text:
    A97A1611.
    CONSTRUCTION LENDER, INC. et al. v. SUTTER et al.
    (491 SE2d 853)
   Ruffin, Judge.

The Construction Lender, Inc. (“TCL”) and its president, Joe Ray, appeal from a $111,727.21 jury verdict and judgment in favor of Robert and Sandra Sutter, who borrowed money from TCL to finance the construction of their Hall County home. The jury’s verdict was based on the Sutters’ negligence claims, in which they alleged TCL and Ray had improperly disbursed $47,500 to the builder, Joe Mus-tin, who then abandoned the job and left the house uncompleted. We find the evidence supports the jury’s finding on one theory of negligence, but we reverse the judgment and remand for a new trial because the Sutters cannot sustain a second negligence theory and failed to prove that certain damages were proximately caused by any action of TCL or Ray.

We review the evidence, as we must, construing it strongly in favor of the jury’s verdict. See Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996). Viewed in this light, the evidence shows that in April 1994, the Sutters and builder Joe Mustin agreed in writing that Mustin would construct the Sutters’ home for a total contract price of $235,000. That contract specified the Sutters would give Mustin a ten percent advance, and Mustin would receive additional payments based on the “Lender’s Draw schedule.”

The Sutters then entered a loan agreement with TCL to finance the construction and to pay off the purchase price for the underlying land. That agreement specified TCL would make “advances” up to the “total principal amount” of the note, provided that, among other things, “[a]t the time of each advance, [TCL] is fully satisfied with the timeliness, progress, and quality of development and/or construction and, in the sole opinion of [TCL], the estimated cost of development and/or construction in accordance with the plans and specifications does not exceed the balance of the loan to be advanced.” The contract further specified, however, that “[TCL] has had no control over, will have no control over, has not supervised, and will not supervise the construction of improvements on the property. [TCL] has not, does not, and will not make any representations, warranties, guarantees or promises concerning the construction, workmanship, materials, or design employed in, to be used in, or constituting the improvements on the property. [TCL’s) relationship to the construction ... is solely that of a mortgage lender, and all periodic inspections and any appraisals made by [TCL] are for the sole purpose of protecting [TCL’s] security interest in the real estate and determining that progress has been made for the disbursement of construction loan funds as work has been completed.” At the bottom of the loan agreement, the Sutters signed a clause directing TCL to “make all advances under the foregoing agreement directly to the contractor” and authorizing Mustin “to apply for and receive all advances under the foregoing agreement for the purpose of paying all bills for labor and material employed in the construction. . . .”

At the closing, the Sutters learned that the ten percent advance to Mustin ($23,500) could not come from loan funds. A TCL employee told the Sutters that if they paid that advance, the $23,500 would be reimbursed to them from loan funds once the house was complete. Therefore, so long as no “change orders” were made, the Sutters alleged, TCL should have disbursed to Mustin a total of $211,500 in exchange for Mustin’s completion of the house. Mr. Sutter testified no such change orders were made.

After construction began, the Sutters had problems with Mus-tin’s work, including his incorrect placement of a driveway. In September, the Sutters asked Ray that he and TCL not make any further disbursements to Mustin without first obtaining their approval. Ray complied, and before allowing Mustin the next three draws, he called one of the Sutters and obtained authorization to make these advances. In December, however, Mustin requested an additional draw in excess of $60,000. Ray^inspected the construction, decided the work completed warranted an-advance of $47,500, and on December 15, 1994, disbursed those funds to Mustin without first contacting the Sutters. This unauthorized advance brought the total amount paid by TCL to Mustin to $211,564, or $64 in excess of what TCL should have paid the builder assuming no increases were made in the $235,000 fixed contract price. On December 19, 1994, Mustin abandoned the job and soon thereafter declared bankruptcy.

The Sutters presented evidence of their damages, including the amounts disbursed without authority and in excess of the contract price. They also sought the $50,000 cost of completing the house and other damages that resulted from the delays in completion caused when Mustin abandoned the job. Because the house was not complete, the Sutters were required to pay continuing interest on the construction loan and had to refinance the loan to pay the additional completion costs. They introduced evidence showing approximately $42,000 in additional unpaid materialmen’s liens that Mustin’s subcontractors had placed on the property. In addition to those amounts, the Sutters sought recovery for rent they paid from December 1994 through July 1995, moving expenses, damages resulting from deterioration to the house as it sat vacant and uncompleted for many months, and the cost of an insurance policy they maintained on the house from December 1994 until its completion.

At the close of evidence, but before the case was submitted to the jury, the Sutters dropped all their contract-based claims and proceeded only on two tort theories. First, they asserted that TCL and Ray had a tort duty to ensure that payments made on the loan were timely and for work actually done. Second, they argued that Ray and TCL negligently failed to discharge the duty they voluntarily undertook to obtain the Sutters’ approval before disbursing the final $47,500 to Mustin.

On appeal, Ray and TCL claim the trial court erred by denying their motions for directed verdict and judgment notwithstanding the verdict (“j.n.o.v.”). They claim neither defendant had any tort-based duty to the Sutters and, if they did, no proximate causal connection existed between the violation of any duty and the damages the Sutters sought. Having construed the evidence strongly in favor of the jury’s verdict, we must determine whether the Sutters produced any evidence to support their claims. Southeastern Security, supra.

1. (a) Voluntary Undertaking. We find the court properly allowed the jury to determine whether TCL and Ray negligently breached their duty to obtain authorization before disbursing funds. The Sutters correctly state the principle that “[wjhere one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care. [Cit.]” Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991). The evidence supports a finding that Ray, on behalf of TCL, voluntarily undertook the duty to obtain approval from the Sutters before disbursing the $47,500 and breached that duty. An officer of a corporation who personally takes part in a tort committed by the corporation may be held personally liable. See Cherry v. Ward, 204 Ga. App. 833, 834 (1) (a) (420 SE2d 763) (1992).

However, we find no evidence supporting any claim that the voluntary undertaking encompassed more than simply obtaining approval prior to disbursing the funds. The contract between TCL and the Sutters clearly states that TCL took no responsibility for the quality of the work, and that all inspections and appraisals were done solely for TCL’s benefit. Nothing in the testimony or correspondence indicates the Sutters made any request of Ray and TCL other than to obtain the Sutters’ authorization before disbursing funds. Therefore, we find neither Ray nor TCL voluntarily assumed any duty to ensure that materialmen’s liens were paid or that the work was properly completed.

(b) Damages Resulting from Voluntary Undertaking. The Sutters were entitled to recover from Ray and TCL the amounts disbursed without authority, so long as they proved these amounts would not otherwise have been paid to Mustin. See Stelts, supra. The evidence before us supports such a finding. But the Sutters also sought damages resulting from Mustin’s failure to complete the house. Ray and TCL, the Sutters argue, could reasonably foresee that this unauthorized payment would cause Mustin to abandon the job and would result in delays, additional expenses to pay off materialmen’s liens and to complete the house, and additional personal expense for the Sutters. We disagree.

We reject the Sutters’ argument that Ray’s and TCL’s alleged negligent disbursement caused Mustin to abandon the job. Such an argument amounts to pure speculation, especially when considering that Mustin never testified at trial and no evidence showed why he failed to fulfill his contractual obligations. Even though testimony showed lenders often withhold final payment to ensure that builders finish the project, nothing in the record shows the failure to withhold that payment caused Mustin to quit. In determining whether the evidence demanded a directed verdict, this Court must construe all reasonable inferences in favor of the jury’s findings. Southeastern Security, supra. However, “[a]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. [Cit.] The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. [Cit.]” (Punctuation omitted.) Niles v. Bd. of Regents, 222 Ga. App. 59, 61 (2) (473 SE2d 173) (1996). The trial court should have directed a verdict as to any damages other than the actual amounts paid out without authorization and any interest the Sutters were required to pay on the unauthorized advance. See also OCGA § 51-12-9 (damages which are not the legal and natural consequence of an act are not recoverable).

Moreover, regardless of whether TCL “overpaid” Mustin, the builder had an independent contractual duty to complete the work in a timely manner for the fixed price of $235,000 agreed between Mus-tin and the Sutters. Therefore, Mustin’s abandonment of the construction project was an intervening act which, by itself, was sufficient to cause these additional damages. “It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. [Cit.]” (Emphasis supplied.) Union Carbide Corp. v. Holton, 136 Ga. App. 726, 729 (1) (222 SE2d 105) (1975). “To hold that an intervening act was not reasonably foreseeable at the time of the defendant’s negligent conduct is to say that the defendant’s negligence was not the proximate cause of the plaintiff’s injury. [Cit.] Although what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases. [Cit.]” McAuley v. Wills, 251 Ga. 3, 7 (5) (303 SE2d 258) (1983).

We find no evidence supports the Sutters’ argument that TCL and Ray could foresee that its negligent overpayment would cause Mustin to quit the job. Although the Sutters had problems with Mus-tin’s work, these reports of problems did not make it foreseeable that Mustin would not complete the job if he were paid more than he was due at any certain stage of the project. In fact, Ray testified he had trusted Mustin based on his knowledge of Mustin’s other construction projects, and over the prior months he and the Sutters had continued to work together despite their conflicts. Furthermore, although the Sutters made many complaints about Mustin’s work in September when they requested Ray seek approval before making payments, they did approve three subsequent draws Mustin requested. The fact that lenders often hold builders’ feet to the fire by withholding final payment until completion shows such a practice to be good policy for a business; however, the fact that lenders follow this practice does not automatically make it foreseeable that a builder who is paid in advance will not fulfill his contractual duties.

