McDonald's Restaurants of Georgia, Inc. v. Banks

466 S.E.2d 240, 219 Ga. App. 667, 96 Fulton County D. Rep. 36, 1995 Ga. App. LEXIS 1121

• Court: Court of Appeals of Georgia
• Decided: December 5, 1995
• Docket: A95A1547
• Status: Published

Opinions

McMurray, Presiding Judge.

Margaret Banks brought an action against McDonald’s Restaurants of Georgia, Inc. (“McDonald’s”) for injuries she allegedly sustained when she slipped and fell in a pool of rainwater that had accumulated at the bottom of a floor-slope inside a McDonald’s restaurant. McDonald’s denied the material allegations of the complaint and filed a motion for summary judgment.

Banks testified (in her deposition) that the area where she fell was not just wet from rain that had been tracked into the restaurant. She explained that the hazard was a “standing” pool of water (four feet wide) at the base of a five-foot incline that sloped from the restaurant’s doorway. Banks deposed that “[t]here was no mat on the floor or other object of any sort to divert traffic around the puddle [,]” and that she did not see the hazard because she was “focused upon ordering at the counter which was directly ahead as well as [dodging] other customers who were coming toward the door to exit.”

Struggling over apparently conflicting decisions from this Court in slip and fall cases, the trial court (in a detailed order) applied the old maxim that the non-moving party is entitled to the benefit of all favorable inferences on summary judgment and found “that there are jury issues present [as to] whether or not the Plaintiff exercised reasonable care for her own safety and whether or not she was distracted by foot traffic leaving Defendant’s premises.” This interlocutory appeal followed the trial court’s order denying McDonald’s motion for summary judgment. Held:

To withstand summary judgment in a slip and fall case due to a foreign substance on the floor, the circumstances must show (1) that the proprietor had actual or constructive knowledge of the hazard, and (2) that the plaintiff was without equal knowledge of the hazard. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). In the case sub judice, Banks deposed that McDonald’s manager admitted to her after the fall that “he was aware of the area’s propensity to collect and hold water.” This evidence alone would authorize a finding that McDonald’s had constructive knowledge of the water hazard that purportedly caused Banks to fall. See Hardin v. Super Discount Market, 205 Ga. App. 646, 647 (423 SE2d 18). Consequently, the controlling issue is whether Banks had equal knowledge of the alleged hazard, i.e., did she exercise ordinary care for her own safety?

“In Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 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. ‘This testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter.’ Id.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319). In the case sub judice, Banks did not see the floor hazard because she was “focused upon ordering at the counter which was directly ahead as well as [dodging] other customers who were coming toward the door to exit[,]” “while in Barentine, [a store employee, who was not even attempting to evoke Barentine’s attention,] was simply the focus of Barentine’s attention. If the facts of Barentine establish ‘some evidence’ that Barentine exercised reasonable care for his own safety, then clearly [the circumstances of the case sub judice constitute] a much stronger case of such evidence.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291, supra.

The trial court did not err in denying the motion for summary judgment filed by McDonald’s.

Judgment affirmed.

Beasley, C. J., Pope, P. J., Blackburn and Ruffin, JJ., concur. McMurray, P. J., Pope, P. J., Blackburn and Ruffin, JJ., also concur specially. Birdsong, P. J., Andrews, Johnson and Smith, JJ., dissent.