Brown v. Venture

• Decision Date: 15 July 2010
• Docket Number: No. A10A0121.,A10A0121.
• Citation: 699 S.E.2d 439,305 Ga.App. 248
• Parties: BROWNv.HOST/TACO JOINT VENTURE.
• Court: Georgia Court of Appeals

305 Ga.App. 248

699 S.E.2d 439

BROWNv.HOST/TACO JOINT VENTURE.

No. A10A0121.

Court of Appeals of Georgia.

July 15, 2010.

COPYRIGHT MATERIAL OMITTED

Jack F. Witcher, Daniel B. Greenfield, Bremen, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Lindsay M. Gatling, Atlanta, for appellee.

BERNES, Judge.

David R. Brown filed suit against Host/Taco Joint Venture to recover for injuries that he sustained when he slipped and fell on a grease spot while dining in Host's restaurant. Host filed a motion for summary judgment, which the trial court granted. Brown appeals, contending that the trial court's entry of summary judgment in favor of Host was improper since genuine issues of material fact remain for jury consideration as to whether Host had actual or constructive knowledge of the grease spot hazard that caused his fall. We disagree and affirm.

On appeal from a grant of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence

sufficient to create a jury issue on at least one essential element of the plaintiff's case. The defendant does not need to affirmatively disprove the plaintiff's case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

(Citation omitted.) Food Lion, LLC v. Walker, 290 Ga.App. 574, 660 S.E.2d 426 (2008).

So viewed, the record evidence shows that on or about February 11, 2006, Brown visited Host's restaurant to dine with several of his companions. After being seated, Brown's cell phone rang, and he left the table to answer the call. As Brown walked down a hallway away from his table, he slipped and fell on a grease spot that was on the floor. Brown claimed that he did not see the grease spot until after his fall.

The restaurant's on-duty manager responded to the site of the fall. The manager attested that part of her responsibilities included inspecting the restaurant's premises. She stated that the restaurant's inspection policy required her, the bussers, and servers to continuously inspect the floors and to look for any potential hazards or foreign substances. If a potential hazard was observed, the policy required that it be cleaned immediately. If the potential hazard required mopping of the floor, the manager was required to stand at the location of the hazard until a “wet floor” sign was placed in the area and the hazard was mopped and removed. The manager further attested that in accordance with this policy, she had inspected the floors of the dining area every 15 minutes. She stated that she had inspected the area where Brown fell approximately 15 minutes prior to Brown's fall and that the floor had been clean and dry at that time.

[I]n order to recover for injuries sustained in a slip-and-fall action, [a plaintiff] 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.... [T]he fundamental basis for [a defendant's] liability [is] that party's superior knowledge of the hazard encountered by the plaintiff.

(Citations, punctuation and footnotes omitted.) Hardee's Food Systems v. Green, 232 Ga.App. 864, 502 S.E.2d 738 (1998). See also Robinson v. Kroger Co., 268 Ga. 735, 749(2)(b), 493 S.E.2d 403 (1997); Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). Brown does not dispute that Host lacked actual knowledge of the alleged grease spot hazard. Accordingly, the viability of Brown's claim depends upon whether there was evidence that Host had constructive knowledge of the hazard.

To establish constructive knowledge, Brown was required to show either that (1) a restaurant employee was in the immediate area of the hazard and could have easily seen the substance or (2) the alleged hazard remained on the floor long enough that ordinary diligence by the restaurant employees should have discovered it. See Food Lion, LLC, 290 Ga.App. at 576(1), 660 S.E.2d 426. Brown failed to present any evidence showing that Host had constructive knowledge of the hazard in this case.

In opposition to Host's motion for summary judgment, Brown provided an affidavit asserting that prior to his fall, he had observed restaurant employees walk through the hallway and directly over the place where he fell. “But showing that an employee was merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” (Punctuation and footnote omitted.) Hardee's Food Systems, 232 Ga.App. at 866-867(2)(a), 502 S.E.2d 738. Significantly, Brown failed to provide any evidence that the grease spot was present on the floor when the employees passed through the area and that the grease spot could have easily been seen by the employees. In his appellate brief, Brown acknowledges that “the grease spot ... was not initially ‘easily visible.’ ” At his deposition, Brown testified that he did not know the size of the grease spot and that the grease spot was not obvious until after he had fallen.¹ Accordingly, there is no evidence establishing that the grease spot was of a size or nature that would have made it easily visible. Brown's claim that the grease spot could be seen after his fall fails to address the pertinent inquiry as to whether the grease spot was easily visible before the fall. See Haskins v. Piggly Wiggly Southern, 230 Ga.App. 350, 351, 496 S.E.2d 471 (1998) (the pertinent inquiry as to constructive knowledge is whether “the defendant had an employee in the immediate area of the hazard who could have easily seen and removed the hazard before the plaintiff's fall”) (emphasis supplied). See also Stout v. Restaurant Concepts, 227 Ga.App. 41, 42-43(2), 487 S.E.2d 636 (1997). In light of Brown's admission that the grease spot on the floor was not easily visible to him prior to the fall, he has not established that Host's employees could have easily seen and removed it. See Hardee's Food Systems, 232 Ga.App. at 866-867(2)(a), 502 S.E.2d 738; Haskins, 230 Ga.App. at 351-352, 496 S.E.2d 471. Compare Food Lion, LLC, 290 Ga.App. at 577(2), 660 S.E.2d 426; Somers v. M.A.U., Inc., 289 Ga.App. 731, 733, 658 S.E.2d 242 (2008).

Likewise, Brown failed to present any evidence to show how long the grease spot had been on the floor or that the grease spot had remained on the floor long enough that upon the exercise of ordinary diligence, the restaurant employees should have discovered it and removed it.

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. 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.

(Citation omitted.) Food Lion, LLC, 290 Ga.App. at 576(1), 660 S.E.2d 426. Here, the affidavit of Host's on-duty manager described the requirements imposed by the restaurant's inspection policy.² The manager attested that she had inspected the floor of the dining area every 15 minutes in accordance with that policy. She further stated that she had inspected the area where Brown fell 15 minutes prior to his fall and the floor was clean and dry at that time. This evidence established that Host had a reasonable inspection policy in place and that the policy was followed at the time of the fall incident.

Brown failed to present any contrary evidence indicating that Host's inspection policy was unreasonable or that Host's employees were negligent in their inspections. “The mere existence of a dangerous condition does not render the proprietor liable, for the proprietor is not a guarantor of the invitee's safety.” Moore v. Food Assoc., 210 Ga.App. 780, 782, 437 S.E.2d 832 (1993). Although a proprietor has a duty to inspect the premises to discover possible dangerous conditions and to take reasonable precautions to protect the invitee from foreseeable dangers on the premises, “it is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous.” (Citation and punctuation omitted.) Johnson v. Autozone, Inc., 219 Ga.App. 390, 392, 465 S.E.2d 463 (1995). See also Alterman Foods, 246 Ga. at 622, 272 S.E.2d 327. There was no evidence that Host's restaurant premises was unreasonably dangerous.

“[I]n cases where a proprietor has shown that an inspection occurred within a brief period prior to an invitee's fall, we have held that the inspection procedure was adequate as a matter of law.” (Citations and punctuation omitted.) Markham v. Schuster's Enterprises, 268 Ga.App. 313, 314, 601 S.E.2d 712 (2004). Under circumstances similar to those presented here, we have held that inspections conducted within 15 minutes prior to the plaintiff's fall were reasonable. See Adamchick v. Cracker Barrel Old...