Patrick v. MacOn Housing Authority

552 S.E.2d 455, 250 Ga. App. 806, 2001 Fulton County D. Rep. 2276, 2001 Ga. App. LEXIS 783

• Court: Court of Appeals of Georgia
• Decided: July 6, 2001
• Docket: A01A0066, A01A0067
• Status: Published

Opinions

Andrews, Presiding Judge.

Wanda Patrick slipped and fell in a puddle of water in a common area of an apartment building owned and operated by the Macon Housing Authority. She brought two suits seeking to recover for injuries she suffered in the fall: a premises liability claim against the Authority pursuant to OCGA § 51-3-1 claiming it failed to keep the common area safe for invitees, and a claim based on the principle of respondeat superior against Justice Home Care, Inc. claiming its employee negligently left the water on the floor. The appeal in Case No. A01A0Q66 is from the trial court’s grant of summary judgment for Justice Home Care. We affirm the trial court in this case because Patrick’s claim was based on sheer speculation that Justice Home Care’s employee left the water which caused the slip and fall. The appeal in Case No. A01A0067 is from the trial court’s denial of the Authority’s motion for summary judgment. We reverse the trial court in this case because we find as a matter of law that the Authority exercised reasonable care pursuant to OCGA § 51-3-1 to inspect and keep safe the common area of the building.

Case No. A01A0066

At the time of the slip and fall, Patrick was working as an aide for Crossroads Home Service, a personal care provider, and was about to do laundry for an elderly client who lived in the Authority’s apartment building. Patrick took two steps into the third-floor common area laundry room and slipped and fell in a puddle of water on the floor. Gussie Mae Fleming, who worked as an aide for Justice Home Care, another personal care provider, was also doing laundry in the same laundry room for one of her clients. Fleming had just finished taking clothes out of a washer and putting them into a dryer and was leaving the laundry room when she saw Patrick about to enter the room. As Fleming left the room, she did not see or hear Patrick slip and fall.

At her deposition, Fleming was asked if it was possible she put water on the floor when she transferred clothes from the washer to the dryer by shaking the clothes to straighten them before putting them in the dryer. She responded that she commonly shook clothes to get any knots out before putting them into the dryer, but added that, when she did so, the clothes were not dripping wet but only damp. She could not ever remember water dripping from clothes when she shook them and testified that she saw no water on the floor of the laundry room from the time she entered the room until she left after putting the clothes in the dryer.

At best, this evidence shows only a possibility that Fleming might have shaken a few drops of water from damp clothes, but there is no evidence of it. It might also support speculation that, if some drops were shaken to the floor, they might have formed the puddle of water in which Patrick slipped and fell, but there is no evidence this happened.

Patrick further suggests there was evidence raising a reasonable inference that Fleming negligently spilled water on the floor while attempting to add water to one of the washers. This contention is based on evidence that, after the slip and fall, one of Patrick’s elderly clients, Minnie Etheridge, spoke to a woman who worked as an aide at the building and who admitted to her that she spilled water on the floor of the laundry room while pouring it into a washer.

Etheridge testified that, when she learned Patrick slipped and fell while doing her laundry, she immediately went to look at the laundry room with Patrick. She said a woman was in the laundry room when she and Patrick arrived, and this woman told her that she had spilled water on the floor when she tried to pour extra water into the washer she was using. Etheridge said the woman was “an aide for some company,” wearing a pink top and a white skirt, but she did not know which company. She variously described the woman as “average size[d]” and “big and fat.” Etheridge, who admitted that her eyesight was failing, was not sure of the woman’s height, weight, or race, or whether she could identify the woman if she saw her again.

There was no evidence in the record showing what Fleming was wearing on the day of the slip and fall, nor any other evidence showing she fit a description given by Etheridge. Evidence showed that other residents of the building also had aides who provided personal care services. The record shows no effort was made to have Etheridge identify Fleming as the woman she saw in the laundry room after the slip and fall. No reasonable inference can be drawn from this evidence that Fleming was the woman who told Etheridge she spilled the water.

Moreover, other evidence in the record supports the reasonable inference that Fleming was not the woman who told Etheridge she spilled the water. Patrick testified that, after she fell, she immediately walked to the nearby elevator, asked a person on the elevator to tell Etheridge that she had fallen, and that Etheridge immediately came down to the third floor to meet her. Etheridge testified that she and Patrick went to the third-floor laundry room together and that the woman she spoke to was in the room.

Patrick testified that, as she was entering the laundry room just before she slipped and fell, she passed a woman coming out of the laundry room whom she recognized but did not know by name. This testimony was consistent with Fleming’s testimony that, as she was exiting the laundry room, she passed Patrick entering the room, and that, when she returned to get clothes out of the dryer, she learned from a janitor that Patrick slipped and fell when she entered the room.

