Trial Practice and Procedure - C. Frederick Overby, Jason Crawford, and Teresa T. Abell

• Jurisdiction: Georgia,United States
• Publication year: 1998
• Citation: Vol. 50 No. 1

Trial Practice and Procedureby C. Frederick Overby^*

Jason Crawford^** and

Teresa T. Abell^***

I. Introduction

The most notable and far-reaching judicial activity during this survey period dealt with the summary judgment standard applied in tort cases. Other noteworthy developments occurred in the areas of venue, renewal of actions, collateral estoppel, and bifurcation of trials in cases involving punitive damages. Only minimal legislation was enacted in the area of trial practice and procedure during the survey period. This Article focuses on the most notable decisions rendered by the judiciary and the most significant legislation touching upon trial practice and procedure in Georgia state courts.

II. Case Law

A. The Summary Judgment Standard

Perhaps the single most important development during the survey period was when the supreme court reviewed the unique -summary judgment standard that the court of appeals had been applying in "slip and fall" cases—a standard which made successful pursuit of such a case about as likely as meaningful campaign finance reform.¹ The landmark decision was Robinson v. Kroger Co.,² a garden-variety tort case in which the plaintiff slipped on a foreign substance in a supermarket and injured her knee.³

Before the supreme court granted certiorari in Robinson, any observer of Georgia jurisprudence could predict with certainty a swift and decisive victory for the supermarket. In a string of cases purportedly relying on Alterman Foods, Inc. v. Ligon,⁴ the supreme court's last pronouncement on the subject in 1980, the court of appeals created a summary judgment standard for "slip and fall" cases that turned the ordinary burdens of proof and production applicable to all other tort cases on their heads.⁵ Plaintiffs were forced to prove, as part of their prima facie case, the defendant's "superior knowledge" of the hazard involved.⁶ "Superior knowledge" required the plaintiffs to prove they exercised due care for their own safety.⁷ However, in other words, not only did "slip and fall" plaintiffs necessarily need to prove the negligence of the defendants, but they also had to affirmatively disprove their own contributory negligence and assumption of the risk.⁸ Failure to carry either burden barred recovery completely.⁹ However, in all other tort cases, the burden is on the defendants to prove the plaintiffs' contributory negligence and assumption of the risk as affirmative defenses. The jury may also consider the comparative negligence of the respective parties.¹⁰

One might ask, as the supreme court ultimately did when granting certiorari, how one proves with affirmative evidence that one was not negligent?¹¹ The task proved so hard that questions of negligence and contributory negligence, long reserved for jury determination in all but the clearest cases, became decisions for the courts in almost every "slip and fall" case.¹²

Indeed, Mrs. Robinson could not show she had been watching the floor continuously as she placed each footfall—a standard arguably proper for tightrope walkers but not even advisable for negotiators of supermarket aisles—so the trial court dismissed her case.¹³ The court of appeals affirmed summary judgment.¹⁴ The case might have ended at this point, but plaintiff's counsel filed as a matter of course a petition for certiorari, asking the supreme court to revisit the issue of the proper summary judgment standard to apply in "slip and fall" cases. The supreme court granted certiorari to address this issue.¹⁵

In division 1 of its opinion, a unanimous supreme court reversed summary judgment.¹⁶ The court expressly disapproved of "the appellate decisions which hold as a matter of law that an invitee's failure to see before falling the hazard which caused the invitee to fall constitutes a failure to exercise ordinary care."¹⁷ The court condemned the decision to dismiss plaintiff's case based on an admission that "she failed to look at the location where she subsequently placed her foot."¹⁸

The high court reasoned that the court of appeals decisions wrongly made summary adjudication of negligence issues the norm in "slip and fall" cases, rather than the exception.¹⁹ Also, the unique "slip and fall" standard elevated the plaintiff's duty to exercise care to paramount importance such that a finding of any knowledge, rather than superior knowledge, on the part of the plaintiff constituted a complete bar to a jury determination.²⁰ Finally, the "slip and fall" standard inexplicably transformed the "plain view" doctrine into a bar to recovery any time the plaintiff could have discovered any hazard, no matter how small or inconspicuous, if the plaintiff had inspected the placement of each footfall.²¹

In division 2 of the opinion, in somewhat of an advisory opinion, six of the seven Justices addressed two recurring "slip and fall" subjects which were not technically at issue in Robinson: the "distraction doctrine" and the parties' respective burdens of proof.²² This Article will only explore the supreme court's exposition on the proper burdens of proof because that part of the court's opinion will change "slip and fall" practice and procedure drastically by bringing it back in line with the procedures followed in all other tort cases.

