Cook v. Home Depot, Inc.

• Decision Date: 02 May 1994
• Docket Number: No. A94A0374,A94A0374
• Parties: COOK et al. v. The HOME DEPOT, INC.
• Court: Georgia Court of Appeals

Page 35

447 S.E.2d 35

214 Ga.App. 133

COOK et al. v. The HOME DEPOT, INC.

No. A94A0374.

Court of Appeals of Georgia.

May 2, 1994.

Reconsideration Denied May 27, 1994.

Certiorari Denied Sept. 8, 1994.

Moffett & Henderson, F. Glenn Moffett, Jr., L. Prentice Eager III, Atlanta, for appellants.

Goldner, Sommers, Scrudder & Bass, C.G. Jester, Jr., Atlanta, William W. Horlock, Jr., Augusta, for appellee.

BEASLEY, Presiding Judge.

Cook was injured in a Home Depot store when a piece of plywood measuring four feet by eight feet by one-half inch landed on his foot. He and his wife sued Home Depot, which was awarded summary judgment.

Construing the evidence most favorably to the Cooks, Shannon Cook entered a Home Depot store to purchase some lumber. He approached a stack of plywood sheets five feet high. Because of that height, he could not properly see the top sheet. He touched it in an effort to determine if the plywood was what he wanted; it fell onto and broke his foot.

Appellants' complaint alleges negligence in failing to keep the premises safe, failing to store the plywood properly, failing to warn patrons of the dangers of removing lumber without assistance, and failing to have enough employees to assist customers in the lumber department.

1. The principle of equal or superior knowledge is not limited to slip and fall cases, but "applies to 'static' defective or dangerous conditions on property. [Cit.]" Georgia Ports Auth. v. Hutchinson, 209 Ga.App. 726, 727(2), 434 S.E.2d 791 (1993). " ' " '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 ... and not known to the person injured that a recovery is permitted.' (Emphasis in original.) (Cit.)" (Cit.)' [Cit.]" Westbrook v. M & M Supermarkets, Inc., 203 Ga.App. 345(1), 416 S.E.2d 857 (1992). "Although expressed in the context of a slip and fall case, the principle restated in Alterman v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) is also applicable here: The dangerous instrumentality must have been known to the proprietor and unknown to the invitee before the invitee can recover. [Cit.]" Sarantis v. Kroger Co., 201 Ga.App. 552, 411 S.E.2d 758 (1991).

The Cooks have made no showing that Home Depot was actually aware of the condition of the stacked plywood. Without actual notice of any defect in the storage of the plywood, Home Depot could still be liable if it had constructive notice of a dangerous condition. Flood v. Camp Oil Co., 201 Ga.App. 451, 452, 411 S.E.2d 348 (1991). But, as in Madaris v. Piggly Wiggly Southern, Inc., 205 Ga.App. 405, 406-407(2), 422 S.E.2d 273 (1992), "there was no evidence that there was any employee of appellee in the immediate vicinity who could easily have noticed [the dangerous condition]."

"Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)" (Emphasis supplied.) [Cit.]' [Cit.]" Thompson v. Regency Mall Assoc., 209 Ga.App. 1, 3(1), 432 S.E.2d 230 (1993). There was no proof of the length of time that the dangerous condition existed.

The Cooks contend that Home Depot had constructive notice of the condition because of knowledge of similar incidents. The only similar incidents of which there is any evidence in the record concern lumber being pulled down by customers, causing injury, and articles other than lumber being dropped by customers. These are not sufficiently similar to give Home Depot constructive notice of any defect in the stacking of this plywood such as would cause the incident described by Mr. Cook. There is no evidence that Home Depot had superior knowledge of any defect in the way the plywood was stacked.

The Cooks also argue that on the issue of superior knowledge Home Depot bears the burden on summary judgment and has not met that burden. The defendant may satisfy its burden by showing that there is an absence of evidence as to one or more essential elements of plaintiff's claim. Lau's Corporation v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). "On appellee's motion for summary judgment [cit.], even assuming appellee had knowledge of the peril, it was appellant's burden to come forward with specific evidence that appellee's knowledge of the peril was superior, for that is the true ground of the proprietor's liability." Minor v. Super Discount Markets, