Gourley v. Food Concepts, Inc.

493 S.E.2d 587, 229 Ga. App. 180, 97 Fulton County D. Rep. 4105, 1997 Ga. App. LEXIS 1545
CourtCourt of Appeals of Georgia
DecidedNovember 5, 1997
DocketA97A1147
StatusPublished
Cited by14 cases

This text of 493 S.E.2d 587 (Gourley v. Food Concepts, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gourley v. Food Concepts, Inc., 493 S.E.2d 587, 229 Ga. App. 180, 97 Fulton County D. Rep. 4105, 1997 Ga. App. LEXIS 1545 (Ga. Ct. App. 1997).

Opinions

McMurray, Presiding Judge.

Plaintiff Honna Hendrickson Gourley brought this tort action against defendant Food Concepts, Inc., doing business as Sizzler Restaurant, seeking to recover for personal injuries sustained when she slipped and fell in defendant’s establishment. After discovery, the trial court granted defendant’s motion for summary judgment, concluding the undisputed evidence showed plaintiff knew or should have known of the hazard posed by the wet and slippery floor near the salad bar in defendant’s restaurant. Held:

“[I]t is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely [her] knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which [plaintiff] observes and avoids.” (Emphasis in original.) Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (2), 16 (288 SE2d 846).

Viewed in the light most favorable to plaintiff as the non-movant, the evidence indicates that plaintiff and her son, nearly 13-year-old Hugh Hendrickson, entered defendant’s establishment at approximately 11:30 a.m., i.e., when defendant first opened for business to the public for that day. Someone had to unlock the door with a key. Plaintiff’s son immediately noticed the “tile floor . . . was very slippery and it was glossy because of the water. It gave it a glossy shine to it. . . . There were no wet floor signs. . . . There was nothing in the hallway that said caution, [wet or] slippery floor.” Hugh Hendrickson affirmed he “said something to [his] mother” about slipping. At the checkout, plaintiff and her son, “just said [to the cashier] the floor was very slippery.” Once plaintiff and her son selected their table, Hugh Hendrickson went to the salad bar, where “[i]t was very slippery. The whole floor was slippery. [Hugh Hendrickson thought] before [defendant] opened [employees] mopped the floor for sanitary reasons.” Hugh Hendrickson “had to hold on to the salad bar a few times, and [he] walked very carefully back because . . . where the exit and enter is, enter the seating area, was very slippery.” Hugh Hendrickson “mentioned to [plaintiff that he] almost slipped by the salad bar.” Hugh Hendrickson “did not see [his mother] fall.”

Plaintiff affirmed that she has “had a problem with [her] memory since the fall.” She testified that she and her son arrived at defendant’s restaurant “[r]ight when they opened the doors.” Plaintiff did not fall right inside the entrance but “close to the salad bar . . . that food bar.” She fell “[t]he second time to the food bar.” But “when [she] made that first trip to the food bar, [it] was [not] the same area that [she] fell. ... It was a different part” of the food bar. Specifically, she “hadn’t been there before.”

[181]*181Plaintiff was wearing rubber-soled tennis shoes. She was “[w]alking back to [her] table, walking towards where the table is, . . . but . . . right there close to the food. . . . [Her] two feet just split, started sliding and [plaintiff went] back.” Plaintiff “was knocked out.” She affirmed “that the floor was slick in some way or slippery.” She “just lost control[; her] feet just started sliding.” There was nothing for plaintiff to grab onto, “[i]t happened so quick[ly].” Plaintiff admitted she realized, when she walked into the restaurant, that the floor was slippery “[a]t the front door.” There were no signs or other warnings, “nothing.” “When [plaintiff] went to the salad bar to get [her] son’s stuff, the floor was normal.” She affirmed that “[a]t the time that [plaintiff] went to get the food for [her] son [at one area of the display], [she] did [not] notice [whether] the floor was slippery in the [other] area where [she subsequently] got [her own] food.”

Plaintiff denied the floor was “continuously slippery from [the front entrance] up until [she] got to the table.” When plaintiff first entered the restaurant and noticed the floor was slippery inside the front entrance, she “looked down . . . [and saw] nothing” to indicate a dangerous floor, “no [accumulated] water or nothing.” That is, she “didn’t see anything visible to the eye.” Plaintiff is “sure that the reason [she] fell was because the floor was slick.” She felt the lighting “was adequate.” After her fall, plaintiff “rubbed the floor and it was like there was a film. You couldn’t see it. Nothing was shiny. It was like a Vaseline feel. It was just like a real greasy film was on there, but the light didn’t make it look wet or any color.” This perceived film did not “leave any type of grease mark or any type of wetness on [plaintiff’s] clothes.”