Oddly enough, it was not Alterman Foods alone that saddled "slip and fall" plaintiffs with the typically insurmountable burden of proving their own nonnegligence at the summary judgment stage. When Alterman Foods was decided, the defendant had the burden at the summary judgment stage of coming forward with affirmative evidence refuting at least one element of the plaintiff's prima facie case.²³ So, practically speaking, the defendant was necessarily required to produce evidence of the plaintiff's negligence before the plaintiff's burden of demonstrating nonnegligence arose.

When the supreme court decided Lau's Corp. v. Haskins,²⁴ the confluence of Lau's with Alterman Foods led to the unique "slip and fall" standard overruled by the supreme court in Robinson.²⁵ For the first time, after Lau's, a defendant who does not have the burden of proof on an issue was allowed to obtain summary judgment by merely pointing to a lack of evidence possessed by the plaintiff in support of at least one element of his prima facie case.²⁶ Synergistically, these two cases forced "slip and fall" plaintiffs to prove their lack of negligence to the trial court or lose the right to a jury determination of negligence issues.

In Robinson, the supreme court elected to modify Alterman Foods in order to correct this misapplication of the summary judgment burden in "slip and fall" cases.²⁷ Now the defendant again has the burden of coming forward with evidence of the plaintiff's lack of due care before any duty of showing care is triggered on the part of the plaintiff.²⁸ The supreme court went on to

remind members of the judiciary that the "routine" issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.²⁹

The decision in Robinson was foreshadowed by a full panel debate of the proper summary judgment standard by the court of appeals in the case of Bruno's Food Stores, Inc. v. Taylor.³⁰ In Bruno's, plaintiff slipped on a wet floor at a supermarket allegedly because of an independent floor cleaning company's failure to remove the water from the floor and failure to place warning signs.³¹ The case involved a multitude of oft-encountered "slip and fall" issues, but its pertinence to the trial practice and procedure survey stems from the lively debate between the majority and special concurrence over the proper summary judgment standard to apply to "slip and fall" cases.³² The disagreement between esteemed members of the court of appeals, after years and scores of "slip and fall" precedent, highlighted the need for supreme court review of the summary judgment standard in "slip and fall" cases.

The majority in Bruno's, constrained by the Alterman Foods and Lau's standard, struggled mightily to shape its analysis in a more even-handed way than in past opinions. The end result denied summary judgment based on a finding of "active negligence" by the supermarket and the court's refusal to draw a "negative inference" against plaintiff at the summary judgment stage.³³

The finding of "active negligence" was significant because it ostensibly removed Bruno's from the "static condition" analysis utilized in "slip and fall" cases and transformed it into an ordinary negligence action.³⁴ In ordinary negligence actions, the defendants, not the plaintiffs, carry the burden of proof with respect to whether the plaintiffs exercised ordinary care for their own safety.³⁵ Comparative negligence also applies so that the jury still decides the issue even if the plaintiff was negligent to some degree as a matter of law.³⁶

The majority could have easily ended its analysis by holding that because defendant, who had the burden of proving plaintiff's negligence in "active negligence" cases, had come forward with no positive proof of negligence by plaintiff, summary judgment was inappropriate. After all, it is settled doctrine that questions of negligence are left for the jury in all but plain, palpable, and undisputed cases.³⁷ Instead, the majority expounded for several more pages, holding summary judgment cannot be based upon a "negative inference" against the nonmovant.³⁸

While this principle seems clear from a wealth of precedent, notwithstanding the disagreement of the special concurrence, it is no profound revelation.³⁹ When nonmovants carry the burden of proof, the only question at summary judgment is whether the nonmovant has offered any evidence in support of each element of the claim.⁴⁰ Inferences which negate an element of the nonmovant's prima facie...