Ramirez v. Kroger Company

429 S.E.2d 311, 207 Ga. App. 830, 1993 Ga. App. LEXIS 375

• Court: Court of Appeals of Georgia
• Decided: March 16, 1993
• Docket: A92A1829
• Status: Published

Opinions

Birdsong, Presiding Judge.

Eva Ramirez appeals from the grant of summary judgment to The Kroger Company in her lawsuit arising from a fall in a Kroger store. The record shows Ms. Ramirez was shopping with her daughter; they were about to check out when they started to look for another item. After someone told them the product was on the top shelf on a nearby aisle, Ms. Ramirez went one way looking for the product and her daughter another. While it is not clear who told Ms. Ramirez the location of the product, giving Ms. Ramirez the benefit of the doubt we will assume that it was a Kroger employee.

Before finding the product, however, Ms. Ramirez tripped over a bread tray placed in the aisle by a Kroger employee stocking the shelves. The record shows the bread tray was four or five inches high, two feet by two feet square, and dark grey in color. The floor of the store is off-white.

Apparently relying on our decision in Wal-Mart Stores v. Hester, 201 Ga. App. 478 (411 SE2d 507), the trial court granted summary judgment to Kroger. Ms. Ramirez, however, claims the trial court erred because a genuine issue of material fact exists whether the distraction doctrine applies. Held:

In Wal-Mart Stores v. Hester, supra, we held that a plaintiff’s mere failure to watch where he was going while he shopped would not give rise to application of the distraction doctrine. Ms. Ramirez, however, argues that the distraction doctrine applies in this case because a Kroger employee told her to look on the top shelf of aisle three for the product she wanted.

While our law recognizes circumstances in which Ms. Ramirez might be excused from exercising the degree of care to which the law otherwise holds ordinary and prudent persons, Ms. Ramirez’ attempt to avoid the plain view doctrine is not supported by the record. “The [distraction] doctrine [covers] situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688). Thus, liability is imposed because of the proprietor’s superior knowledge of the object in the aisle and of the item creating the distraction. Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 429 (263 SE2d 171). Here, Ms. Ramirez claims she was distracted because an employee told her where the product could be found and she was distracted while looking for it.

Nevertheless, the distraction doctrine has its limits. See Froman v. Smith, 197 Ga. App. 338, 339 (398 SE2d 413). “One valid line of distinction existing in the so-called ‘distraction’ cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse [her] lack of care for [her] own safety than one who creates an emergency can excuse himself because of its existence.” Redding v. Sinclair Refining Co., supra at 378-379. In this instance, the record shows that Ms. Ramirez was not looking at the product when she fell and that she did not even fall where she was told the product she was looking for could be found. Instead, the record shows, without conflict, that she fell while on her way to that location, and according to the diagrams prepared by the witnesses, at a point where she could not even see the location on the shelf where the item was placed. Under the circumstances, the record shows that Ms. Ramirez failed to exercise ordinary care for her own safety sufficient to bar recovery for her injuries. Therefore, this appeal is controlled by Wal-Mart Stores v. Hester, supra at 478-479.

Accordingly, the plain view doctrine controls: “[0]ne is under a duty to look where [she] is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries.” Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 474-475 (249 SE2d 276). Merchants have the right to put cartons in aisles while shelves are being stocked, and customers may expect to find such objects in the aisles, but merchants must place articles where they do not threaten danger to those using the aisle and where they are in full sight and observation. Big Apple Super Market of Rome v. Briggs, 102 Ga. App. 11, 14 (115 SE2d 385). This record shows the bread tray placed in the aisle was a rather large item, and the dark grey color of the tray contrasted with the off-white color of the floor. Further, the tray was placed in full view. Therefore, the trial court did not err by granting summary judgment to Kroger.

Judgment affirmed. Pope, C. J., Andrews, Johnson and Blackburn, JJ., concur. Carley, P. J., Beasley and Cooper, JJ., dissent. McMurray, P. J., disqualified.