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Barentine v. the Kroger Company

Supreme Court of Georgia
May 31, 1994
264 Ga. 224 (Ga. 1994)

Summary

In Barentine v. Kroger Co., 264 Ga. 224 (443 S.E.2d 485) (1994), this Court explained that under Prophecy Corp., the opposing party is not entitled to judgment in its favor where there is evidence other than the favorable portion of the equivocator's self-contradictory testimony that supports the equivocator's position, a rationale that applies whether the equivocator is the plaintiff or the defendant.

Summary of this case from Korey v. Bellsouth Telecommunications, Inc.

Opinion

S94G0308.

DECIDED MAY 31, 1994.

Certiorari to the Court of Appeals of Georgia — 210 Ga. App. 795.

Drew, Eckl Farnham, John G. Blackmon, Jr., for appellant. Webb, Carlock, Copeland, Semler Stair, Douglas A. Wilde, Gregory H. Wheeler, for appellee.


We granted certiorari in this case, The Kroger Co. v. Barentine, 210 Ga. App. 795 ( 437 S.E.2d 629) (1993), to consider whether the Court of Appeals correctly applied the rules applicable to the contradictory testimony of a party witness, Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 ( 343 S.E.2d 680) (1986). We conclude that it did not correctly apply one of those rules and thus erred by ruling that the trial court should have granted The Kroger Company's motion for a directed verdict.

"Barentine entered Kroger at approximately 3:45 a. m., to purchase a box of cigars. On his way to check out, he slipped and fell on a puddle of a clear liquid near the check-out counter." Barentine, 210 Ga. App. at 795. In his deposition, Barentine testified that he could have seen the clear liquid if he had been looking down towards it as he walked toward the check-out counter. At trial, however, Barentine stated that he could not have seen the clear liquid if he had been looking down at it as he walked toward the check-out counter. The Court of Appeals ruled that these statements were in conflict concerning whether Barentine could have seen the liquid if he had been looking down, and had to be construed against him. Id. at 795-796. Further, citing the rule that "`[w]here the favorable portion of a party's self-contradictory testimony is the only evidence of his right to recover ... the opposing party is entitled to a directed verdict[,]'" id. at 796 (quoting Prophecy, 256 Ga. at 28) the Court of Appeals held that the favorable portion of Barentine's testimony was the only evidence to satisfy one of the elements of his slip and fall action — that he had exercised reasonable care for his own safety, see Food Giant v. Cooke, 186 Ga. App. 253, 257 (2) ( 366 S.E.2d 781) (1988) — and that the trial court erred by denying Kroger's motion for a directed verdict. Barentine, 210 Ga. App. at 796.

We agree with the Court of Appeals that the portions of Barentine's testimony set forth above are contradictory and had to be construed against Barentine, as no reasonable explanation was offered to explain the contradiction. Prophecy, 256 Ga. at 30. However, we disagree that the favorable portion was the only evidence that Barentine exercised reasonable care for his own safety. At his deposition and at trial, Barentine maintained he in fact was not looking down at the floor as he approached the spot where he slipped and fell near the check-out line, and he offered a specific reason for not doing so. Barentine testified that when he entered the store, he saw the person who he recognized from prior late night visits as the nighttime cashier; that that person was standing away from the only open cash register; that as he was walking towards the check-out line he saw the cashier standing in the same place he was when Barentine had entered the store; that Barentine looked at the cashier as he was walking toward the check-out line so that he could tell him he was ready to check out; and that as he told the cashier he was ready to check out, he slipped and fell. This testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter. See Food Giant, 186 Ga. App. at 257. The evidence thus did not demand a finding that Barentine failed to exercise reasonable care, id.; OCGA § 9-11-50, and the Court of Appeals erred by ruling that the trial court should have granted a directed verdict for Kroger, § 9-11-50.

Judgment reversed. All the Justices concur, except Hunt, C. J., and Hunstein, J., who concur in the judgment only.


DECIDED MAY 31, 1994.


Summaries of

Barentine v. the Kroger Company

Supreme Court of Georgia
May 31, 1994
264 Ga. 224 (Ga. 1994)

In Barentine v. Kroger Co., 264 Ga. 224 (443 S.E.2d 485) (1994), this Court explained that under Prophecy Corp., the opposing party is not entitled to judgment in its favor where there is evidence other than the favorable portion of the equivocator's self-contradictory testimony that supports the equivocator's position, a rationale that applies whether the equivocator is the plaintiff or the defendant.

Summary of this case from Korey v. Bellsouth Telecommunications, Inc.

In Barantine v. Kroger Co., 264 Ga. 224 (443 S.E.2d 485) (1994), however, the Supreme Court held that even if a plaintiff admits he could have seen liquid on the floor if he had looked at it, a verdict for the defendant is not demanded. Rather, the question of whether the plaintiff exercised reasonable care for his safety under all the circumstances, despite his failure to look straight down at the floor while he was walking, was one for the jury to decide.

Summary of this case from Greeley v. A. G. Spanos Companies

In Barentine, the Supreme Court found that the plaintiff's admitted failure to look at the floor when he fell failed to justify a directed verdict because his explanation, that he was looking at the cashier standing a distance away from the cash register to tell him he was ready to check out, provided some evidence that he had exercised reasonable care, thereby raising a jury question.

Summary of this case from McDonald's v. Banks

In Barentine, the cashier was not at his post, and Barentine was distracted by the necessity of calling him to the checkout line.

Summary of this case from Baker v. Winn Dixie Stores, Inc.

In Barentine v. Kroger Co., 264 Ga. 224, 225 (443 S.E.2d 485) (1994), our Supreme Court held that the plaintiff's explanation as to why he was not looking where he was going as he approached the check-out counter, that being, that he was looking at the cashier to tell him he was ready to check out, created a fact issue for jury determination.

Summary of this case from Sheriff's Best Buy, Inc. v. Davis

In Barentine, the Supreme Court concluded that the act of looking toward the cashier was some evidence that plaintiff had met his duty of care and that the clerk's presence perhaps constituted a diversion attributable to defendant.

Summary of this case from J. H. Harvey Company, Inc. v. Kinchen
Case details for

Barentine v. the Kroger Company

Case Details

Full title:BARENTINE v. THE KROGER COMPANY

Court:Supreme Court of Georgia

Date published: May 31, 1994

Citations

264 Ga. 224 (Ga. 1994)
443 S.E.2d 485

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