2. Duty to Ensure Payment Is For ‘Work Actually Performed.” Citing cases such as First Fed. &c. of Brunswick v. Fretthold, 195 Ga. App. 482, 485 (394 SE2d 128) (1990), the Sutters argue that TCL and Ray had a tort “obligation to exercise diligence and good faith in the disbursement of construction funds to [Mustin, which] required that payment be made in a timely manner and for work actually performed” (Emphasis supplied.) Id. See also Peterson v. First Clayton Bank &c., 214 Ga. App. 94, 100 (1) (447 SE2d 63) (1994). TCL and Ray contend this language does not create any tort duty from a lender to a borrower, and we agree.

“It is well settled that misfeasance in the performance of a contractual duty may give rise to a tort action. But in such cases the injury to the plaintiff has been an independent injury over and above the mere disappointment of plaintiff’s hope to receive the contracted-for benefit.” (Citations and punctuation omitted.) Bowdish v. Johns Creek Assocs., 200 Ga. App. 93, 94 (3) (406 SE2d 502) (1991). Mere breach of the contract’s terms is insufficient to create a tort cause of action; the defendant must also breach an independent duty created by statute or common law. Mauldin v. Sheffer, 113 Ga. App. 874, 880 (150 SE2d 150) (1966).

We find the “duty” referred to in Fretthold and Peterson to be a contractual one: it is the duty that arises from the lender’s obligation of good faith and fair dealing, which is implied in every contract. See OCGA § 13-4-20; Toncee, Inc. v. Thomas, 219 Ga. App. 539, 543 (4) (466 SE2d 27) (1995). The Sutters have not cited, nor have we found, any independent statutory or common-law requirement addressing how and when builders should be paid loan funds on a construction contract. The contract between the Sutters and TCL spelled out in detail how these loan funds would be advanced. To the extent TCL improperly advanced those funds, the Sutters’ remedy was in contract, not tort. See Hewitt v. Walker, 226 Ga. App. 764 (487 SE2d 603) (1997).

Generally, a construction lender has no independent duty to protect the borrower-homeowner from problems associated with the builder’s work, such as construction defects or the builder’s failure to pay materialmen. See DeCoudreaux v. Mutual Fed. &c. of Atlanta, 216 Ga. App. 503 (455 SE2d 88) (1995) (construction defects); Peterson, supra (materialmen’s liens); Fretthold, supra (materialmen’s liens); Harden v. Abridge, 193 Ga. App. 736 (389 SE2d 6) (1989) (construction defects); Butts v. Atlanta Fed. &c. Assn., 152 Ga. App. 40 (262 SE2d 230) (1979) (construction defects and unfinished work). Contrary to the Sutters’ arguments, we do not find their situation analogous to Jordan v. Atlanta Neighborhood Housing Svcs., 171 Ga. App. 467 (1) (320 SE2d 215) (1984), in which we applied an exception to this general rule. In Jordan, the lender had actually prepared a list of suggested renovations for the borrower, solicited bids on those renovations, monitored the construction, and assured the borrower that “the work was progressing satisfactorily.” Id. at 468. Under those circumstances, we found the lender’s activity had gone “beyond that of the usual and ordinary construction money lender,” making it potentially liable for its negligence in performing those additional activities. Id. at 469. Here, other than the voluntarily-assumed duty discussed in Division 1, TCL undertook no duties beyond that outlined in its contract with the Sutters. That contract specifies that all appraisals and inspections are done solely for TCL’s benefit, disclaims any liability for the contractor’s work, and describes TCL’s relationship to the construction as “solely that of a mortgage lender[.]” Thus, the “exception” outlined in Jordan does not apply here.

3. Having concluded that this case proceeded to the jury on an improper theory of tort liability, and having concluded that the trial court erred in failing to grant a directed verdict on a portion of the damages, we reverse the trial court’s judgment. Because the jury’s verdict does not specify which “duty of care” TCL and Ray violated, we remand this case for a new trial, consistent with this opinion, on issues of liability and damages. See Strickland v. Howard, 214 Ga. App. 307, 310 (2) (447 SE2d 637) (1994) (general verdict returned on improper theory of liability must be reversed).

Judgment reversed.

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

Decided September 8, 1997.

Stewart, Melvin & Frost, Frank Armstrong III, for appellants.

Carey, Jarrará & Walker, Mary R. Carden, for appellees.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A1618.
    GOSS v. THE STATE.
    (491 SE2d 859)
   Ruffin, Judge.

Arnold “Sonny” Goss was indicted on two counts of child molestation, two counts of aggravated child molestation, two counts of aggravated sodomy, and three counts of cruelty to children. The jury found him guilty of both child molestation counts and two counts of cruelty to children, but not guilty of the remaining offenses. The trial court denied Goss’ motion for new trial, and this appeal followed. We affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that the victim in this case is Goss’ nine-year-old niece, M. I. At trial, M. I. testified that Goss raped her when she was eight years old. On the night of the rape, Goss was staying with M. I.’s family. M. I. testified that Goss awakened her during the night and asked her to show him the bathroom. M. I. complied, and when they arrived at the bathroom, Goss closed the door, pulled off her pants, and “put his pickle in [her] ‘gina.” A social worker testified that M. I. used the term “pickle” to refer to the male private part. According to M. L, Goss warned her that if she told anyone about this incident, he would hate her and never come to see her again.

Later that night, Goss awakened M. I. again, took her to the bathroom, laid down on top of her, “put his pickle in [her] ‘gina and moved it up and down.” The next hour, Goss took M. I. into her bedroom and removed her clothing. He then spread M. I.’s legs apart and “moved up and down” on her. M. I. testified that she saw “yellow stuff” coming out of Goss’ “pickle” during the second and third incidents. That same night, Goss awakened her a fourth time, took her back to her bedroom, and “did the same thing again.” M. I. testified that Goss’ actions caused her physical pain.

The next morning, M. I. reported the incidents to Bonnie Angel, her babysitter. Angel testified about her conversation with M. L, who stated that Goss “had messed with her . . . [and] had done something that he shouldn’t have done. . . .” M. I. similarly told Angel’s daughter that Goss had gotten on top of her and “messed with her.” According to Angel, M. I. was crying and scared when she reported the incidents.

The social worker who interviewed M. I. after the incidents also testified. M. I. told the social worker that Goss placed his “pickle in her ‘gina,” made her “suck his pickle,” and placed “his pickle in her butter bean, which was [M. I.’s] rear end.” M. I. further reported that “it hurt her down there in her ‘gina when [Goss] was putting his pickle on her and that it hurt in her butter bean also.”

In addition, the State presented similar transaction testimony from L. I., M. I.’s 17-year-old brother. L. I. testified that Goss touched him in the genital area on several occasions when he was ten or eleven years old. Goss also exposed his penis to L. I. and asked L. I. to touch and kiss his genitals.

Goss testified on his own behalf. He denied touching M. I. in any sexual way or exposing his private parts to her. He further denied sexually touching or exposing himself to L. I. The defense also called the emergency room physician who examined M. I. after the incidents. The physician testified that he found no evidence of trauma or injury to M. I.’s vaginal area or rectum.

1. In his first enumeration of error, Goss argues that the evidence was insufficient to support the jury’s verdict.

“The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. [307], 319-320 [(99 SC 2781, 61 LE2d 560) (1979)].” Gable v. State, 222 Ga. App. 768, 769 (1) (476 SE2d 66) (1996). Under OCGA § 16-6-4 (a), “[a] person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” A person commits the offense of cruelty to children when that person “maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (b).

Viewing the evidence as required, we conclude that the jury was authorized to find Goss guilty beyond a reasonable doubt of two counts of child molestation and two counts of cruelty to children, as alleged in the indictment. See Gables, supra. Although Goss argues that M. I.’s testimony conflicted with other evidence and was not credible, “the weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to [her] own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (Citation and punctuation omitted.) Royal v. State, 217 Ga. App. 459, 460 (1) (458 SE2d 366) (1995).

2. Goss further argues that the trial court erred in admitting similar transaction evidence from L. I., as well as several other children who ultimately recanted their allegations of molestation at trial. According to Goss, the State failed to establish that he committed these independent acts.

The record shows, however, that Goss never objected to the introduction of this evidence at trial. Although he states that he objected at a pretrial similar transaction hearing, that objection does not preserve the issue for appeal. “In cases where a similar transaction hearing is held pursuant to Uniform Superior Court Rule 31.3 (B), the failure to object to the introduction of the similar transaction evidence at trial waives the issue. [Cit.]” (Emphasis supplied.) Jackson v. State, 223 Ga. App. 207, 208 (1) (477 SE2d 347) (1996). See also Jackson v. State, 217 Ga. App. 485, 488 (4) (a) (458 SE2d 153) (1995) (“Although [the defendant] made a lack of similarity objection at the hearing, he waived this ground by failing to make this objection when the similar transaction evidence was introduced at trial. [Cit.]”) (physical precedent only). Accordingly, Goss waived this alleged error by not objecting at trial.

3. In his third enumeration of error, Goss argues that the trial court erroneously admitted into evidence a telephone bill received by M. I.’s family. We find no reversible error.