These facts support the conclusion that Patrick saw and recognized Fleming just prior to the slip and fall. If Fleming was the woman in the laundry room who admitted in the presence of Etheridge and Patrick that she spilled the water, surely Patrick would have recognized and identified her. However, Patrick made no such identification and said she never spoke to Fleming about the slip and fall. The only reasonable inference is that the woman Patrick and Etheridge saw, and who admitted spilling the water, was not Fleming.

In fact, Patrick testified that she had only heard rumors that a woman who worked in the building spilled the water on the floor, and that Retha Jones, the resident services coordinator at the apartment building, mentioned Fleming’s name in connection with finding out who spilled the water. Jones testified, however, that she had only heard rumors that Fleming spilled the water on the floor. Fleming denied that she poured water into a washer or spilled water onto the floor of the laundry room, and she denied having any conversation with Etheridge in which she admitted doing so. Furthermore, Fleming testified that she knew Etheridge and spoke to her occasionally, but she did not remember seeing her on the day of the slip and fall.

No reasonable inference can be drawn from the above facts that Fleming was the woman who admitted spilling the water. To the contrary, the only reasonable inference which can be drawn from the facts is that Fleming was not the woman who spilled the water. It follows that pure speculation was the only basis for Patrick’s claim that Justice Home Care’s employee, Fleming, negligently left the water on the laundry room floor which caused Patrick to slip and fall.

Only reasonable inferences can give rise to a genuine issue of fact sufficient to preclude summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991). An inference based on mere possibility, conjecture, or speculation is not a reasonable inference sufficient to establish a genuine issue of fact and preclude summary judgment. Pafford v. Biomet, 264 Ga. 540, 544 (448 SE2d 347) (1994); Butler v. Huckabee, 209 Ga. App. 761, 762 (434 SE2d 576) (1993). Where a plaintiff’s proof of causation in a negligence case is based on mere possibilities, or the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it is the duty of the trial court to grant summary judgment for the defendant. Futch v. Super Discount Markets, 241 Ga. App. 479, 482 (526 SE2d 401) (1999). Accordingly, the trial court correctly granted summary judgment in favor of Justice Home Care.

Case No. A01A0067

In this premises liability case, the Macon Housing Authority cross-appeals from the trial court’s denial of its motion for summary judgment on Patrick’s claim that the Authority failed to exercise ordinary care under OCGA § 51-3-1 to keep the common area of its apartment building safe for invitees.

Because Patrick’s slip and fall occurred in the third-floor laundry room, a common area of the apartment building over which the Authority retained control, the Authority was obligated under OCGA § 51-3-1 to exercise ordinary care to keep this area safe for tenants and for Patrick, who was invited by a tenant to perform work for the tenant in this area. Lidster v. Jones, 176 Ga. App. 392, 393 (336 SE2d 287) (1985); Hohnerlein v. Thomas, 186 Ga. App. 282-283 (367 SE2d 95) (1988). In order for Patrick to prevail on her slip and fall claim against the Authority under OCGA § 51-3-1, she had to prove two essential elements: (1) that the Authority had actual or constructive knowledge of the puddle of water which caused her slip and fall; and (2) that she lacked knowledge of the puddle despite the exercise of ordinary care. Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997). Under Robinson, a jury issue existed as to the second essential element concerning Patrick’s knowledge of the puddle and the exercise of ordinary care for her own safety. Accordingly, this case concerns the first essential element of the claim — whether the Authority had actual or constructive knowledge of the puddle of water prior to the slip and fall. There is no claim in this case and no evidence showing that the Authority had actual knowledge of the puddle of water prior to Patrick’s slip and fall. Thus, the issue presented in this case is whether there was sufficient evidence to create a genuine issue of fact for a jury on Patrick’s claim that the Authority had constructive knowledge of the puddle.

In the absence of evidence that the Authority had actual knowledge of the hazard, Patrick could prove the Authority had constructive knowledge by two methods: (1) proof that an employee of the Authority was in the immediate area of the puddle and could have easily seen and removed it prior to the slip and fall; or (2) proof that the puddle had been on the floor of the laundry room for a sufficient length of time that the Authority should have discovered and removed it during a reasonable inspection. Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980); Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968). Because there was no evidence (and no claim by Patrick) that an Authority employee was in a position to see and remove the puddle prior to the slip and fall, this case necessarily involves the second method of proving constructive knowledge.

Under this method, Patrick was required to produce facts showing the puddle at issue was on the floor for a sufficient length of time prior to the slip and fall so that knowledge of the puddle would be imputed to the Authority. Alterman Foods, 246 Ga. at 622-623. In other words, since the Authority is permitted a reasonable amount of time to exercise ordinary care to inspect the common areas of the building and maintain them in a safe condition, proof of the length of time the puddle existed is necessary to determine whether the Authority was afforded a reasonable time within which to inspect and remove the puddle. Kroger Co. v. Brooks, 231 Ga. App. 650, 654 (500 SE2d 391) (1998); Alterman Foods, 246 Ga. at 622.

