All Am. Quality Foods, Inc. v. Smith

• Decision Date: 27 February 2017
• Docket Number: A16A1669
• Citation: 797 S.E.2d 259,340 Ga.App. 393
• Parties: ALL AMERICAN QUALITY FOODS, INC., v. SMITH.
• Court: Georgia Court of Appeals

340 Ga.App. 393

797 S.E.2d 259

ALL AMERICAN QUALITY FOODS, INC.,

v.SMITH.

A16A1669

Court of Appeals of Georgia.

February 27, 2017

Rod G. Meadows, Stephen Patrick Morris, Stockbridge, for Appellant.

Kristal Starr Ramirez, Covington, for Appellee.

McMillian, Judge.

We granted the application for interlocutory appeal filed by All American Quality Foods, Inc., d/b/a Food Depot ("Food Depot"), from the trial court's denial of its motion for summary judgment on claims filed by Thera Smith in connection with a fall she suffered in a Food Depot store in Covington (the "Store"). Food Depot asserts on appeal that the trial court erred in finding that genuine issues of material fact exist on the issue of its actual or constructive knowledge of the substance that caused Smith to slip and that it was foreseeable that the substance would be spilled on the floor.

Our review of the trial court's summary judgment order is de novo and "we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences." (Citation omitted.) Johnson v. Omondi , 294 Ga. 74, 75, 751 S.E.2d 288 (2013). So viewed, the evidence shows that on October 16, 2012, Smith went to the Store to purchase milk. She passed the cash register and turned to go down an aisle, when she slipped and fell to the floor, hitting her knee. Although she did not see anything on the floor before her fall, afterward she noticed a pink liquid spread out on the floor where she had slipped. Two Store employees came to help her, including a man she believed to be the Store manager, who said that he had seen some children running around with open containers.

The evidence showed that on the day of Smith's fall, Store employees had conducted a regular inspection of the Store's premises during the period from 3:53 to 4:05 p.m.¹ The Store's security video shows that subsequently, at 4:28 p.m., two children were walking in the aisle where Smith fell. They each had drink cans when they bumped into each other, and one of the children appears to glance at the floor at about 4:28:06 p.m. At 4:29:45 p.m., the children reappear in the aisle, this time with an adult, drinking from the containers. A few minutes later, Smith and her son enter the same aisle, where she slipped and fell at 4:35:06 p.m. This appeal followed the trial court's denial of Food Depot's motion for summary judgment.

1. The standard for owners and occupiers of land to keep their premises safe is well established. Under OCGA § 51-3-1, "[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." However, "[t]he owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters," which "includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises." Robinson v. Kroger Co. , 268 Ga. 735, 740, 493 S.E.2d 403 (1997).

It is axiomatic that "proof of a fall, without more, does not give rise to liability on the part of a proprietor." (Citation omitted.) Ingles Markets, Inc. v. Carroll , 329 Ga.App. 365, 367, 765 S.E.2d 45 (2014). Rather, to establish liability for a breach of the duty set forth in OCGA § 51-3-1, a plaintiff must show that the premises owner had superior knowledge of a hazard on the premises, which hazard caused the plaintiff's injury. Robinson , 268 Ga. at 740, 493 S.E.2d 403. The owner's knowledge of the hazard can be actual or constructive. Carroll , 329 Ga.App. at 367, 765 S.E.2d 45.

Smith does not contend on appeal that Food Depot had actual knowledge of the pink liquid's presence on the floor. Rather, she asserts that Food Depot had constructive knowledge of the spill. A plaintiff may demonstrate a proprietor's constructive knowledge of a hazard by showing:

(a) ... evidence that the hazardous condition lasted so long that it would have been discovered and removed if the proprietor had exercised reasonable care in inspecting the premises, or (b) ... evidence that an employee of the defendant was in the immediate vicinity of the hazardous condition and could have easily seen and corrected the hazard.

Barbour-Amir v. Comcast of Georgia/Virginia, Inc. , 332 Ga.App. 279, 283 (2), 772 S.E.2d 231 (2015).

(a) Under the first method of proving constructive knowledge, Smith contends that Food Depot failed to establish that it had a reasonable inspection policy in place, thus relieving her from any duty of showing how long the substance had been in place prior to her fall. See, e.g., Sanderson Farms, Inc. v. Atkins , 310 Ga.App. 423, 427 (2), 713 S.E.2d 483 (2011). However, we fail to see how the inspection policy is relevant to Smith's claim because in this somewhat unusual case, the video evidence establishes how long the substance was on the floor before Smith fell. The spill occurred somewhere between 4:28 to 4:29 p.m. when the children with the open container were in the area of her fall, and Smith fell six to seven minutes later at approximately 4:35 p.m.

In order for a proprietor to be liable, the hazardous condition must have been in place "on the premises for a sufficient period of time such that [he or she] should have discovered and removed the hazard." (Citation and punctuation omitted.) Witt v. Ben Carter Properties, LLC , 303 Ga.App. 107, 110, 692 S.E.2d 749 (2010). See also Berni v. Cousins Properties, Inc. , 316 Ga.App. 502, 505, 729 S.E.2d 617 (2012). We find that under the circumstances, the limited period of time that the substance was on the floor is insufficient as a matter of law to hold that Food Depot should have discovered and removed the liquid prior to Smith's fall. See Alterman Foods, Inc. v. Ligon , 246 Ga. 620, 622, 272 S.E.2d 327 (1980) (A "proprietor is under no duty to continuously patrol the premises in absence of facts showing that the premises are unusually dangerous."); Hagan v. Goody's Family Clothing, Inc. , 227 Ga.App. 585, 587, 490 S.E.2d 107 (1997) (summary judgment appropriate where only evidence showed that hazard had arisen less than two minutes before plaintiff's fall). Cf. Pirkle v. Quiktrip Corp. , 325 Ga.App. 597, 602 (2) (b), 754 S.E.2d 387 (2014) (summary judgment granted where only eight minutes transpired between the fall and inspection that showed no liquid on floor); Markham v. Schuster's Enterprises, Inc. , 268 Ga.App. 313, 314, 601 S.E.2d 712 (2004) (plaintiff slipped and fell only five to ten minutes after manager inspected the area). Therefore, Smith failed to establish that Food Depot had constructive knowledge of the hazard under the first method.

(b) In the alternative, Smith asserts that the Store manager should have anticipated that the liquid would be spilled on the floor based on his sighting of children with open containers and that he should have taken reasonable precautions to prevent any ensuing hazard.²

Although a proprietor has a duty to protect its invitees "from the misconduct of other persons who come upon the premises," "the duty of interference on the proprietor's part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger." (Citations and punctuation omitted.) Carroll , 329 Ga.App. at 367, 765...