At trial, Goss testified that he attempted to telephone his girl friend a few times on the night of the incidents, but she did not answer. He also tried to telephone his ex-wife. He could not recall how long he was on the telephone, but testified that it was a “pretty short amount of time[.]” Goss claims that he went to sleep after making these telephone calls and did not wake until the next morning between 8:00 a.m. and 8:30 a.m. Following this testimony, the State introduced the telephone bill over Goss’ hearsay objections. The bill showed telephone calls made from the family residence between 12:24 a.m. and 2:35 a.m. On cross-examination, Goss agreed that he made the calls shown on the bill during that time period.

Goss argues that the State failed to lay a proper foundation for introduction of the telephone bill, which constitutes hearsay, and improperly used this hearsay evidence to impeach his credibility. Even if the trial court erred in admitting the telephone bill, however, we find any such error harmless. Before the bill was discussed at trial, Goss admitted that he made several telephone calls to different individuals during the night and could not specifically recall how long he was on the telephone. He neither denied using the telephone nor testified specifically about the number or length of calls made.

“The Supreme Court of Georgia has adopted the highly probable test when determining if an error is harmless. . . . The proper test [is] . . . whether it is highly probable that the error did not contribute to the judgment.” (Citations and punctuation omitted.) Letlow v. State, 222 Ga. App. 339, 343 (2) (474 SE2d 211) (1996). We find it highly probable that introduction of the telephone bill did not contribute to the judgment. Accordingly, this enumeration of error has no merit.

Decided September 8, 1997.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A97A1862.
    RARY v. THE STATE.
    (491 SE2d 861)
   Johnson, Judge.

A jury found David Vinson Rary guilty of two counts of child molestation involving his twelve-year-old stepdaughter. He appeals from the judgments of conviction entered on that verdict.

1. Rary asserts the trial court erred in admitting evidence of two previous incidents involving other girls as similar transactions.

(a) In the first incident, which involved a 12-year-old friend of his stepdaughter who was spending the night at Rary’s house, Rary argues that the evidence did not satisfy the second prong of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), which requires that there be sufficient evidence to establish that the accused committed the independent offense. The girl testified at trial that after the girls had watched a movie, Rary told them to go to bed. After she had gone to sleep, she was awakened by someone grabbing her breast and massaging it. When she tried to turn over, she was “flipped back over” and her breast was grabbed again. When she told the man to stop, he got up and walked away. Although she did not look at the perpetrator’s face because she was scared and confused, she was able to see a man walking away. She testified that Rary was the only male in the house. Despite Rary’s own testimony that two other men were at the house on the night this incident occurred, “[a]bsolute proof is not required that a defendant committed the offense in a similar transaction. . . . Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it.” (Citations and punctuation omitted.) Hefner v. State, 224 Ga. App. 612, 613-614 (2) (481 SE2d 599) (1997). The trial court did not err in finding the evidence identifying Rary as the perpetrator of the similar transaction to be sufficient.

(b) The second incident admitted as a similar transaction involved the 19-year-old daughter of Rary’s friend. Rary argues with regard to this incident that even if the victim’s testimony that he grabbed her breasts while she was sleeping was true, the acts constitute a sexual battery, not child molestation, and therefore were dissimilar acts and should not have been admitted. We disagree. In Ryan v. State, 226 Ga. App. 180, 181 (2) (486 SE2d 397) (1997), in which a similar argument was raised, we noted that the crimes need not be identical. “In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both acts and sufficient similarity or connection between the independent crime and the offenses charged.” (Citations and punctuation omitted; emphasis supplied.) Id. Here, the acts were identical to one of the charges in the indictment, it was only the age of the victim which determined how the behavior was categorized. The trial court did not err in admitting this event as a similar transaction.

2. Rary asserts the trial court erred in refusing to allow him to ask his ex-wife about a comment she allegedly made about not trusting one of his friends around their daughters. The state objected to the question on relevance grounds. Rary accepted the court’s hypothesis that the evidence was being offered to negate the circumstantial evidence regarding the identity of the perpetrator of the incident discussed in Division 1 (a). “The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citations and punctuation omitted.) Merritt v. State, 211 Ga. App. 228, 230 (4) (438 SE2d 691) (1993). Here, the trial court determined that whether the witness had made the comment was not relevant, presumably because even if the answer to the question had been yes, this witness had already testified that the person was not at the house on the night the similar incident occurred. The trial court’s decision to exclude the question was not an abuse of discretion and will not be disturbed by this Court.

3. In a third enumeration of error, Rary asserts: “[t]he trial court erred by not allowing the defense to present testimony concerning the alleged victim’s mother having threatened to accuse her former husband of child molestation of the victim in the case at bar if the former husband did not do what she wanted.” “The admission of evidence is a matter which rests largely within the sound discretion of the trial court.” Haynes v. State, 180 Ga. App. 202, 203 (3) (349 SE2d 208) (1986). The defense proffered the testimony of a man who had been married to the victim’s mother before Rary. He was going to testify that in order to keep him from leaving the relationship at one point, the victim’s mother told him, essentially, “we are going to be together or you will be in jail,” threatening to falsely accuse him of child molestation. The testimony was being offered to show the victim’s mother’s propensity to lie or exaggerate matters regarding child molestation.

Decided September 8, 1997.

Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

After an extended discussion outside the presence of the jury, the court observed that the purpose of the testimony was to discredit Mrs. Rary’s testimony generally and establish that she was unworthy of belief and concluded that this proffered testimony did not fall within any of the recognized methods of impeaching a witness. In excluding the testimony, the trial court noted that, in addition to being an improper method of impeachment, a report of previous threat to make a false statement was not relevant to any other issue presently before the court.

Haynes, supra, provides a useful review of the acceptable methods of impeachment in Georgia. Id. at 203. Without consulting authority, the trial judge ably explained four out of the six methods outlined in Haynes, omitting only impeachment by incapacity of lack of knowledge or opportunity to observe, and absence of religious belief, neither of which were applicable to the proffered evidence. The trial court’s determination that the proffered evidence was not admissible was not an abuse of discretion and will not be disturbed.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A97A2164.
    ROBERSON v. THE STATE.
    (491 SE2d 864)
   Eldridge, Judge.

On March 20, 1996, defendant Jay Roberson was stopped for speeding in Murray County while he was driving a tractor-trailer. Roberson holds a commercial motor vehicle driver’s license from North Carolina. As the arresting officer was in the process of issuing a Uniform Traffic Citation (“UTC”) for speeding, he detected an odor of alcohol on Roberson. He administered an aleo-sensor test, and Roberson registered .09 percent. The officer placed Roberson under arrest for driving under the influence (“DUI”) while operating a commercial motor vehicle. Roberson was given the implied consent warnings codified in OCGA § 40-5-67.1 (b) (3). Roberson consented to further alcohol testing and was transported to the Murray County Sheriffs Department, where an Intoxilizer breath test was performed. The test registered a reading of .08 percent. Roberson was issued a UTC for operating a commercial motor vehicle while under the influence of alcohol.

Roberson filed a motion in limine to exclude the results of the Intoxilyzer test, asserting several grounds for exclusion. The trial court originally granted the motion in limine, but then denied it following the State’s motion for reconsideration. On May 21, 1997, Roberson was convicted of speeding and DUI in a non-jury trial. This appeal follows.

1. In his first enumeration of error, Roberson asserts that he was misinformed by the arresting officer about the consequences of his refusal to submit to the Intoxilyzer test, so that the trial court should have excluded the test results as evidence at trial. There is no dispute that Roberson was given the implied consent notice codified in OCGA § 40-5-67.1 (b) (3) in its entirety. OCGA § 40-5-67.1 (b) (3) reads in relevant part: “If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year.” The issue is whether this warning is a correct statement of the consequences for a refusal to submit to alcohol testing.

Roberson asserts that this Court’s holding in State v. Coleman, 216 Ga. App. 598 (455 SE2d 604) (1995), is dispositive on this issue. We disagree, as Coleman involved a defendant with a standard driver’s license issued by another state, not a commercial driver’s license, and therein lies the critical difference which distinguishes this case.

In Coleman, the defendant, who had an out-of-state driver’s license, was stopped for DUI. The arresting officer read the defendant an implied consent warning which stated, in part: “Under OCGA § 40-5-55 and 40-5-153, you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test.” Id. at 599. The trial court granted the defendant’s motion in limine to exclude the results of his DUI breath test, finding that the warning was inaccurate, constituted “unlawful coercion,” and deprived the defendant of making an informed choice about whether or not to submit to the DUI test. Id. “Georgia is without authority to revoke or suspend a non-resident’s [motorist] driver’s license; it may revoke or suspend only the non-resident’s privilege of driving a motor vehicle on the highways of this state” (Emphasis in original.) Id. This Court opined that the State’s implied consent warnings should include the limiting language “at least on the highways of this state.” Id.

During the 1995 legislative session, the Georgia Legislature codified mandatory informed consent language, providing specific warnings for three different classifications of drivers: drivers under the age of 18; drivers over the age of 18; and drivers of commercial vehicles. Ga. L. 1995, p. 1160, §§ 1-3. Each warning was “tailored to the particular driver’s specific liability under the law,” i.e., specifying prohibited blood alcohol levels according to the status of the driver. Legislative Review, 12 G.S.U. L. Rev. 289, 292 (Oct. 1995); see OCGA §§ 40-6-391 (a), (i), (k); 40-6-392 (b), (c). The statute was amended in 1997 to substitute the age of 21 for the age of 18. OCGA § 40-5-67.1 (b).