In the present case, Patrick could not say how long the puddle had been on the floor before she slipped and fell. Nevertheless, this Court has held that a premises liability defendant in a slip and fall case cannot obtain summary judgment on the issue of constructive knowledge by relying on the absence of evidence proving that the hazard had been on the floor long enough to be discovered by a reasonable inspection. Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (500 SE2d 353) (1998); J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 470 (522 SE2d 749) (1999). Under the holding in these cases, Patrick was not required to prove how long the puddle was on the floor unless the Authority first produced evidence to negate Patrick’s claim by showing it had reasonable inspection procedures in place and followed them at the time of the incident. Straughter, 232 Ga. App. at 30; Reddick, 240 Ga. App. at 470; compare Lau’s Corp., 261 Ga. at 491, 495.

In this case, the Authority produced evidence that it adhered to an inspection procedure in which the laundry room at issue was inspected every two hours, and that the floor in the laundry room had been inspected for trash and water about an hour or an hour and a half prior to the slip and fall. The issue is whether inspection every two hours was reasonable under the circumstances, or whether there were conditions on the premises that required the Authority to conduct more frequent inspections to keep the common area laundry room safe.

Aside from the present slip and fall, there is no evidence that any aide, or any elderly resident of the building, or any other person had ever slipped and fallen in any common area of the building, including the laundry rooms. Patrick testified that she had been working as an aide for Etheridge five days a week for four years and, during that period of time, she had never seen any water or other liquid on the floor of the laundry room prior to her slip and fall. She said she had never heard of any other slip and fall. Jones, the resident services coordinator at the building, testified there had never been a previous slip and fall.

Moreover, not a single witness testified to any problem with water on the floor of the laundry rooms. Fleming testified that, although she had heard talk from residents about people pouring extra water into washers, she had never seen it done, nor did she have any knowledge that water had ever been spilled on the floor of a laundry room.

Henderson Reeves, who was the maintenance foreman at the apartment building and had been working there for nine years at the time of the slip and fall, testified that, after the slip and fall, he turned off the water to the sinks in the laundry rooms and posted a notice not to add water to the washers. He did this as a precaution against the possibility that residents might spill water while adding it to a washer, but he had never seen anyone add or spill water. He said mops were put in the laundry rooms, not because of a problem with water on the floor, but as a precautionary measure so that residents could use them if any water got on the floor.

Jones further testified that, prior to the slip and fall, she had heard rumors of residents transferring water from a sink to a washer. However, she had no knowledge that water had ever been spilled on the floor and testified that, prior to the slip and fall, there had been no problems with water on the floor of the laundry rooms.

Clyde Ware, the maintenance mechanic at the apartment building who had been working there for 13 years at the time of the slip and fall, said he also had heard rumors of residents adding water to washers, but he had never seen it done and did not know whether the rumors were true or not. He confirmed that water to the sinks was cut off as a precaution against residents adding water. He testified that, although the laundry rooms had a drain in the middle of the floor in the event water collected, he could not ever recall finding water on the floor of the rooms.

There is no evidence in the record of any dangerous conditions in the laundry rooms caused by the presence of water on the floor. In fact, other than Etheridge’s testimony that an unidentified woman told her she spilled the water that caused Patrick’s slip and fall, there is no evidence that water had ever been spilled on the floor of a laundry room. Moreover, there is no evidence that anyone had slipped and fallen in a laundry room or anywhere else in a common area of the apartment building prior to Patrick. Accordingly, there is nothing in the record to justify imposing a duty on the Authority to inspect the laundry rooms more often than once every two hours.

The circumstances here are different from those in supermarkets or fast food restaurants where the nature of the business creates conditions which cause slip and falls to occur with some frequency. Under those circumstances, we have held that premises owners have a duty to inspect with greater frequency. Alterman Foods, 246 Ga. at 623; Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 748-749 (527 SE2d 36) (2000). Rather, this case involves a common area of an apartment building where a slip and fall had never previously occurred, and the Authority had no reason to believe there were any dangerous conditions in the area that could cause a slip and fall. The Authority had no duty to insure the safety of every invitee against injury, nor did it have any duty to constantly inspect the floors in the absence of unusually dangerous conditions. Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 344 (226 SE2d 142) (1976). The law requires only the exercise of such diligence in making the premises safe as an ordinarily prudent proprietor would be accustomed to use under the circumstances. Emory Univ. v. Williams, 127 Ga. App. 881, 885 (195 SE2d 464) (1973).

On the present facts, we conclude as a matter of law that the Authority exercised the ordinary care required under OCGA § 51-3-1 to keep the common areas safe by inspecting every two hours. Having conducted a reasonable inspection under the circumstances, no constructive knowledge of the puddle may be imputed, and the Authority was entitled to summary judgment.

Judgment affirmed in Case No. A01A0066. Judgment reversed in Case No. A01A0067.

Johnson, P. J., Smith, P. J., Ruffin and Ellington, JJ., concur. Eldridge and Miller, JJ., dissent.