Colbert v. Piggly Wiggly Southern

• Decision Date: 07 May 1985
• Docket Number: No. 69878,69878
• Parties: COLBERT v. PIGGLY WIGGLY SOUTHERN
• Court: Georgia Court of Appeals

Page 304

332 S.E.2d 304

175 Ga.App. 44

COLBERT v. PIGGLY WIGGLY SOUTHERN.

No. 69878.

Court of Appeals of Georgia

May 7, 1985.

Rehearing Denied June 5, 1985.

Certiorari Denied June 27, 1985.

Charles M. Cork, III, Macon, for appellant.

John C. Edwards, Macon, for appellee.

BIRDSONG, Presiding Judge.

This action was brought against Piggly Wiggly Southern for injuries sustained when appellant Colbert slipped and fell. The evidence shows the fall occurred on a rainy day, although there is dispute whether it was raining at the time of Mrs. Colbert's fall. It is undisputed that Mrs. Colbert entered appellee's store and stepped onto a dark mat that was placed inside the door to catch dirt and water, and as she stepped off the rug onto the floor, her right foot slipped on the floor. A store courtesy clerk had been regularly mopping the area, had just finished mopping up water around the mat, and had left a mop and bucket nearby partially concealed by a door. Mrs. Colbert never saw any water on the floor; however, after she fell, she felt the floor with her hands and it was damp and looked wet. The floor looked shiny to her, just as it does when waxed.

On motion for summary judgment, appellee produced the recent case of McGauley v. Piggly-Wiggly Southern, 170 Ga.App. 851, 319 S.E.2d 15 as being nearly identical and on point, and summary judgment was granted to Piggly Wiggly. Colbert appeals. Held:

1. This case is distinguished from McGauley, supra, in that this plaintiff gives undisputed evidence that she slipped upon a damp or wet floor, while in McGauley the plaintiff did not know how or why she slipped.

In 1965, we issued a comprehensive opinion on the issue of liability in cases of slip and fall specifically on floors made wet by rain conditions. Gibson v. Consolidated Credit Corp., 110 Ga.App. 170, 138 S.E.2d 77. In summary, we concluded that the owner of such premises is not an insurer of safety of persons invited therein, nor is there any presumption of negligence on the part of the owner or occupier merely upon a showing of injury. Id., p. 178, 138 S.E.2d 77. 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. Id. p. 173, 138 S.E.2d 77. See Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327. It is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the door is likely to be wet; it is a matter of common knowledge that some water will normally be present where shoppers pass during rainy weather. Gibson, supra, 110 Ga.App. pp. 173-175, 138 S.E.2d 77. Hill v. Davison-Paxon Co., 80 Ga.App. 840, 57 S.E.2d 680. It is not the duty of persons in control of such buildings to keep a large force of moppers to remove the rain as fast as it collects. Gibson, supra, 110 Ga.App. pp. 174, 176, 138 S.E.2d 77. The duty owed to such invitees is one of ordinary care, or to protect against an unreasonable risk of harm. Id., p. 173, 138 S.E.2d 77. The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate. Gibson, supra, p. 177, 138 S.E.2d 77; Hill, supra, 80 Ga.App. p. 842, 57 S.E.2d 680.

"Even if the rainfall had ceased completely [as Mrs. Colbert contends in this case] it seems obvious that the defendant, and others in a like position, must be afforded a reasonable opportunity for mopping the water from the floor. Until such time as one who enters might reasonably expect to find the floor free of water he should expect to find water present." Gibson, supra, 110 Ga.App. p. 177, 138 S.E.2d 77.

The appellee's employee had been assigned to mop the doorway regularly because of accumulating water and told Mrs. Colbert he had just finished mopping the area where Mrs. Colbert fell. This was reasonable and ordinary care on appellee's part, even assuming that it was not raining when Mrs. Colbert entered the store and assuming she did not have equal knowledge of the hazard. To say otherwise would render appellee an insurer of its customers' safety, which he is not in this state. Key v. J.C. Penney Co., 165 Ga.App. 176-177, 299 S.E.2d 895. In Alterman Foods, supra and Key v. J.C. Penney Co., supra, it was held that the plaintiff must, at minimum, show that the defendant was negligent. There is simply no evidence of negligence on the part of this appellee. To the contrary, the evidence is undisputed that, under the rainy conditions, the appellee exercised "such diligence toward making the store safe as a good business man is in such matters accustomed to use. [Cits.]" Alterman Foods, supra, 246 Ga. p. 624, 272 S.E.2d 327. Key v. J.C. Penney Co., supra. The trial court did not err in granting summary judgment to the appellee.

