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Span v. Phar-Mor Inc.

The plaintiff's affidavit in opposition to summary judgment which contradicted his deposition testimony was construed against him.

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This appeal arises out of the state court’s grant of summary judgment to appellee-defendants Phar-Mor, Inc. and John Does One through Five “Phar-Mor”1 upon a personal injury action filed by Coca-Cola bulk merchandiser2 appellant-plaintiff Rufus Span. Therein Mr. Span averred that he suffered neck, shoulder, and back injuries upon manually moving by pallet jack two pallets of Coca-Cola in Phar-Mor’s stock room by pallet jack. Mr. Span contends that summary judgment for Phar-Mor was error: a as granted contrary to the Supreme Court’s decision in Robinson v. Kroger, 268 Ga.735 493 SE2d 403 1997, on motion for summary judgment relieving non-movant plaintiffs of the burden of producing evidence disproving their negligence until defendant’s negligence has been established or assumed; Id. at 748 2 b, and b as granted upon assumption of the risk and causation theories. Finding no evidence of Phar-Mor’s negligence in the record, we affirm.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. In order ‘to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 c.’ Emphasis supplied. Lau’s Corp. v. Haskins, 261 Ga. 491 405 SE2d 474 1991; Gentile v. Bower, 222 Ga. App. 736 477 SE2d 130 1996. ‘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 . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.’ Robinson v. Kroger Co., 268 Ga. 735, 748 493 SE2d 403 1997.

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