At the time of Roberson’s arrest, the informed consent warnings for drivers of non-commercial vehicles contained the following sentence: “If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year.” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (1), (2). Clearly, the Georgia Legislature intended to codify the language recommended by this Court in Coleman, supra. Notably, however, no such language appears in the notice for commercial vehicle drivers; the relevant part of the statute states as follows: “If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year.” OCGA § 40-5-67.1 (b) (3); see also OCGA §§ 40-5-151 (a) (2); 40-5-153 (c). This is the exact language read to the appellant at the time of his arrest.

Based on the legislature’s intentional omission of limiting language in subsection (b) (3), they clearly and correctly recognized that the Coleman, supra, analysis does not apply to commercial vehicle driver’s licenses. Further, they recognized the effect of federal legislation that mandates, as a direct consequence of Georgia’s disqualification of errant commercial drivers, a disqualification of commercial driving privileges for at least one year, not only in Georgia, but in the entire United States.

In 1989, the Georgia Legislature enacted the Uniform Commercial Driver’s License Act (“Georgia Act”), OCGA § 40-5-140 et seq., in order to implement the mandatory provisions of the federal Commercial Motor Vehicle Safety Act of 1986 (“Federal Act”). OCGA § 40-5-141. The Georgia Act states that it “shall be liberally construed to promote the public health, safety, and welfare.” OCGA § 40-5-141.

The Federal Act provides that any person holding a commercial driver’s license (“licensee”) who “violates a State or local law relating to motor vehicle traffic control (other than a parking violation) in any other State shall notify” an official in the state which issued the commercial driver’s license (“issuing state”) and the licensee’s employer. (Emphasis supplied.) 49 USC App. § 2702 (a) (1). Further, the Federal Act requires that a licensee who “loses the right to operate a commercial motor vehicle in a State for any period, or who is disqualified from operating a commercial vehicle for any period shall notify his or her employer of such . . . lost right, or disqualification, within 30 days.” (Emphasis supplied.) 49 USC App. § 2702 (b).

The Federal Act then states that “no employer shall knowingly allow, permit, or authorize an employee to operate a commercial motor vehicle in the United States during any period ... in which such employee has a driver’s license suspended, revoked, or cancelled by a State, has lost the right to operate a commercial motor vehicle in a State, or has been disqualified from operating a commercial motor vehicleU” 49 USC App. § 2703 (l).

As such, under the mandatory provisions of the Federal Act, Georgia’s disqualification of a driver from operating a commercial motor vehicle, based on his or her refusal to submit to alcohol testing, in fact does disqualify the driver from driving anywhere in the United States for at least one year. Therefore, Georgia’s informed consent statute is an accurate statement of the consequences of refusing such testing. Far from being coercive, as Roberson asserts, the warning gives sufficient information for drivers of commercial vehicles to make truly informed decisions about whether to submit to testing and the impact of that decision on their careers. The more objectionable alternative is to minimize the consequences of the driver’s refusal, only to surprise the driver later with an unanticipated mandatory disqualification. See Coleman, supra at 601, n. 1 (McMurray, P. J., dissenting) (noting that a more limited warning would have been “deficiently misleading”).

There was no error in the trial court’s denial of Roberson’s motion in limine on this basis.

2. Roberson next contends that he was given misleading information which deprived him of the ability to decide whether or not to secure an independent chemical analysis at the time of his arrest. Roberson specifically asserts that the arresting officer told him that “if you want an independent test, by law, I have to take you to get one . . . (but) I would recommend you not doing it. It would record a little bit higher.” Roberson also asserts that the officer who administered the Intoxilyzer test told him the same thing. However, both officers denied making statements of that nature to Roberson. It is the duty of the factfinder, not this Court, to judge the credibility of the witnesses. See OCGA § 24-9-80. We will not disturb the trial court’s decision to believe the officers’ testimony over that of Roberson. There was no error in the trial court’s denial of Roberson’s motion in limine.

3. Finally, Roberson asserts that no evidence was presented that the Intoxilyzer utilized by the State met the standards required by OCGA § 40-6-392. This assertion was first presented in Roberson’s motion in limine, along with the contention addressed in Division 2, supra. However, this issue was never addressed during the hearing on the motion in limine, during which Roberson raised the issue in Division 1, supra, for the first time. Following the hearing, the trial court granted appellant’s motion in limine. The State moved for the court’s reconsideration, and Roberson responded by asserting the issues in Divisions 1 and 2, supra; he apparently abandoned the issue underlying this enumeration. The trial court then reconsidered and denied the motion in limine. Roberson did not raise the issue regarding the requirements of OCGA § 40-6-392 until after the evidence had been admitted and presented to the trial court; he attempted to revive the issue during his argument on his motion for a directed verdict of acquittal.

We find that Roberson waived his right to appeal this issue. “It is well settled that no issue is presented for appellate review regarding a question of evidence admissibility as to which the trial court was not called to rule upon at trial. [Cits.] Moreover, [defendant] by his own trial tactics and procedures failed to present the issue in proper form for a definitive ruling by the trial court and, additionally, lulled the trial court into issuing no ruling on this issue. A party cannot reap the benefit of any error caused or aided by his own trial tactics, procedure or conduct. [Cit.]” Simms v. State, 223 Ga. App. 330, 332 (477 SE2d 628) (1996).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided September 8, 1997.

Swift, Currie, McGhee & Hiers, Michael C. Cherof, for appellant.

Kermit N. McManus, District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

       “A person shall not drive or he in actual physical control of any moving commercial motor vehicle while there is 0.04 percent or more by weight of alcohol in such person’s blood, breath, or urine.” OCGA § 40-6-391 (i).

       The statute also states that “[i]f the results indicate an alcohol concentration of 0.04 grams or more, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year.” OCGA § 40-5-67.1 (b) (3).

       49 USC App. § 2701 et seq., Pub. L. 99-570, Title XII. See also Bowman v. Knight, 263 Ga. 222, n. 1 (430 SE2d 582) (1993).

       The Federal Act also mandates that both the United States’ Secretary of Transportation and the issuing state “shall disqualify from operating a commercial motor vehicle for a period of not less than 1 year each person . .. who is found to have committed a first violation ... of driving a commercial motor vehicle while under the influence of aleohol[J” (Emphasis supplied.) 49 USC App. §§ 2707 (a) (1) (A) (i) (I); 2708 (a) (15) (A) (i). Subsequent offenses are addressed in 49 USC App. §§ 2707 (a) (2) and 2708 (a) (16).


text:
    A97A2352.
    CANDLER HOSPITAL, INC. v. DENT et al.
    (491 SE2d 868)
   Eldridge, Judge.

Ruth Dent, individually, and Kim Birge, as administrator of the Estate of William H. Dent, deceased, brought a malpractice action against Candler Hospital, Inc., for the wrongful death, pain and suffering, medical expenses, funeral and other expenses of the deceased. They attached an appropriate expert affidavit to the complaint. Candler Hospital, Inc., defendant-appellant, timely answered. In the consolidated pre-trial order entered by the parties and trial court, the defendant indicated that it would file “a Motion in Limine with regard to the hospital bill from Candler Hospital, Inc. to exclude the $69,955 contractual adjustment which represents the amount of the Candler Hospital bill that was not paid by Medicare and a motion for attorney fees and expenses.” On March 13, 1997, defendant filed its motion in limine to exclude its write-off of the medical expenses not paid by Medicare, on the grounds that such write-off of the unpaid hospital bill was not a collateral source. The trial court denied the defendant’s motion in limine, finding that the write-off was a collateral source and granted a certificate of immediate review. Notice of appeal was filed on July 1, 1997, after we granted discretionary appeal on June 26, 1997.

Candler Hospital, Inc.’s sole enumeration of error is that the trial court erred in denying its motion in limine. We do not agree.

The common law rule in Georgia bars the defendant from presenting any evidence as to payments of medical, hospital, disability income, or other expenses of a tortious injury paid for by a plaintiff, governmental entity, or third party and taking credit towárds the defendant’s liability in damages for such payments, because a tortfeasor is not allowed to benefit by its wrongful conduct or mitigate its liability by collateral sources provided by others. Cincinnati &c. Co. v. Hilley, 121 Ga. App. 196, 201 (173 SE2d 242) (1970). The common law rule made no exceptions for the introduction of evidence as to a collateral source, which rule remains applicable today. McDonald v. Simmons, 207 Ga. App. 692 (428 SE2d 690) (1993). The General Assembly sought to modify the common law rule, not to prevent recovery for all tort damages, but to inform the jury that the plaintiff had already received such economic benefits for whatever purpose that the jury sought to use such information, i.é., “poison the jury’s minds.” The Supreme Court of Georgia struck OCGA § 51-12-1 (b) down as unconstitutional. Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), overruled on other grounds, Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992).

The trial court did not err in denying defendant’s motion in limine. The plaintiff can prove all damages, argue, itemize on a blackboard, and receive a charge on the recovery of such damaiges undiminished by any amount written off by the defendant.

However, in the event that the plaintiff recovers a special verdict that awards damages for medical expenses previously written off by the defendant, the defendant is entitled to a set-off or credit against the specific award of medical expenses in the verdict prior to the entry of the judgment in the amount of any write-off that the defendant made to the total medical expenses. If the jury makes no award of medical expenses as damages or there is a general verdict, then it would not be ascertainable whether such special damages for medical expenses were awarded and the defendant would not be entitled to a set-off against a general'verdict for damages.

