Blake v. Kroger Co.

480 S.E.2d 199, 224 Ga. App. 140, 96 Fulton County D. Rep. 4313, 1996 Ga. App. LEXIS 1316

• Court: Court of Appeals of Georgia
• Decided: December 5, 1996
• Docket: A96A1365
• Status: Published

Opinions

Birdsong, Presiding Judge.

John Blake sued Kroger Company for injuries allegedly received when he fell in defendant’s store. The trial court granted summary judgment to the defendant. Blake contends that he slipped and fell but did not see anything on the floor which caused him to slip and fall. He states that only skid marks from his shoe were sighted on the floor where he fell and that he immediately got up. Appellant testified that he “went straight to the service desk”; he says the service desk was in the immediate area, but he does not cite where in the record such evidence may be found. He contends there was an employee in the immediate area. Defendant Kroger controverts this statement of fact and contends the alleged fall occurred in aisle 5 and there was no employee in aisle 5 at the time of the fall.

Appellant testified that after he reported the fall, he and an employee went to the area where he had fallen, and after close examination, the employee located a skid mark and got down on the floor and found a small amount of clear liquid. However, appellant’s other testimony does not clearly show the employee found a small amount of clear liquid on the floor. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). Appellant said he “absolutely” did not believe he could have avoided this fall if he had been looking at the floor. “I think I could have been crawling, and I wouldn’t have seen it.” The aisle where he was walking “appeared] to be clean and free of any defects.” He did not see anything; “there was nothing to indicate that I was stepping in something until after I had already slipped and fell.” After he fell, he looked to see what was on the floor and “I didn’t see anything. . . . The only thing I could see was a black trail [skid mark] where my foot had gone in the substance.” He “couldn’t see any substance on that floor other than my foot print.” As to whether at any time he saw a puddle on the floor, he said: “No, I took a person back to clean it up, and we still didn’t see a puddle. . . . She got on the floor. She had a rag. And she said something to the effect that, no wonder you couldn’t see it. I don’t know what it is myself. And she cleaned it up!’ He said “after we came back and I got down [on the floor], I looked, but I still didn’t know what it was.” “When we came back and the [girl] asked me to show her where I fell, I went back there. We still couldn’t see it. .. . And she said oh, it’s some kind of detergent or something. I don’t remember what she said, verbatim.” (Emphasis supplied.)

Defendant Kroger contends its employees inspect and sweep its floors on a regular basis and are instructed to clean up any foreign substance they see on the floor. Appellant’s deposition shows he did not know how long the substance had been on the floor or when the floor of that aisle had been inspected.

On appeal, appellant contends the trial court erred in holding there were no material facts to support appellant’s claim that an employee was in the immediate area and had an opportunity to discover and remove the foreign substance. Secondly, he contends the trial court improperly shifted to him the burden of proof concerning Kroger’s superior constructive knowledge. Held:

1. As to the proprietor’s liability and duty in these cases, see Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). To recover for a fall due to a foreign substance on the floor, the plaintiff must show the defendant had actual or constructive knowledge of the hazard and that the plaintiff was without equal knowledge of it. J. H. Harvey Co. v. Johnson, 211 Ga. App. 809 (440 SE2d 548). Liability for injuries resulting from an invitee’s fall is determined by the relative knowledge possessed by the proprietor and by the invitee of the condition which resulted in the injury, for the basis of the proprietor’s liability is his superior knowledge. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305). Where there is no evidence of defendant’s actual knowledge of a hazardous condition, there are two classes of cases which may be based on the defendant’s constructive knowledge. See Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (226 SE2d 142). Constructive knowledge may be inferred where there is evidence an employee was in the immediate vicinity of the dangerous condition and could have noticed and easily removed the hazard (Thompson v. Regency Mall &c., 209 Ga. App. 1, 3 (432 SE2d 230)), or alternatively, by showing the defendant failed to exercise reasonable care in inspecting the premises and keeping them safe. J. H. Harvey Co., supra; Winn-Dixie Stores v. Hardy, supra.

According to the dissent, Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223 (460 SE2d 838) requires the defendant to negate plaintiff’s claim by presenting evidence not only that it had reasonable inspection and cleaning policies, but that it actually carried out those policies on the day of plaintiff’s fall.

