Blocker v. Wal-Mart Stores, Inc.
| Decision Date | 18 September 2007 |
| Docket Number | No. A07A1855.,A07A1855. |
| Citation | 651 S.E.2d 845,287 Ga. App. 588 |
| Parties | BLOCKER v. WAL-MART STORES, INC. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Thomas A. Nash Jr., Savannah, for Appellant.
Brenda Kaye Katz, Kelly Jane Shepherd, Drew, Eckl & Farnham, Brunswick, for Appellee.
In this slip and fall case, Sallie Blocker appeals the grant of summary judgment to Wal-Mart Stores, Inc. (Wal-Mart), contending that material issues of fact exist as to Wal-Mart's constructive knowledge as shown by (1) whether nearby Wal-Mart employees were in a position to discover the hazard on which Blocker slipped, and (2) whether Wal-Mart should have discovered the hazard according to its routine inspection procedure. We conclude that the trial court correctly ruled that nearby Wal-Mart employees were not in a position to easily see the hazard, but because there was no evidence as to whether Wal-Mart carried out its routine inspection procedures, we must reverse the trial court's ruling on that issue.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
Matjoulis v. Integon Gen. Ins. Corp.1
So viewed, the record shows that in September 2004, Blocker met a friend at Wal-Mart to grocery shop for their church. As Blocker's friend waited in the checkout line, Blocker decided to use the restroom located at the front of the store. On her way back from the restroom, Blocker slipped on a grape on the floor and fell, injuring her knee. Shortly after she fell, Wal-Mart employees attended to her and filled out an incident report based on what Blocker told them.
Blocker sued Wal-Mart for her injury, claiming that Wal-Mart breached its duty to her to keep the store premises reasonably safe. Following discovery, Wal-Mart moved for summary judgment, arguing that it had neither actual nor constructive knowledge of the grape on which Blocker slipped. After a hearing, the trial court granted Wal-Mart's motion, giving rise to this appeal.
In 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. However, the plaintiff's evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff.
Wal-Mart's summary judgment motion focused on the first prong above, i.e., Wal-Mart's knowledge of the hazard.
Where, as here, it is undisputed the defendant lacked actual knowledge of any alleged hazard, the case turns on whether constructive knowledge of the alleged hazard can be imputed to the owner/occupier. Constructive knowledge can be established in two ways. First, constructive knowledge can be demonstrated by showing that an employee was positioned in the immediate vicinity and had the opportunity and means to discover and remove the hazard. Second, constructive knowledge may be shown by evidence that the alleged hazard was present for such a length of time that it would have been discovered had the proprietor exercised reasonable care in inspecting the premises.
(Citation omitted.) Washington v. J.D. Royer Wholesale Florist.3
1. Blocker first contends that the trial court erred in ruling that Wal-Mart employees were not in a position to discover and remove the grape on which Blocker fell. We disagree.
The undisputed record shows that Blocker slipped and fell within an arm's length of the bagging counter at the end of a checkout aisle. In her deposition, Blocker explained that she slipped on a grape as she walked past a line of people at the customer service desk and past other people who were standing at the end of the bagging counter of a checkout aisle. Blocker drew a diagram showing the location of the fall, which was between several people. She further stated that as she fell, two people grabbed her and broke her fall.
(Punctuation omitted; emphasis supplied.) Kroger Co. v. Williams.4 According to Blocker's own testimony and diagram, the grape on which Blocker slipped was located in a busy part of the store in an area which was surrounded by people in line and checking out. Blocker testified that she did not see the grape either on her way to the bathroom or when she slipped on it. Nor was there any evidence that Wal-mart employees were facing or had an unobstructed view of the area where Blocker fell. Under these circumstances, Blocker has not met her burden to show that Wal-Mart employees could have easily seen the grape as they worked in the area. Accordingly, the trial court did not err in ruling that Blocker failed to show Wal-Mart's constructive knowledge by this method.
2. Blocker also contends that the trial court erred in ruling that, in light of Wal-Mart's inspection procedure, Blocker failed to meet her burden of proof of demonstrating how long the grape was present. We agree.
In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. In addition, to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has demonstrated its inspection procedures.
(Emphasis supplied.) Davis v. Bruno's Supermarkets,5 See J.H. Harvey Co. v. Reddick6 (...
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