Georgia, as part of its common law and public policy, has always prohibited a plaintiff from a double recovery of damages; the plaintiff is entitled to only one recovery and satisfaction of damages, because such recovery and satisfaction is deemed to make the plaintiff whole. Where damages are special and ascertainable and the defendant or its privies, indemnitor, or insurers have paid the medical expenses prior to judgment, in whole or in part, a set-off against such special damages, specifically identified and awarded in the verdict, is mandated to prevent a double recovery. OCGA §§ 9-2-4; 51-12-4; Ford Motor Co. v. Lee, 237 Ga. 554, 556 (229 SE2d 379) (1976); Southern R. Co. v. Jordan, 129 Ga. 665 (2) (59 SE 802) (1907); see also Rampell v. Williams, 217 Ga. App. 292, 294 (2) (457 SE2d 224) (1995); Green v. Thompson, 208 Ga. App. 609, 610 (431 SE2d 390) (1993); Mathis v. Melaver, Inc., 206 Ga. App. 392, 394 (425 SE2d 401) (1992); Olden Camera & Lens Co. v. White, 179 Ga. App. 728, 729 (1) (347 SE2d 696) (1986); Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 881-882 (209 SE2d 676) (1974); McLendon Bros. v. Finch, 2 Ga. App. 421, 422 (3) (a), 426-427 (58 SE 690) (1907). “An injured person can have but one satisfaction for his injuries; and therefore the amount paid by the tortfeasor . . . will be regarded as a satisfaction pro tanto as to the joint tortfeasors.” (Citation and punctuation omitted.) Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 59 (60 SE2d 770) (1950). Thus, plaintiff can recover from the jury all special damages provable, but cannot receive in judgment again what has already been paid by the defendant or on the defendant’s behalf by an insurer.

Decided September 8, 1997.

Oliver, Maner & Gray, William P. Franklin, Jr., Patricia T. Paul, for appellant.

Ronald C. Berry, for appellees.

Neither party shall divulge to the jury the legal duty of the trial court to set-off against any special award of such special damages for medical expenses in the verdict such specific amount, because such is a legal matter for the trial court, is outside the province of the jury, is irrelevant and immaterial to the determination of damages or any other issue at trial, and would be highly prejudicial to both the plaintiff as a prior recovery of damages, which is prohibited under OCGA § 51-12-1 (b), and the defense as a possible admission of liability.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       The foregoing cases illustrate the diversity of ways that the issue of “double recovery” can arise, as well as the consistency of the law, as to all cases under any theory, in prohibiting anything that exceeds a full and complete satisfaction of a single injury.


author: Eldridge, Judge. Birdsong, Presiding Judge,

text:
    A97A1069.
    BBB SERVICE COMPANY, INC. et al. v. GLASS.
    (491 SE2d 870)
   Eldridge, Judge.

As an alleged result of negligent maintenance, appellee Shirley Glass slipped and fell in a restaurant owned and operated by appellants BBB Service Company, Inc., and Dale Seefeldt d/b/a Wendy’s Old Fashioned Hamburgers; her hip was broken in the fall. Appellee brought suit against appellants for actual and punitive damages, contending that, due to the alleged improper maintenance, appellants were actively negligent in operating the restaurant with unsafe, slippery, and defective floors, and that appellants knew of the condition but failed to remedy it. Appellants’ subsequent motion for summary judgment was denied by the trial court, which found that material issues of fact existed that should be tried to a jury. We granted appellants’ application for review and take this opportunity to affirm the order of the trial court and explain the evidentiary posture of the instant case which distinguishes it from those cases cited by appellants, Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), and Hall v. Cracker Barrel Old Country Store, 223 Ga. App. 88 (476 SE2d 789) (1996). Pertinent to appellee’s complaint, the facts of record are as follows.

After eating lunch at Wendy’s, appellee walked down a brick tile hallway to the restroom area; she slipped and fell just outside the ladies’ restroom door, where there was nothing visible on the floor to warn appellee of danger. Appellee testified that, while lying on the floor unable to get up, she ran her hand over the brick tile and noticed that the floor felt “very slick”; earlier, appellee had noted and then disregarded a slippery spot on the floor in a different area of the restaurant. Jean Brown, appellee’s co-worker, testified that she came to appellee’s aid, and “I ran my foot over the floor, and I had on rubber-soled flat shoes, and I noted that the floor was slippery”; earlier, Brown had skidded on the floor as she was walking to a table.

The manager of Wendy’s, Bruce Payton, approached to render aid to appellee. Brown and appellee questioned him about the slippery condition of the floor and its danger to customers. According to Brown’s testimony, Bruce Payton agreed that the floors were slippery. “[H]e said it was something they put on the floors, that Wendy’s has them put on the floors, but it wasn’t wax. . . . He didn’t say how long ago it was, but that he had talked to, I guess you call it the corporate office, about the floors, about the condition of the floors, but that they did not feel that there was any need to make any changes.” Appellee Glass also testified that Bruce Payton had agreed that the floors were slippery. “He named some chemical. I don’t remember exactly what he said the chemical was that they put on the floors. . . . He said, we have talked to the corporate office before about the floors, and they will not do anything about them. . . . They [corporate office] were going to continue doing the same thing that they were doing and they would not change the floors.”

In support of its summary judgment motion, appellants offered the testimony of restaurant manager Bruce Payton, who denied that he had ever made any statements to appellee or Brown regarding the floor, its condition, or its maintenance, and denied making any statements concerning conversations with Wendy’s corporate office. Pay-ton also testified that the “policy” for floor maintenance at the restaurant “is pretty consistent with Wendy’s International.” Payton testified regarding the Wendy’s International “policy and procedures” for sweeping, mopping, and cleaning the floor: “[t]he floors are cleaned at night after close with Power Foam, deck brushed, which means scrubbed, and then it’s squeegeed off and dry mopped. It’s dry mopped again the next morning before we open around 9:00 o’clock.” Bruce Payton stated that store employees do the mopping, sweeping, and vacuuming.

Appellants also submitted the affidavit of Jack Helton, vice president of the company that manufactures and distributes Power Foam, regarding the composition, properties, and proper usage of the product. Helton testified that Power Foam is a commercial degreaser, which acts to “emulsify and neutralize dirt and grease from hard surfaces”; obviously, such product creates an emulsion of grease and dirt when it is applied to the floor. Helton testified regarding the proper removal of Power Foam, which entails “removal with squeegee and rinsing with clear water”; clearly, subsequent dry mopping would simply spread the grease emulsion, if it is not first removed properly. Helton testified that Power Foam contains no properties, in and of itself, that would cause a floor to become slippery; however, the non-slippery character of the degreaser itself would be irrelevant if the resultant greasy emulsion is not properly removed, which event could support a claim of active negligence.

Further, in response to appellee’s interrogatory “[i]dentify defendants’ maintenance practice in sweeping, mopping and surfacing/waxing the flooring in the area where plaintiff fell,” appellants responded that “[t]he floor in this area is cleaned with warm water and a degreaser. During regular business hours, we sweep the floors hourly and dry mop spills immediately using only clear warm water. Then in the late afternoon we dry mop all floors. The brick tile are not waxed.” Held:

Trial and appellate judges should not take summary judgment lightly, for what is at stake is of constitutional magnitude. “When a trial court or appellate court determines that summary judgment or a directed verdict is appropriate, it is in effect a determination that a party is not entitled to his or her right to a trial by jury even after a demand for jury trial has been made. See Ga. Const, of 1983, Art. I, Sec. I, Par. XI; OCGA § 9-11-38.” Service Merchandise v. Jackson, 221 Ga. App. 897, 899 (473 SE2d 209) (1996); see Lingo v. Kirby, 142 Ga. App. 278 (236 SE2d 26) (1977).

On a motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of material fact is upon the movant. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (to prevail at summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact” (emphasis supplied)); accord Alterman Foods, supra at 625; Hall, supra at 89. This has often been referred to as “piercing” the allegations of the complaint, which is an apt metaphor since, if accomplished, the life of the complaint is in jeopardy through such exposure. This burden placed upon the movant “may be,” if it can be, discharged by pointing out by reference to the record that there is an absence of evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. Lau’s Corp., supra at 491.

Contrary to the opinion of the special concurrence, the Supreme Court of Georgia’s decision in Lau’s Corp. did not, and could not, alter the statutory burden and showing that must be made in order to prevail at summary judgment, i.e., a defendant’s burden to demonstrate the nonexistence of a genuine issue of material fact in support of an essential element of plaintiff’s claim. OCGA § 9-11-56 (c). Such alterations must be accomplished through the legislative process, not through judicial mandate. Oxford v. J. D. Jewell, Inc., 215 Ga. 616, 620-621 (112 SE2d 601) (1960); Beall v. Beall, 8 Ga. 210, 228-229 (1850).