However, contrary to the dissent’s perception of Daniel, this is not an immutable legal requirement. In the first place, in Daniel the defendant conducted an inspection before Daniel fell, so an inference of constructive knowledge on such grounds was not in issue. The “rule” stated in Daniel is therefore dictum. More importantly, if there is no evidence that actual inspecting and cleaning would have discovered and removed the foreign substance, there can logically be no inference that the defendant had constructive knowledge of its existence.

On either ground of constructive knowledge, the plaintiff must show the defendant could have found and removed the hazard. Just as a plaintiff who seeks to show constructive knowledge by showing that employees in the vicinity could easily have noticed and removed the hazard {Daniel, supra at 224), a plaintiff who claims constructive knowledge based on failure to inspect and clean the premises must show that such actions would have found and removed the hazard. Daniel itself states that in the class of cases based on failure to conduct inspecting and cleaning procedures, it must be shown the defendant’s failure to discover the hazard “ ‘was the result of the breach of (the defendant’s) legal duty to inspect the premises. If so, an inference would arise from that breach of (the defendant’s) constructive knowledge of the presence of the (foreign substance) on its floor.’ ” (Emphasis supplied.) Id. at 224, quoting Food Giant v. Cooke, 186 Ga. App. 253, 255 (366 SE2d 781). Although the dissent perceives that Daniel sets down a requirement to show compliance with inspection and cleaning procedures or suffer the inference of constructive knowledge, in fact Daniel says that in the absence of evidence the defendant conducted an inspection “ ‘that would have discovered the foreign substance,’ ” the plaintiff is not required to show a length of time the substance remained on the floor. (Emphasis supplied.) Daniel, supra at 225, quoting Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845). The dissent’s understanding of Daniel’s “rule” is thus incomplete. Daniel says the defendant’s failure to show compliance with inspection and cleaning procedures permits an inference of constructive knowledge only if there is evidence that a reasonable inspection and cleaning would, have discovered the hazard and defendant’s failure to discover the hazard was the result of the breach of its duty to inspect. Daniel, supra at 224.

In cases cited by Daniel for this rule, no such inference was raised because there was evidence showing a reasonable inspection of the premises had been made. J. H. Harvey Co. v. Johnson, supra at 810; Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362); Jackson, supra. And, in the originator of the quoted “rule,” Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428 (408 SE2d 443), the defendant conducted reasonable inspection. Id. at 430. The fact that this was sufficient in Mallory to negate an inference of constructive knowledge does not mean such evidence is necessary to avoid that inference. The statement of the rule in Mallory is dictum and could not have been intended to control cases where there is no evidence that inspection or cleaning would have discovered and removed the substance and there is no evidence defendant’s failure to detect it was the result of its failure to comply with reasonable inspection and cleaning procedures.

In creating this “rule,” Mallory cited Food Giant v. Cooke, supra. Food Giant actually held that the issue is whether, under the existing circumstances, defendant’s failure to discover the hazard prior to plaintiff’s fall was “the result of the breach of [defendant’s] legal duty to inspect the premises. If so, an inference would arise from that breach [of duty] of [defendant’s] constructive knowledge of the presence of the oil on its floor.” (Emphasis supplied.) Food Giant, supra at 255; see Daniel, supra at 224. Food Giant involved an amount of motor oil of such size and visibility that even the plaintiff admitted she would have seen it if she had been looking, but since there was no evidence Food Giant had complied with its inspection and cleaning procedures that day, the plaintiff was not required to show the oil had been on the floor for a period of time in which Food Giant could have discovered it. See Daniel, supra at 225. Facing this factual stalemate, we held Food Giant “did not negate the possibility that, under the existing circumstances, its failure to have discovered the presence of the oil was the result of its failure to exercise reasonable care in inspecting the premises.” (Emphasis supplied.) Food Giant, supra at 256. We concluded the issues in that case were jury questions. It is important to note that Food Giant carefully did not hold there was an inference of constructive knowledge in that defendant; we merely said that “as to the issue of [Food Giant’s] constructive knowledge of the oil, the trial court did not err in denying summary judgment.” Id. Thus, Food Giant does not stand for the idea that an inference of defendant’s constructive knowledge will arise if it does not show compliance with reasonable inspection and cleaning procedures, and Mallory’s reliance on Food Giant for that idea was misplaced.

