Sears, Roebuck & Co. v. Reid

207 S.E.2d 532, 132 Ga. App. 136, 1974 Ga. App. LEXIS 1623

• Court: Court of Appeals of Georgia
• Decided: May 20, 1974
• Docket: 49216
• Status: Published

Opinions

Eberhardt, Presiding Judge.

Prince Reid brought suit against Sears, Roebuck & Company seeking to recover for injuries he received when he slipped and fell on a wet spot while entering Sears store in Albany. The case was tried before a jury, resulting in a verdict for plaintiff.

The evidence reveals that plaintiff, who had been a frequent visitor to Sears and was familiar with the premises, had been shopping downtown in Albany on the morning of the occurrence. He testified that "it was a blowing rain before I got there, but it was drizzling when I got there [to Sears].” He stated that he knew that people walking up and down the street that morning got rain on their clothing, raincoats, and shoes, and that when they entered Sears’ door the rain blew in. He knew that his shoes were wet and needed no sign to caution him to this effect. He entered the store through double doors and proceeded across a 5' x 10' non-skid rubber mat recessed so as to be level with the floor, and as he stepped from the mat to the main floor surface both feet went out from under him and he landed on his buttocks. His back and arms were wet from the fall, and there was a puddle of water on the floor. When Reid entered the store he saw that the mat was wet, but because of people going in and out he did not see the water on the floor until just as he fell.

A saleslady for Sears testified that she saw plaintiff fall; that he "slid and set down,” and that the floor "was damp” but that she saw no puddle of water to be mopped up.

Sears appeals with nine enumerations of error complaining, inter alia, of the denial of its motions for directed verdict made at the conclusion of plaintiffs evidence and at the conclusion of all the evidence, and of the denial of its motion for judgment n.o.v. Held:

The evidence, construed in a light most favorable to plaintiff, is wholly insufficient to support a finding of negligence attributable to Sears. There is no evidence of improper construction of the floor or that it was inherently dangerous. The record is silent as to methods, materials, and time of cleaning, waxing or polishing the floor. There is no evidence that it was naturally slick or rendered so by any acts of Sears. Assuming that plaintiff did not slip because of his own wet shoes, the most that can be said is that his fall was caused by the presence of rainwater on the floor blown in by the wind or tracked in by others. However, there is no evidence that Sears had actual knowledge of it, nor is there any evidence as to how long the floor may have been wet.

"The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” 20 RCL 56, § 52. Under this record the condition of the weather affords the only basis upon which Sears could be charged with constructive knowledge of the wet floor. However, it is clear that Sears’ knowledge in this respect was not superior to that of plaintiff, and no sufficient basis for recovery appears under the evidence adduced here. " 'This court has held . . . that a business proprietor cannot reasonably be expected to prevent the presence of some water on a normal floor during a period of time when it is continually raining. Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (2c) (138 SE2d 77); Card v. Chichester’s Baconfield Pharmacy, 111 Ga. App. 358 (141 SE2d 790); Angel v. Varsity, Inc., 113 Ga. App. 507 (148 SE2d 451).’ Bryant v. Rucker, 121 Ga. App. 395, 396 (173 SE2d 875).” Holtzclaw v. Lindsay, 122 Ga. App. 703, 704 (178 SE2d 561). Accord: Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 SE2d 680); Conaway v. McCrory Stores Corp., 82 Ga. App. 97 (60 SE2d 631); Stanton v. Grubb, 114 Ga. App. 350, 351 (2) (151 SE2d 237); Winters v. Morrison’s Cafeteria, 121 Ga. App. 98 (172 SE2d 878). Cf. Roberts v. Bradley, 114 Ga. App. 262 (150 SE2d 720); Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193).

This is not a situation for application of the doctrine of res ipsa loquitur, for it is just as reasonable to conclude that the plaintiff fell because of the condition of his shoes or because of something on them, as it would be to conclude that it may have resulted from some dereliction of duty by Sears in keeping its floor in a reasonably safe condition, of which there is no proof. See and compare Miller v. Gerber Products Co., 207 Ga. 385, 387 (62 SE2d 174).

Argued April 4, 1974 Decided May 20, 1974 Rehearing denied June 17, 1974. Perry, Walters, Lippitt & Custer, Henry C. Custer, for appellant. D. C. Campbell, Jr., Thad Gibson, for appellee.

The denials of Sears’ motions for directed verdict and for judgment n.o.v. are reversed with direction that final judgment be entered in its favor. Code Ann. § 81A-150.

Judgments reversed with direction.

Bell, C. J., Pannell, P. J., Deen, Quillian, Clark and Stolz, JJ, concur. Evans, J., dissents. Webb, J, disqualified.