What Lau’s Corp. did do that may be considered a “watershed” is establish the precedent that a defendant may meet its burden of demonstrating the nonexistence of a material issue of fact by showing an absence of evidence of record in support of an essential element of the plaintiff’s claim. Lau’s Corp., supra at 495. The Lau’s Corp. Court reasoned that, since a defendant is not required to produce evidence at trial which affirmatively negates (proves the opposite of) an essential element of the plaintiff’s case, he should not be required to put forward such evidence as movant in a motion for summary judgment in order to disprove plaintiff’s case. Lau’s Corp., supra at 495. Prior to Lau’s Corp., our appellate courts placed upon the defendant a burden to “affirmatively” and “conclusively” negate an element of the plaintiff’s case. See, e.g., Ryder Truck Rental v. Carter, 189 Ga. App. 43, 44 (374 SE2d 830) (1988) (defendant has the “burden of negating conclusively at least one of the essential elements of the plaintiff’s case”); Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637) (1987) (defendant has “additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint”); accord Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465) (1983). Thus, Lau’s Corp. changed how a defendant may discharge his statutory burden, but did not alter the fact that he must discharge his statutory burden in order to prevail on summary judgment. It was the requirement of negating an element of the plaintiff’s case through the production of “affirmative, conclusive” evidence and the line of cases standing therefor that was overruled in Lau’s Corp. at 495, not the statutory burden compelling the defendant to demonstrate the nonexistence of an issue of material fact in support of an essential element of plaintiff’s claim, which burden is discussed in Lau’s Corp. at 491. Repeated efforts in decisions authored by the special concurrence to combine the two discussions and concepts on pages 491 and 495 of Lau’s Corp. serve only to confuse. Under Lau’s Corp., supra at 495, a movant for summary judgment must still “disprove” an essential element of the plaintiff’s claim, but he need not do so through the introduction of affirmative, conclusive evidence proving the opposite of the challenged element of the non-moving party’s case. Id. (defendant not required to establish that its alleged negligence was not the cause of plaintiff’s injuries). A demonstration, via the record, of the nonexistence of an issue of material fact in support of an essential element of plaintiff’s claim will suffice to “disprove” such claim and discharge the defendant’s burden.

It also must be understood that the holding in Lau’s Corp. permitting a defendant to meet his statutory burden by showing an absence of evidence to support an issue of material fact as to an essential element of plaintiff’s claim does not shift the burden to plaintiff and require the plaintiff to conclusively prove its case at summary judgment or risk defendant’s ability to demonstrate an “absence” of evidence in support thereof. For example, a defendant has the burden at trial to prove any affirmative defenses, such as contributory negligence and comparative negligence. Thus, a defendant cannot prevail at summary judgment by pointing out an “absence” of evidence disproving such affirmative defenses, with regard to which plaintiff had no burden in the first place. Hodge v. Sada Enterprises, 217 Ga. App. 688, 691 (458 SE2d 876) (1995). That a plaintiff’s evidentiary requirements should be no more stringent than a defendant’s on summary judgment, wherein the defendant has the burden of proof as movant, should be apparent to even those whose approach to summary judgment may most charitably be deemed as result-oriented. For this reason, too, a defendant’s bid to demonstrate an absence of evidence to support an essential element of the plaintiff’s case is not met through the introduction of conflicting evidence or by demonstrating weakness in the plaintiff’s case; it is satisfied by showing a complete absence of any evidence (i.e., “no evidence”; “nonexistence”) as to an essential element of plaintiff’s claim. Lau’s Corp., supra at 491 (“documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case” (emphasis supplied)).

Moreover, it is only after a defendant has met the burden to show the nonexistence of a material issue of fact as to an essential element of plaintiff’s claim that any burden is placed upon the plaintiff; prior to a trial court’s determination that a defendant has “pierced” the pleadings, there is no duty .upon the plaintiff. Lau’s Corp., supra at 491 (¿/the moving party discharges the burden to show an absence of material issues of fact, then the nonmoving party cannot rest on pleadings but must point to specific evidence giving rise to a triable issue); accord Alterman Foods, supra at 625. Often lost in this process is the requirement that all evidence must be construed most strongly against the party seeking summary judgment and all favorable inferences belong to the non-moving party. Lau’s Corp., supra at 491. Clearly, then, summary judgment is not a proceeding in which the trial court weighs and evaluates the record and then determines the merits of the case based upon which party has produced the most compelling evidence therein. Instead, the trial court, viewing all the evidence in a light most favorable to a denial of summary judgment, determines only if there is no evidence of record at all to create a jury issue as to an essential element of the plaintiff’s claim, thereby making the defendant entitled to summary judgment as a matter of law, not fact. OCGA § 9-11-56 (c).

Obviously, to the extent that Coffey v. Wal-Mart Stores, supra at 827, Blake v. Kroger, supra, and Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974), conflict with Lau’s Corp. and OCGA § 9-11-56, they are not valid precedent.

With the above provisions in mind, appellant Wendy’s had the burden to establish the nonexistence of a material factual issue in support of an essential element of plaintiff’s claim. OCGA § 9-11-56 (b), (c); Lau’s Corp., supra at 491; Alterman Foods, supra at 625. Accordingly, this- Court finds that appellants’ summary judgment motion fails on two fronts that we will address in inverse order: (1) the evidence introduced by appellee was sufficient to raise material issues of fact for trial; and (2) in drawing all inferences favorable to appellee, appellants’ evidence failed to pierce the allegations of the complaint so as to support its motion for summary judgment.

1. Appellants claim that the evidence introduced in support of its summary judgment motion demonstrated that its floor is maintained under industry standards and is not treated with anything that would cause appellee to slip and fall when the commercial degreaser used on its floors is properly applied and removed. This proof, appellants contend, is sufficient to warrant summary judgment as a matter of law, since appellee proved only that she fell, without proving that appellants were “negligent either in the materials . . . used in treating the floors or in the application of them.” Alterman Foods, supra at 624. Appellants contend that the instant case is controlled by Alterman Foods and Hall and cite both opinions for the proposition that proof of a fall establishes nothing, i.e., “proof of nothing more than the occurrence of the fall Is insufficient to establish the proprietor’s negligence.” (Punctuation omitted.) Hall, supra at 90. We agree that the instant case is controlled by the cited authorities, but cannot agree with appellants’ application thereof in connection with the facts of this case.

Alterman Foods and Hall stand for nothing if not for the proposition that proof of a fall alone is insufficient to prove negligence. In Alterman Foods, the court was faced with evidence that showed only that plaintiff fell; plaintiff “did not notice the floor to be any more slippery than it had been on any other day she had been in the store[;] she did not see what she had slipped on[;] she did not know if there was a foreign substance on the floor which had caused her fall or if her fall was due to the slipperiness of the floor itself.” Alterman Foods, supra at 621. Plaintiff “merely stated that she slipped and fell, but that she could not determine what it was that caused her fall.” (Emphasis in original.) Id. at 624. Further, deposition testimony from persons present at the time showed that there was nothing “unusual about the floor.” Id. at 621. Finally, plaintiff had a physical condition which could have caused the fall. Id. In Alterman Foods, the plaintiffs fall was the only evidence upon which to base her claim of negligence, and “[i]t cannot be inferred from a silent record that defendant negligently maintained its floor.” Id. at 625.

The same scenario was presented to this Court recently in Hall, wherein the plaintiffs evidence demonstrated only that she fell and that the floor “just felt slippery.” Hall, supra at 90-91. In Hall, the evidence failed to raise a material issue of fact that the floor was slippery; no evidence was introduced to demonstrate that the cleaning compound utilized contained a degreaser which “emulsified” grease and required a proper method of removal; and no evidence was introduced to demonstrate that negligent application or removal of the degreaser would, in fact, leave the floor slick. In Hall, no viable evidence, other than the fall itself, was introduced to rebut the defense evidence that a defective condition did not exist; that the care of the floor was not negligent; and that the proprietor had no actual or constructive knowledge of the alleged hazard. Id. at 92.

However, while “[falling and injuring one’s self proves nothing,” Alterman Foods, supra at 625, proof of a fall, in conjunction with other evidence, can be circumstantial evidence of negligence so as to raise a jury question. The dearth of additional evidence in both Alterman Foods and Hall is not the situation in the case before us, wherein appellee offered deposition testimony of her own, as well as that of a witness, showing that the floor was, in fact, slippery; that appellants’ restaurant manager knew that the floor was slippery and had so informed the “corporate office”; that appellants put a “chemical” on the floor that made it slippery; and that appellee fell. Even without the restaurant manager’s statements, the deposition testimony of witness Jean Brown that she ran her rubber-soled shoe over the floor area where the fall occurred, that the floor was, in fact, slippery, and that she had skidded on the floor earlier corroborated appellee’s testimony that the slippery floor caused her fall. This testimony would clearly provide sufficient evidence of facts, other than the fall itself, so as to take the instant case outside the holding of Alterman Foods, supra, thereby defeating appellants’ motion for summary judgment based thereon. See Martin v. Sears, Roebuck & Co., 253 Ga. 337 (320 SE2d 174) (1984) (plaintiff’s ability to feel excessive wax as she walked across the floor was sufficient to defeat a motion for directed verdict); see also Hall, supra at 93 (affidavit from co-worker who had slipped contemporaneously with plaintiff would have provided sufficient evidence to overcome.summary judgment).

Appellants, again citing Alterman Foods and Hall, contend that appellee cannot survive the motion for summary judgment because appellee failed to show that appellants were “negligent either in the materials [it] used in treating the floor or in the application of them.” Alterman Foods, supra at 624; Hall, supra at 90. Again, we agree with appellants regarding the substance of the citations from Alterman Foods and Hall, but find that appellants’ argument is incorrect.

Alterman Foods and Hall do not place an impossible burden upon a plaintiff to provide direct evidence of the misapplication of a floor maintenance product in order to survive a motion for summary judgment where defense evidence is presented showing compliance with industry standards in floor care. A case of negligence can “be made by circumstantial evidence.” Chapman v. Turnbull Elevator, 116 Ga. App. 661, 665 (158 SE2d 438) (1967). The “evidence may be direct evidence which will carry the case to the jury. It may also be circumstantial evidence which is inconsistent with opposing direct positive testimony as long as it also tends in some proximate degree to establish the conclusion projected while rendering less probable all inconsistent conclusions.” Menke v. First Nat. Bank of Atlanta &c., 168 Ga. App. 495, 502-503 (309 SE2d 835) (1983) (Deen, P. J., concurring specially). Allowing a defendant company to win at summary judgment because the plaintiff cannot provide direct evidence to contradict defendant’s proof that it maintains its floor pursuant to industry standards would permit a “drift toward a [non-jury] issue in every ‘slip and fall’ case.” See Alterman Foods, supra at 621.