It is thus indisputable that going back to the original source of the dissent’s “rule” {Mallory), we meet not the rule but the proposition relied on in this opinion: that an inference of constructive knowledge based on failure to inspect arises only if there is evidence defendant’s failure to discover the foreign substance was the result of its failure to inspect. Daniel, supra.

In this case there is no evidence the defendant’s employees could have found and removed a supposed wet spot if they had inspected and cleaned or swept the area. Any such conclusion must be plucked from the air. There is no evidence to suggest that if Kroger’s employees had inspected, cleaned and swept this floor, they would have discovered or removed anything. The wet spot was barely visible, if at all, to those who crawled on the floor looking for it. It cannot be speculated that “sweeping” would have removed the hazard. The most diligent sweeping in every nook might have smeared the substance, whatever it was. There is simply no evidence that Kroger’s supposed failure to inspect and clean caused its failure to discover the alleged wet spot.

According to the dissent’s view of Daniel, a plaintiff can take such a case as this through trial, even though the evidence shows nobody could have seen the wet spot without crawling on the floor and despite the fact that the idea that inspection or cleaning or sweeping would have removed it is sheer speculation. The dissent’s rule never existed. To impose it in this case would create an absolute inference of constructive knowledge in the defendant of any foreign substance even if there is no evidence the defendant could have discovered it, and even where the hazard was invisible or barely visible. This would be contrary to Daniel and all the cases it cites.

A correct rule is that in the absence of evidence that a reasonable inspection would have discovered the foreign substance, no inference can arise that defendant’s failure to discover the substance was the result of its failure to inspect. Daniel, supra. We know of no case or rule which requires a proprietor or its employees to crawl on the floor at regular intervals to discover and remove every otherwise hidden or invisible hazard.

Where the moving party discharges his burden to show an absence of evidence supporting the non-moving party’s case, the non-moving party cannot rest on his pleadings or unsupported assertions but “must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). As no inference arises that Kroger’s failure to discover the foreign substance was caused by its alleged failure to “actually perform” an inspection, no inference arises that appellant’s injuries were caused by Kroger’s presumed failure actually to perform its routine inspection that day. Kroger cannot be charged with constructive knowledge of this substance based on its failure to testify that it actually carried out its usual inspection.

2. Since Kroger has shown conclusively that it had no actual knowledge of a dangerous condition on the floor and the evidence raises no inference of constructive knowledge, appellant’s case rests solely on the proposition that an employee was in the immediate vicinity of the foreign substance and should have discovered and removed it. Court of Appeals Rule 27 (a) (1) requires appellant to cite such parts of the record or transcript essential to consideration of his case, but in violation of this rule and in complete failure to support his assertion that an employee of the defendant was in the immediate vicinity of his fall, appellant cites no such evidence to this Court. There can be no inference that there was an employee in the immediate vicinity, for the evidence offered by appellant is too uncertain and at best raises only conjecture or possibility. Moore v. Winn-Dixie Stores, 216 Ga. App. 72 (2) (a) (454 SE2d 532). Moreover, since appellant insists the substance was invisible and he could not have seen it if he had been “crawling” on the floor, there exists no reasonable basis from which to conclude that, even if there had been an employee in the immediate vicinity, that employee should have discovered and removed this particular hazard. Daniel, supra at 224.

Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts most favorable to the non-moving party, concludes the evidence does not create a genuine issue of material fact. Lau’s Corp., supra at 495. The dissent’s position does not rest on a genuine issue of fact but on the supposition and speculation that this wet spot was invisible or barely visible to anyone crawling on the floor. In our opinion, summary judgment to the defendant was correctly granted in this case.

Judgment affirmed.

Birdsong, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur and concur specially. Beasley, C. J., concurs specially. Pope, P. J., and Blackburn, J, dissent. McMurray, P. J., dissents without opinion.