Williams v. Kroger Co.

523 S.E.2d 655, 240 Ga. App. 428, 99 Fulton County D. Rep. 3889, 1999 Ga. App. LEXIS 1378

• Court: Court of Appeals of Georgia
• Decided: October 19, 1999
• Docket: A99A1558
• Status: Published

Opinions

Andrews, Presiding Judge.

Mildred Williams appeals from a jury verdict for the defendant on her slip and fall claim. Williams argues the court erred in refusing her motion to strike the jury panel after the judge made remarks to the jury which she claims prejudiced them against her. Williams also contends the verdict was against the weight of the evidence and was contrary to law and principles of justice. We disagree and affirm.

On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. It is well settled that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury, and a court should not decide them except in plain and indisputable cases.

(Citations and punctuation omitted.) Axom v. Wendy’s Intl., 238 Ga. App. 528-529 (1) (518 SE2d 734) (1999).

Accordingly, the evidence at trial, construed to support the verdiet, was that Mildred Williams, after getting her groceries, went to the check-out counter to pay. The cashier told her to go over to customer service to cash her check. Williams turned away to walk over to the customer service counter and then suddenly slipped and fell backward to the floor. Williams said that after her fall, she saw a bag of ice on the floor nearby. A store employee testified that after Williams fell, they found two pieces of ice “at the end of the register.” The ice on which Williams slipped was the type dispensed from a self-service drink machine in the deli. The employee said the ice could not have been there long because there was very little melted water around the ice.

Williams’s husband said that after his wife fell, he looked around and saw a ripped open bag of ice on the floor. He also stated that the only store employee in the vicinity was the cashier who was checking out their groceries. The cashier, who went around to help Williams, said there was a piece of ice next to Williams and that must have been what caused the fall. She said she was unable to see the ice from her position behind the counter. Some children with cups of ice had just come through the line at that same register, and the cashier speculated that they might have dropped some of the ice on the floor, but no one saw them do so. None of the Kroger employees saw a bag of ice on the floor.

1.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the . exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

There was no evidence in this case that any Kroger employee had actual knowledge that there was ice on the floor. The jury could also conclude from the evidence that no employee had constructive knowledge of the ice.

In order to show constructive knowledge, the plaintiff must present evidence that an employee was in the immediate vicinity of the hazard and could easily have seen the substance or that the substance was on the floor for such a length of time that it should have been discovered and cleaned up if the proprietor had exercised reasonable care. Lovins v. Kroger Co., 236 Ga. App. 585, 586 (512 SE2d 2) (1999).

Here, the cashier testified that she could not see the floor from behind her counter and that the ice could possibly have been spilled by some children who had just gone through the check-out line. There was also testimony that the ice cubes looked “intact,” and there was no puddle of water from melting ice at the time Williams fell. Therefore, the jury could have concluded that the only employee in the vicinity could not have seen the ice and also that the ice had been there only for a short time. Accordingly, there was evidence to support the verdict.

2. Williams also argues that the trial court erred in refusing to strike the jury panel after the trial judge made certain comments to the jury. There was no transcript of the jury selection, but it appears that during voir dire, certain jurors expressed concern that the courts were awarding “excessive verdicts” in personal injury cases. The trial judge told them the court did not award anything, it was the jurors who determined the award. After the court’s comment, Williams requested that the court strike the panel, and the court denied the request.

There was no error. The court corrected a false impression held by certain jurors with a simple statement of fact. Williams’s main argument appears to be that the judge was too vehement in his statement. But, Williams makes only conclusory allegations about the judge’s vocal emphasis. Complaints about the tone of voice or demeanor of a trial judge, without more, are not reviewable on appeal unless the appellant has completed a record which will enable an appellate court to review her contentions. Milhouse v. State, 254 Ga. 357, 359 (329 SE2d 490) (1985).

Williams also complains about remarks the judge made to the jury after they reached a verdict. Because Williams can show no harm from these statements, there was no reversible error. Wehunt v. ITT &c. Corp., 183 Ga. App. 560, 562 (359 SE2d 383) (1987).

Judgment affirmed.

Pope, P. J, and Ruffin, J., concur specially.