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PITCH'N PUTT, INC. et al. v. ATCHESON.
45511.
Action for damages. DeKalb Superior Court. Before Judge Dean.
QUILLIAN, Judge.
Where, in a negligence case, the defendant, as movant for summary judgment, failed to negate the allegations of the petition and to establish that there was no issue of material fact, the trial judge properly denied the motion for summary judgment.
Navonia Atcheson filed a claim for damages against Pitch'n Putt, Inc., Atlanta Coca-Cola Bottling Company, Kwik'n Easy, Inc., and Henry G. Short. The defendants filed motions for summary judgment. The motions were overruled and the case is here for review.
The petition alleged that: Navonia Atcheson was injured while on the business premises of the defendants Pitch'n Putt and Kwik'n Easy as an invitee; she had removed a Coca-Cola carton from a stack of such bottle cartons and had turned her back to the stack when a carton fell and one of the bottles shattered, the glass fragments striking the plaintiff's leg and severely cutting it. The negligence of the defendants was alleged to he the sole and proximate cause of the plaintiff's injuries.
The plaintiff in her deposition testified that she had gone to the business premises of the defendants Pitch'n Putt and Kwik'n Easy on the date in question to purchase a carton of Coca-Cola; she traded at the store regularly and had visited there on an average of four to five times weekly for several years; she had purchased soft drinks there many times and such drinks had been in the same general location that they were on the evening of the incident in question; when she approached the self-service rack, no one else was in the area of the bottles that she picked up; she then picked up a carton of bottles and took two or three steps before she heard the bottles strike the floor.
The plaintiff stated that, following the occurrence, the carton of bottles which she had picked up intending to purchase was still intact and none of the bottles in that carton were broken; there were no drinks stacked on top of the carton which was sitting on a stationary shelf and there were no bottles under the carton; that when she approached the rack, the rack seemed normal and she noticed no loose bottles on the rack; the drinks looked as if they were stacked normally and they were stacked like they usually were; she had no idea what made the bottles fall and she saw nothing she considered out of the ordinary, unusual or unsafe; nothing stood out to her indicate that there was anything wrong; she did not know where the bottles which fell came from.
The defendants contend that since the plaintiff did not prove that the proximate cause of her injuries was due to the defendants' negligence, the summary judgment should have been granted. With this contention we cannot agree. While it is true that upon the trial of the case the plaintiff may not be able to carry the burden of proof required of her, as was stated in Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90 (3) (176 SE2d 487): "A party who moves for summary judgment in a case premised on negligence has a considerable burden, and if then moving party is defendant, sometimes he cannot obtain a summary judgment when he might be able to secure a directed verdict at the trial of the case. A motion for summary judgment may be denied a defendant in such case because he is not simply weighing his evidence against the evidence of the plaintiff, but each and every allegation of the plaintiff's complaint must be negated, with all presumptions being in favor of the plaintiff (the party opposing the motion for summary judgment), and the complaint of plaintiff thereby being elevated to the dignity of evidence. See Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420 (3) (170 SE2d 737). This court has repeatedly held, and particularly in negligence cases, that it is permissible to grant a motion for summary judgment only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. See Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442); Malcolm v. Malcolm, 112 Ga. App. 151 [144 SE2d 188]. The burden to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law is upon the moving party, and any and all reasonable doubts as to the existence of such issue are resolved against the movant, with the trial court giving the party opposing the motion 'the benefit of all favorable inferences that may be drawn from the evidence.' Holland v. Sanfax Corp., supra. Thus, in negligence cases, it must be plainly and palpably shown that the defendants in no way contributed to the proximate cause of the damages incurred in order for the trial court to sustain a motion for summary judgment in their favor."
The overruling of the defendants' motions for summary judgments was not error. "Ordinarily, whether the owner or occupant of land exercises ordinary care in keeping premises in a safe condition, upon which an invitee goes and is injured, whether the invitee could have avoided injury in the exercise of ordinary care. or whether both were negligent in some degree, as the proximate cause of an injury, or the absence of any negligence are questions for jury determination." Colonial Stores v. Donovan, 115 Ga. App. 330 (4) (154 SE2d 659); Blair v. Rayburn, 120 Ga. App. 57, 60 (169 SE2d 679); Hanchey v. Hart, 120 Ga. App. 677, 680 (171 SE2d 918).
Judgment affirmed. Bell, C. J., and Whitman, J., concur.
Gettle, Jones & Fraser, Sherman C. Fraser, Jr., for appellee.
Neely, Freeman & Hawkins, J. Bruce Welch, for appellants.
ARGUED SEPTEMBER 8, 1970 -- DECIDED JANUARY 22, 1971.
Friday May 22 16:09 EDT


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