For example, in the case sub judice, appellee would never be in a position to witness appellants’ floor being cleaned after hours so as to have personal knowledge regarding the floor care product utilized, its application, or its removal in order to rebut evidence of compliance with industry standards. Further, obtaining testimony from one in a position to know, one who would jeopardize employment by testifying for a plaintiff regarding a defendant’s floor care, is unlikely at best. It is for this reason that proof of negligence in either the materials used in treating a floor or in the application and removal of materials, such as a degreaser, will most often be proved by circumstantial evidence. In the case before us, appellants’ own evidence showed that its floor, if properly treated, is not slippery; since appellee presented evidence that the floor was slippery and that she fell, such is circumstantial evidence that the floor was not properly treated. Thus, appellee’s fall, in conjunction with other evidence demonstrating the tangibly slippery condition of the floor at the time of her fall, is sufficient to create a jury issue as to whether appellants were negligent in either the material used in treating the floors or in its application, without direct evidence thereof.

So, we conclude that, while appellants may, or may not, win a jury trial by showing that its floor maintenance meets or exceeds industry standards, summary judgment is not so won in the face of the evidence in the instant case, more than the fall itself, demonstrating that the floor was, in fact, slippery. Alterman Foods, supra at 624; Hall, supra at 93. Accordingly, the trial court correctly denied appellants’ motion for summary judgment.

2. Moreover, “[t]he party opposing the motion [for summary judgment] is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence.” (Citations omitted.) Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962). With all inferences resolved in appellee’s favor, the evidence introduced by appellants failed to pierce the allegations of the complaint so as to support its motion for summary judgment. In fact, appellants’ own evidence explains how normal maintenance, when improperly performed, may make its floor slippery.

As to the floor’s maintenance, the evidence introduced by appellants demonstrated only the “policy and procedures” utilized for floor maintenance; such evidence never advanced beyond the theoretical. No evidence was introduced regarding the actual cleaning of the floor prior to the incident in question, and no evidence was introduced demonstrating that the stated “policies and procedures” were actually followed by the cleaning crew. See Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (408 SE2d 443) (1991); Food Giant v. Cooke, 186 Ga. App. 253, 255 (366 SE2d 781) (1988). The restaurant manager, who testified regarding the normal cleaning procedures, also testified that he does not clean the floor, his employees have that responsibility; moreover, he did not provide any testimony regarding the actual cleaning of the floor prior to appellee’s fall.

In fact, the restaurant manager’s answer to the appellee’s interrogatory regarding cleaning procedures differed significantly from his testimony regarding the restaurant chain’s “policy and procedures,” leaving out both the “deck brush” scrubbing of the floor and the “squeegee” removal of the cleaning agent. With all inferences drawn in appellee’s favor, such evidence failed to show that appellants maintained its floor in a non-negligent fashion and could support the inference that appellants did not maintain its floor according to its own policies and procedures. As appellants argue, when normal, i.e., non-negligent, maintenance of the floor is carried out, the floor is not slippery; a fortiori, if the floor is slippery, there may have been negligence in the maintenance of the floor. At the very least, a jury issue is raised thereon. Thus, this evidence fails to “pierce” the allegations of the complaint so as to support a motion for summary judgment.

Also, appellants submitted as evidence the affidavit of Jack Helton, who testified that the floor cleaning agent used by appellants, Power Foam, is a degreaser that “cuts” grease on the floor. While Helton testified that Power Foam itself has no properties that would make a floor slippery, Helton testified that Power Foam “emulsifies” grease when applied to a surface in order to aid in the removal of grease, i.e., causes grease to become suspended in liquid emulsion so that it can be easily removed. Thus, a cleaning product that emulsifies grease has the potential to create a hazardous, slippery condition on any surface to which it is applied, because emulsified grease remains on a surface and may be spread thereon until proper removal.

Thereafter, Jack Helton testified as to the proper removal of Power Foam, which includes using a “squeegee” to remove the agent from the floor surface prior to mopping with warm water. All inferences drawn in appellee’s favor permit the deduction that a floor cleaning product that causes grease to emulsify and requires proper removal may be improperly removed, thereby creating a slippery condition on the floor. Since in the case before us, evidence was introduced that the floor was in fact slippery, the inference arises that the grease emulsion, created by the application of Power Foam, was not properly removed. Accordingly, Jack Helton’s testimony raises, in itself, a jury issue regarding the potentially improper removal of Power Foam so as to support a claim of active negligence, and the inferences arising therefrom, when viewed in favor of the non-moving party, fail to pierce the allegations of the complaint so as to support a motion for summary judgment.

The special concurrence urges that the above-referenced statements by Helton would not support a claim of active negligence because, “the negligence, if any, predated Mrs. Glass’ arrival at Wendy’s and her injuries plainly arose from a condition of the premises.” Quite to the contrary. Appellants’ alleged actions in the maintenance of its floor would be active misconduct which, from either acts or omissions, works positive injury to others; such is active negligence in the classic sense. See Smith & Prosser, Cases & Materials on Torts, p. 320 (1). In the instant case, appellants’ allegedly improper treatment of its floor with Power Foam was neither passive inaction nor, as the special concurrence styles it, an “aware{ness\ that a dangerous condition existed, but refus[al] to remedy the situation.” In fact, the dangerous condition did not just “exist,” and Wendy’s was not just “aware” thereof; appellants’ conduct allegedly created the dangerous condition through the improper maintenance of its floor. The fact that appellants’ floor is treated at night and not in its customers’ presence (“predated Mrs. Glass’ arrival”) does not in any way diminish the fact that appellants’ alleged negligence would be active (misfeasance) when proven.

Further, the “condition of the premises” to which the special concurrence refers that may negate the presence of misfeasance is a condition that is inherent in the premises. This passive, static, inherent state is the “condition of the premises” referenced in Lipham v. Federated Dept. Stores, 263 Ga. 865, n. 1 (440 SE2d 193) (1994) and Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445) (1992), which inherent condition does not encompass the results of a tortfeasor’s negligent actions in utilizing a commercial degreaser in such a manner as to make its floor slippery. See, e.g., Clinton v. Gunn-Willis Lumber Co., supra.

In sum, “the pleadings were not pierced by the showings in support of the motionsE, and] the showings did not show as a matter of law that the defendants were not guilty of negligence constituting the proximate cause of the injuries as charged in the petition.” Chapman, supra at 666. Thus, appellants’ motion for summary judgment was properly denied.

3. The trial court correctly denied appellants’ motion for summary judgment as to the issue of punitive damages. Sufficient evidence was presented to support such award, should a jury choose to believe appellee’s evidence that appellants knew that the “chemical” it put on its floor caused the floor to become slippery, but they “did not want to change what they were doing.” OCGA § 51-12-5.1 (b).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur specially.

Birdsong, Presiding Judge,

concurring specially.

Although I agree the trial court properly denied BBB Service Company’s motion for summary judgment, I write separately to make clear my objections to the analysis used by the majority in affirming that result. Additionally, I deem it important to note that certain inaccuracies in the majority’s narrative of the facts played no part in my disposition of this case.

1. If the majority’s statement that a movant for summary judgment has “the burden of establishing the nonexistence of any genuine issue of material fact,” is intended to mean that movants for summary judgment must prove affirmatively the nonexistence of any genuine issues of material fact, this statement is contrary to our present summary judgment law as established in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). If this statement is intended to convey the same meaning as the burden stated in Lau’s Corp., then why state it differently? OCGA § 9-11-56 (c) states that summary judgment shall be granted if the matters in the record “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Code section says nothing about the movant’s burden to demonstrate anything. The obligations of the parties currently applicable in motions for summary judgment were announced in Lau’s Corp. v. Haskins, supra, in which our Supreme Court unequivocally held that a “defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Id. at 491. Although apparently little noticed by both the bench and bar (as unfortunately evidenced by numerous briefs filed and decisions reached by this Court and trial courts relying on pre-Law’s Corp. precedent after the Lau’s Corp. opinion was published), this holding was a watershed in the law of summary judgment in this state.

Before Lau’s Corp., “ ‘the burden of establishing the nonexistence of any genuine issue of material fact [was] upon the movant[ ]’ ” (Alterman Foods v. Ligon, 246 Ga. 620, 625 (272 SE2d 327)) was construed to mean that the movant had the burden of disproving the existence of any genuine issues of material fact. After Lau’s Corp., however, the “party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, 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. In so holding, we overrule anything to the contrary.” (Emphasis supplied.) Id. at 495 (4). Consequently, all cases, including Alterman Foods, decided prior to the Supreme Court’s decision in Lau’s Corp., which placed the burden on the movant to disprove or negate with proof to the contrary elements of the non-movant’s case on which the non-movant would have the burden of proof at trial, were overruled to the extent they conflicted with Lau’s Corp. “Thus, after Lau’s Corp., movants for summary judgment are no longer required to disprove the essential elements of the plaintiff’s case.” Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 827 (482 SE2d 720). Therefore, contrary to the majority’s assertion, Wendy’s had no burden to establish the nonexistence of any material factual issues by disproving the essential elements of Glass’ case. To the extent that Alterman Foods and Hall v. Cracker Barrel Old Country Store, 223 Ga. App. 88 (476 SE2d 789), conflict with Lau’s Corp. on this point, they are not valid precedent.