Defendant’s motion for summary judgment contended “there is no evidence of negligence on [its] part. . . particularly since no wax or wax like substance was even used on the floors, and since the Plaintiff had equal or superior knowledge of any ‘slick’ condition on the floor prior to falling and assumed the risk of her injuries.” In support of its motion, defendant submitted the affidavit of Paul Kaigler, Assistant Manager of the Sizzler restaurant, who deposed that the tiled flooring used at the restaurant “is standard flooring frequently and customarily used in the restaurant business. In addition, the tiles are not made of a slippery substance such as marble.” Furthermore, the tiles are not waxed and are cleaned only with soap and water.

Although the dissent concludes that plaintiff “was told by her son of the condition of the floor near the food bar before she fell,” (dissenting opinion, p. 184, post) the evidence, as recited above, indicates only that Hugh Hendrickson told his mother he almost slipped by the salad bar. Any additional but unimparted knowledge held by Hugh Hendrickson of the floor’s slippery condition cannot be imputed to his [182]*182mother. In plaintiff’s experience, the floor was not continuously slippery from the entrance to the food bars. When plaintiff approached another area of the salad bar to serve herself, there were no visible conditions of accumulated water or fallen food that a prudent patron would see and avoid. Constructive knowledge is not necessarily imputed to the patron who traverses different areas. See Cedartown-Polk County Hosp. Auth. v. Watwood, 195 Ga. App. 321, 322 (393 SE2d 476). In our view, the facts of the case sub judice authorize the favorable inference that the floors had just recently been washed by defendant’s employees with soapy water and were not yet completely dry when someone unlocked the front door and allowed plaintiff and her son to enter the restaurant. Defendant’s knowledge of the presence of soapy water on a floor open to patrons is presumed, since defendant authorized the mopping. Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327); Broomberg v. Hudgens, 206 Ga. App. 797, 799 (3), 800 (426 SE2d 617). Plus, defendant’s cashier was informed of the slippery entrance.

“In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of [her] injury and which could not have been avoided . . . through the exercise of ordinary care.” Alterman Foods v. Ligon, 246 Ga. 620, 624, supra. Defendant is not entitled to summary judgment unless the evidence shows that no genuine issue of material fact remains as to plaintiff’s equal knowledge of the wetness and whether, in the exercise of ordinary care, she could have avoided it. Broomberg v. Hudgens, 206 Ga. App. 797, 799 (3), 800, supra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

ANGELA HOLLY HARBIN v. BOBBY RITCH
Court of Appeals of Georgia, 2022
El Ranchero Mexican Restaurant v. Rosemary Hiner
Court of Appeals of Georgia, 2012
El Ranchero Mexican Restaurant, No. 10, Inc. v. Hiner
728 S.E.2d 761 (Court of Appeals of Georgia, 2012)
Ward v. Autry Petroleum Co.
637 S.E.2d 483 (Court of Appeals of Georgia, 2006)
Flagstar Enterprises, Inc. v. Burch
600 S.E.2d 834 (Court of Appeals of Georgia, 2004)
Berson v. American Golf Corp.
595 S.E.2d 622 (Court of Appeals of Georgia, 2004)
Helton v. Riverwood International Corp.
581 S.E.2d 687 (Court of Appeals of Georgia, 2003)
Taylor v. Golden Corral Corp.
567 S.E.2d 109 (Court of Appeals of Georgia, 2002)
McHenry v. Longhorn Steak, Inc.
560 S.E.2d 731 (Court of Appeals of Georgia, 2002)
Jackson v. Waffle House, Inc.
537 S.E.2d 188 (Court of Appeals of Georgia, 2000)
Freyer v. Silver
507 S.E.2d 7 (Court of Appeals of Georgia, 1999)
Gourley v. Food Concepts, Inc.
493 S.E.2d 587 (Court of Appeals of Georgia, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
493 S.E.2d 587, 229 Ga. App. 180, 97 Fulton County D. Rep. 4105, 1997 Ga. App. LEXIS 1545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gourley-v-food-concepts-inc-gactapp-1997.