusing to the jury.” (Citation and punctuation omitted.) Fouts v. Builders Transport, 222 Ga. App. 568, 574 (4) (474 SE2d 746) (1996).

4. Grady contends the following charge was erroneous for two reasons: “The defendants in this case took Antonio Dawson as they found him. That is, the fact that he may have had certain preexisting conditions or disabilities, which combined with the negligent acts, if any, of the defendants caused his death, would not absolve the defendants of liability if you should find that the defendants were negligent, and that such negligence was a contributing factor to his death.”

(a) Grady argues Antonio Dawson had no preexisting condition, because at the time the surgery was canceled he had lost a significant amount of weight and his tonsils were not enlarged. The record shows, however, that at his lightest the child was well over double his target weight, and Grady has pointed to no evidence the swelling of his adenoids ever subsided. As mentioned above, Dawson’s medical expert said the obesity and adenoidal enlargement combined to create an “ENT emergency.” Grady’s argument is therefore without merit. See generally Madden v. Solomon, 196 Ga. App. 512, 513-514 (3) (396 SE2d 245) (1990).

(b) Grady claims the charge on preexisting conditions was improper because the jury was not “properly qualified on what a preexisting condition was,” and was not instructed that it must decide whether a preexisting condition was present before deciding whether Grady’s conduct aggravated it. Given the plain evidence and obvious issues in the case, we do not find the challenged charge to be confusing or a misstatement of the law. See generally Fouts, supra.

Decided July 16, 1997

Reconsiderations denied July 29, 1997

Toliver & King, Alvin L. Toliver, Joseph H. King, Jr., James A. Shea, Jr., for appellants.

Alston & Bird, James C. Grant, Robert D. McCallum, Jr., Candace N. Smith, for appellees.

Judgment affirmed in Case No. A97A0470. Judgment affirmed in part and reversed in part in Case No. A97A0469.

Pope, P. J., and Blackburn, J., concur.

       Dawson’s medical expert testified that while it is common and accepted practice to remove the adenoids whenever a tonsillectomy is performed, the converse is not true — that is, the tonsils are not always removed in conjunction with an adenoidectomy. Based on Antonio Dawson’s medical records, this expert saw only the need for an adenoidectomy, not a tonsillectomy. The expert also characterized Antonio Dawson’s condition as an “ENT emergency,” and opined that Grady staff did not act with an appropriate “sense of urgency” in quickly obtaining an adenoidectomy or other treatment more promptly.

       The resubmission occurred approximately one month after the initial denial, even though the deadline for appeals was ten days from receipt of the denial. The GMCF nurse testified that 25 to 50 percent of Grady’s appeals were untimely.

       Evidence of other specific instances of negligence may be admitted to rebut a contention it was impossible for an accident to happen in the manner claimed, or to show causation, the prior existence of a dangerous condition or hazardous situation, knowledge of a defect, or a degree of wilfulness or wantonness sufficient to justify punitive damages. Gunthorpe, supra at 113-116 (1), (2), (3). This list may not be exhaustive. Id. at 114 (1).


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A97A0525.
    PARKS-NIETZOLD et al. v. J. C. PENNEY, INC.
    (490 SE2d 133)
   Smith, Judge.

Patricia Parks-Nietzold and her husband brought suit against J. C. Penney, Inc. to recover damages for personal injury incurred by Parks-Nietzold in the restroom of a J. C. Penney store. The trial court granted the store’s motion for summary judgment, and plaintiffs appeal.

Parks-Nietzold testified at her deposition that on the date of the incident, she entered the only available stall in the ladies’ restroom of the store. She had never been in that store before. The latch was missing, but she was able to close the door; she placed her purse on the floor of the stall in front of the door so that anyone looking at the outside of the stall would see that it was occupied. She was in the process of rearranging her clothing when a woman opened the door of the stall forcefully and caused it to hit Parks-Nietzold’s head. ParksNietzold testified that she lost consciousness. She was diagnosed as having sustained a mild concussion with no lasting effects. She alleged in her complaint, however, that she “sustained serious injuries which have necessitated specialized medical attention and treatment which is ongoing” and that “[t]he quality of her life has been severely diminished by the incident.”

A proprietor owes its invitees a duty of exercising ordinary care in keeping its premises safe. Young v. Wal-Mart Stores, 209 Ga. App. 199 (433 SE2d 121) (1993). The trial court found that J. C. Penney had demonstrated that it exercised ordinary care and that the broken latch was not a dangerous instrumentality; the trial court also found that even if the foregoing were not true, Parks-Nietzold’s knowledge of the dangerous condition was superior to that of J. C. Penney and prevented recovery. We agree with the trial court’s analysis, and we affirm.

