CANAAN LAND PROPERTIES, INC. et al.
Trip and fall. Appling Superior Court. Before Judge Wilkes.
Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Bradley J. Watkins, for appellants.
Smith Law Group, J. Frank Smith, Jr., for appellee.
PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.
Phipps, Chief Judge.
We granted an application for interlocutory appeal to review the denial of a motion for summary judgment filed by Canaan Land Properties, Inc., Rick Poppell, and Fred's Stores of Tennessee (collectively " Canaan Land" ) in this premises liability action brought by Carol Steve Herrington. In his complaint, Herrington alleged tat Canaan Land was liable for injuries he suffered after he fell on uneven pavement in the parking lot
of a Fred's store. Because Herrington failed to point to evidence establishing that the uneven pavement caused him to fall, the trial court erred in denying Canaan Land's motion for summary judgment. We therefore reverse.
On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
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. If the moving party discharges this burden, the nonmoving party cannot rest on [his] pleadings, but rather must point to specific evidence giving rise to a triable issue.
Viewed in the light most favorable to Herrington, the record reveals the following. Herrington deposed that he went to Fred's store on January 12, 2011, minutes before it closed for the evening. After shopping, he exited the store and pushed a shopping cart containing groceries through the store parking lot to return to his vehicle. As he approached his vehicle, the shopping cart jerked or turned quickly to [330 Ga.App. 18] the left, and a rear wheel on the cart caught his foot, tripping him. Still holding onto the cart, Herrington fell, injuring his arm and turning the cart over. Herrington did not know immediately what had caused the cart to turn suddenly to the left. He telephoned his sister, who drove him from the store parking lot to a hospital for treatment. In the meantime, Herrington left his vehicle in the store parking lot.
Several hours later, after receiving medical attention, Herrington returned to the store parking lot. He looked to " see if any of my stuff was still out there," " and to see if there was anything out there that made the buggy turn to the left and trip me." In doing so, Herrington noticed, for the first time, that there was a hole or divot in the ground about 14 inches from his vehicle's rear bumper. He concluded that " [i]t had to be the hole" that had caused the cart to turn to the left. He observed that there were also cigarette butts, " pieces of garbage," and sand near his vehicle. Before he fell, he had not noticed anything, such as uneven pavement or debris, that he thought made the parking lot unsafe. When asked about his determination that the divot had caused the cart to turn to the left, Herrington deposed, " That's the only thing that could have other than the trash in the parking lot."
Then, when asked if something other than the divot could have caused the cart to turn, such as trash or ...