The elements required to establish liability on Wendy’s in a slip and fall case in which the proprietor intentionally placed a substance on the floor are set out in Alterman Foods v. Ligón, supra at 623-624. Notwithstanding Wendy’s evidence concerning the nature of the tile floor and the properties of its cleaner, Glass’ evidence was sufficient to show that a genuine issue exists over whether the floor was slippery either because of the product used by Wendy’s or because Wendy’s employees did not use the product properly. Additionally, nothing in the record shows that Glass failed to exercise ordinary care for her own safety.

Moreover, as the manager’s purported statement, if believed, is sufficient to show that Wendy’s was aware a dangerous condition existed, but refused to remedy the situation, a genuine issue also exists over whether punitive damages are authorized. Therefore, I agree that the trial court did not err by denying Wendy’s motion for summary judgment.

2. The majority’s factual narrative suggests that the affidavit of Jack Helton stated that “obviously such product creates an emulsion of grease and dirt when it is applied to the floor”; “clearly, subsequent dry mopping would simply spread the grease emulsion, if it is not first removed properly”; and “however, the non-slippery character of the degreaser itself would be irrelevant if the resultant greasy emulsion is not properly removed, which event could support a claim of active negligence.” Although these statements appear to be reasonable conclusions or inferences which might be drawn, they are not contained in Helton’s affidavit.

3. Additionally, the assertion that such statements would support a claim of active negligence is contrary to our law because the negligence, if any, predated Glass’ arrival at Wendy’s and her injuries plainly arose from a condition of the premises. Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (differentiating between cases concerning active negligence and conditions of the premises); Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445) (stating the duty owed when negligence arises from static or passive conditions). If the majority’s contention on this point is correct, the standards for the second kind of slip and fall cases discussed in Alterman Foods would be effectively eliminated. In any event, as demonstrated above, these factual assertions were unimportant to my consideration of the case.

4. Although the continued validity of the Alterman Foods standards has been questioned by some members of this Court, the majority of this court recognizes that Alterman Foods remains binding precedent. See Adams v. Sears, Roebuck & Co., 227 Ga. App. 695 (490 SE2d 150); Hartley v. Macon Bacon Tune, 227 Ga. App. 679 (490 SE2d 403). In addition to their continued authority as binding precedent, however, the Alterman Foods standards have continued significance because they remain a legitimate system for balancing the interests competing in these cases.

It is generally accepted that “mere ownership of land and buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of the safety of entrants on his premises.” Adams & Adams, Ga. Law of Torts (1996 ed.), § 4-1, p. 97. Thus, because owners are not insurers, proving only that a person fell is insufficient to establish the proprietor’s negligence. “What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use.” (Citation and punctuation omitted.) Alterman Foods, supra at 624. Therefore, “to say that the issue is one for the jury in every such case presents an intolerable burden on innocent or even the most diligent merchants.” Id.

Nevertheless, our law requires that owners or occupiers exercise ordinary care in keeping their premises safe (OCGA § 51-3-1) and requires them to exercise diligence in making their premises as safe as ordinarily prudent businesses would. Alterman Foods, supra at 624. Further, Alterman Foods recognizes that premises may be unsafe not only because of the acts or omissions of the proprietors but also because of the negligence of customers and others over whom the proprietor may have no control. Thus, under Alterman Foods proprietors may be held liable by failing to keep their premises safe not only because they placed substances there, but also because they did not correct dangerous conditions after the proprietors learned or should have learned of them.

Under these conflicting demands, it will always be difficult to create bright line rules for disposition of slip and fall cases, but even if one attempted to do so, it is difficult to comprehend what such rules could be established other than one side or the other always would prevail. See for example the replacement suggested by the dissent in Adams v. Sears, Roebuck & Co., supra.

Nevertheless, even though using the Alterman Foods standards may not permit establishment of the clear, definite guidance some apparently desire, they do provide a reasonable means for consideration of these cases. Further, notwithstanding the criticism, the Alterman Foods standards cannot be eliminated easily without effecting major changes in the underlying legal relationships. Even if one believed that the law should be changed to make owners or occupiers insurers of safety, we must recognize that bringing about such a significant change in our law would have associated and perhaps unintended consequences. What we should not do is achieve that change, as I believe the majority opinion would do, without acknowledging that a fundamental change in our law would result.

As they currently exist, I believe the Alterman Foods standards presently provide sufficient guidance for advising clients on the merits of their cases and/or on what actions should be undertaken in given situations to avoid potential liability. For example, neither customers who slip and fall, but who do not exercise ordinary care for their own safety by adequately watching where they are going and avoiding clearly visible foreign substance on the floor, nor proprietors who fail to institute reasonable precautions to detect and clean up foreign substances or other dangerous conditions should expect to be successful under the current Alterman Foods standards. In my view, the difficulty in applying these standards that some commentators have noted recently is not with the standards, but with the difficulty this Court has had in incorporating the Alterman Foods standards with the changes in summary judgment procedures brought about by our Supreme Court in Lau’s Corp. v. Haskins.

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

Decided September 9, 1997

Bentley, Karesh & Seacrest, Gary L. Seacrest, Gerald P. Ruleman, for appellants.

Hart & McIntyre, George W. Hart, Thomas W. Thrash, Jr., for appellee.

       All parties agree that the floor was dry and had no obvious, visible foreign substance on it.

       If further clarity is necessary for some, the statements of Helton are, of course, in quotes. Reasonable inferences drawn therefrom are, of course, on the other side of the punctuation mark appearing at the conclusion of the quoted material.

       See also OCGA § 9-11-56 (c) (movant must “show that there is no genuine issue as to any material fact (emphasis supplied)); Marsh v. Berens, 237 Ga. 135, 136 (227 SE2d 36) (1976) (on a motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of material fact is upon the movants, and the evidence must be construed most strongly against them).

       Accord in other opinions authored thereby, e.g., Coffey v. Wal-Mart Stores, 224 Ga. App. 824 (482 SE2d 720) (1997); Harrison v. Golden, 219 Ga. App. 772, 774 (466 SE2d 890) (1995); see also Van Dyke v. Emro Mktg. Co., 211 Ga. App. 744, 748 (440 SE2d 469) (1993) (Birdsong, P. J., dissenting).

       To the extent that a form of semantic legerdemain may be attempted by some, “absence” is the noun form of the adjective “absent” meaning, “not existent.” (Emphasis supplied.) American Heritage Dictionary of the English Language, 3rd ed., p. 6.

       See, e.g., Coffey v. Wal-Mart Stores, supra at 827; Blake v. Kroger Co., 224 Ga. App. 140, 145 (480 SE2d 199) (1996); Harrison v. Golden, supra at 774; Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 93 (449 SE2d 618) (1994); Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 334 (444 SE2d 814) (1994); Wade v. Mitchell, 206 Ga. App. 265, 266 (424 SE2d 810) (1992); Shansab v. Homart Dev. Co., 205 Ga. App. 448, 449 (422 SE2d 305) (1992).

       Although a plaintiff has a burden of production, i.e., presenting any evidence which creates a material issue of fact as to an element of the affirmative defense, a plaintiff has no duty to present evidence disproving an affirmative defense on summary judgment. Hodge, supra at 691.

        Barber v. Threlkeld Ford, 199 Ga. App. 787, 788 (406 SE2d 249) (1991) (“The burden of showing the absence of a genuine issue of any material fact rests on the party moving for summary judgment; no duty devolves upon the opposing party to produce rebuttal evidence unless the movant first makes a prima facie showing of right to a summary judgment. . . . Lockhart v. Walker, 124 Ga. App. 241 (183 SE2d 503) (1971).”); see also OCGA § 9-11-56 (e) Cwhen motion for summary judgment is supported by showing no material issue of fact, then adverse party may not rest upon pleadings but must set forth specific facts showing genuine issue for trial).

       Cf. Blake v. Kroger Co., supra at 145 (trial court determines whether there is any genuine issue of material fact (emphasis in original)).

       In fact, defense evidence created a jury issue by explaining the potentially hazardous, slippery condition that could arise if the commercial degreaser used on appellants’ floor is not properly removed.

       In Hall, this Court presented a list of possible evidentiary approaches by which a plaintiff might survive summary judgment. See Hall, supra at 92-93.

       “While generally direct evidence is to be preferred, e.g., the witness sees A stab B, yet in some situations circumstantial evidence seems to be no less trustworthy if not superior, e.g., ‘There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog has passed.’ W. Prosser, Law of Torts, 212 (4th ed. 1971). See Brown v. Matthews, 79 Ga. 1 (4 SE 13) (1887), where it was observed: ‘Amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.’ ” Menke, supra at 503. The drawing of such inference is obviously a function of the jury, raising an issue therefor.

       Obviously, the “condition of the premises” to which the special concurrence refers, which condition may negate the existence of active negligence, does not encompass the results of a tortfeasor’s negligent actions in utilizing a commercial degreaser in such a manner as to make its floor slippery. See, e.g., Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643 (49 SE2d 143) (1948).

       We have reviewed the record in relation to appellants’ additional enumerations of error concerning liability and find that appellants’ contentions concerning (1) appellee’s failure to exercise reasonable care, (2) the presence of “wet floor” cones as creating “equal knowledge,” and (3) appellants’ lack of duty toward appellee are either unsupported by the facts, unsupported by the law, or are disputed by competent evidence of record. As such, these contentions fail to demonstrate error in the denial of appellants’ motion for summary judgment.