It is noted that in Weight Watchers v. Welborn, 165 Ga.App. 290, 299 S.E.2d 760 and Telligman v. Monumental Properties, 161 Ga.App. 13, 288 S.E.2d 846, the court "rejected the argument that the equal knowledge of the parties as to weather conditions would bar the plaintiff from recovering, holding that the plaintiff would be barred only if she knew of the specific hazard which caused her fall." (Emphasis supplied.) Weight Watchers, supra, 165 Ga.App. p. 291, 299 S.E.2d 760. Those cases are distinguished by the fact that the proprietor in each case was in fact negligent in failing to exercise ordinary or reasonable care in the maintenance of the premises under the prevailing weather conditions. See Gibson, supra, 110 Ga.App. pp. 173, 177, 138 S.E.2d 77.

2. Appellant asks us to decry the equal knowledge/superior knowledge rule as being illogical, untenable and distortive of the issues in a negligence case. Appellant contends the superior knowledge rule is not "the true ground of liability" of the owner of business property to invitees. Gibson, supra, p. 173, 138 S.E.2d 77. Sears, Roebuck & Co. v. Reid, 132 Ga.App. 136, 138, 207 S.E.2d 532. Appellant asserts that a comparison of knowledge of the two parties is pointless and inappropriate because the true ground of liability is the proprietor's duty to exercise ordinary care and the reasonableness of his acts. However, the superior knowledge rule is based upon the proprietor's duty to exercise due care while not being an insurer of the invitee's safety. "The owner of premises has the duty to keep them in a safe condition for invitees. [Cit.] However, an owner is not an insurer of an invitee's safety. [Cit.] ... The basis of the proprietor's liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. [Cit.] Thus we can characterize the rule in relation to a 'static condition' as being that the basis of liability of an owner to an invitee who is injured is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury. [Cit.] Inglett v. Winn Dixie, Greenville, 168 Ga.App. 192, 193-194, 308 S.E.2d 587 (1983)." Durrance v. Bacon County Hosp. Auth., 172 Ga.App. 1-2, 321 S.E.2d 767. See also Hill v. Davison-Paxon, supra, 80 Ga.App. p. 842, 57 S.E.2d 680.

Appellant also contends the equal knowledge rule should be repudiated because it amounts to an imposition of assumption of risk upon the plaintiff, whereas there are several situations where the plaintiff's equal knowledge will not prevent recovery. See Alterman Foods, supra, 246 Ga. p. 623, 272 S.E.2d 327; City of Silvertown v. Harcourt, 51 Ga.App. 160(3), 179 S.E. 772. The cases are clear, however, that "[t]he basis of the proprietor's liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. Rogers v. Atlanta Enterprises, Inc., 89 Ga.App. 903, 906, 81 S.E.2d 721." Telligman v. Monumental Properties, supra, 161 Ga.App. p. 14, 288 S.E.2d 846; Thomas v. Fabric Outlets, 169 Ga.App. 175, 176, 311 S.E.2d 852.

The situations described in Alterman Foods, supra, 246 Ga. p. 623, 272 S.E.2d 327 and City of Silvertown v. Harcourt, supra, 51 Ga.App. p. 160(3), 179 S.E. 772 where equal knowledge would not as a matter of law prevent recovery, are in fact situations where the plaintiff's knowledge of the defect is not truly equal. Where the knowledge is truly equal, and not mitigated by some justifying emergency, the rule is that the plaintiff is "equally guilty of a lack of ordinary care in voluntary subjecting himself to the risk, and can not recover." City of Silvertown v. Harcourt, supra, p. 162(4), 179 S.E. 772. The basis of this rule is the plaintiff's own duty to exercise ordinary care for his own safety, and his duty to avoid the effect of the proprietor's negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. "He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him. [Cits.]" Alterman Foods, supra, 246 Ga. p. 263, 272 S.E.2d 327.

Finally, appellant contends the equal/superior knowledge rule distorts principles of comparative negligence, which should govern. She...