1. Parks-Nietzold and her husband contend that genuine issues of material fact remain with regard to the issue of ordinary care. In support of its motion for summary judgment, J. C. Penney presented the deposition and affidavit of Jim Sheffield, the stockroom and maintenance manager of the store. He was directly responsible for the maintenance of the restroom. His uncontroverted affidavit established that J. C. Penney cleaned and restocked the restroom on a daily basis, but only the more comprehensive weekly cleanings performed on Monday mornings would have revealed a broken latch. Even if this is tantamount to an admission that had the daily cleanings included an inspection of the latches the broken latch would have been discovered, as the dissent concludes, no such inspection was warranted. This is so because no prior broken or inoperable restroom stall privacy latches occurred at this store prior to this incident to make J. C. Penney believe that latches should be inspected more frequently. The latches had never before been known to cause any personal injury. This incident occurred on a Sunday, and no evidence was presented that the latch was reported broken during the previous week. In fact, to Sheffield’s knowledge, this was the only time a privacy latch has had to be replaced. A proprietor need not inspect for every theoretically possible hazard when no reason appears for doing so. Zellers v. Theater of the Stars, 171 Ga. App. 406, 408 (2) (319 SE2d 553) (1984). Even assuming that J. C. Penney should have known that a broken latch was dangerous, because it had no knowledge of the broken latch, either actual or constructive, the store’s regularly scheduled inspections were sufficient to demonstrate the exercise of ordinary care. Those inspections distinguish this case from Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3-4 (432 SE2d 230) (1993), cited by plaintiffs. In Thompson, the store did not present evidence that it regularly inspected the premises, and therefore the burden did not shift to the plaintiff to show that the defect had existed for a sufficient period of time to have been discovered. The contrary is true here.

This case is also different from Sain v. K-Mart Corp., 190 Ga. App. 751 (380 SE2d 299) (1989), relied upon by plaintiffs. In that case, the evidence showed that an employee of the store was in the vicinity at the time the plaintiff fell and could have picked up the plastic bags that caused the fall. Id. at 752-753. In this case, no evidence was presented that any store employees were in the vicinity. The trial court did not err in finding that J. C. Penney exercised ordinary care.

2. Parks-Nietzold also contends the trial court erred in finding that she had equal knowledge of the alleged defect. We do not agree.

The true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. Dyer v. Joe Rigatoni’s of Atlanta, 191 Ga. App. 473 (382 SE2d 193) (1989). Recovery is allowed only when the proprietor had knowledge and the invitee did not. Id. Here, the evidence showed without dispute that J. C. Penney did not know about the broken latch.

In contrast, Parks-Nietzold entered the stall and used it despite her knowledge that the latch was broken and the door would not lock. Although Parks-Nietzold claims this was an “emergency” and it was absolutely necessary for her to use the stall, that does not change the fact that the store had no knowledge of the broken latch and ParksNietzold did. Her knowledge was certainly at least equal to that of the store.

Parks-Nietzold’s contention that her recovery was not barred by her superior knowledge because the broken latch was a building code violation is similarly without merit. For this contention, she relies upon Bastien v. Metropolitan Park Lake Assoc., 209 Ga. App. 881, 882 (434 SE2d 736) (1993). But Bastien involved the statutory duty of landlords to their tenants under OCGA § 44-7-2 (b), which is not applicable here.

We need not decide whether the broken latch constituted a building code violation because, even assuming it did, it would show only negligence per se. As this Court held in Florence v. Knight, 217 Ga. App. 799 (459 SE2d 436) (1995), “[njegligence per se is not liability per se. Negligence, it should be remembered, is in itself only one of the essential elements prerequisite to a cause of action in a given case.” (Citations and punctuation omitted.) Id. at 800. The equal knowledge rule would preclude recovery even if Parks-Nietzold could show that the broken latch was negligence per se as a violation of the building code. The trial court did not err in granting summary judgment to Penney’s.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment in this premises liability action as I feel the issues involved should be resolved by a jury. According to the affidavit of Jim Sheffield, the “Stockroom and Maintenance Manager for J. C. Penney Co., Inc.,” defendant’s “routine cleaning and maintenance does not include an inspection of the ‘privacy latch,’ ” yet when Sheffield “inspected the restroom [the following] day, [he] found one stall, which had a broken ‘privacy latch.’ ” This is tantamount to an admission that, if J. C. Penney’s inspection routine included an inspection to assure that privacy latches were in proper working order, this broken latch would have been discovered. Plaintiff’s testimony that she placed her purse in the front of the stall to alert patrons to her presence is evidence that she exercised ordinary diligence for her own safety. Keaton v. A. B. C. Drug Co., 266 Ga. 385, 386 (1) (c), 387 (467 SE2d 558); Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485). The storekeeper is not relieved of the consequences of any negligence by an intervening act which he should have anticipated. Colonial Stores v. Donovan, 115 Ga. App. 330, 331 (2) (154 SE2d 659).

Decided July 11, 1997

Reconsideration denied July 29, 1997.

Diane M. Zimmerman & Associates, Charles P. Taylor, for appellants.

Anderson, Walker & Reichert, Robert A. B. Reichert, for appellee.

A privacy latch in a public restroom protects dual privacy aspects, namely, one’s personal privacy within a defined and limited space, and one’s right to exclusive temporary possession of that space. Plaintiff was injured when another patron failed to spot plaintiff’s purse as an emblem of her possession and opened the unlatch-able door, striking plaintiff as she struggled to dress herself. In my view, that physical injury is precisely the type of injury a properly working privacy latch was designed to prevent. Consequently, this case falls within the general rule that questions of foreseeability and proximate cause are for the jury to determine. The majority’s rationale begs that very question of foreseeability by denigrating the actual flaw here observed as theoretical. As my colleagues in the majority would affirm the grant of summary judgment despite the existence of material fact questions, I respectfully dissent.

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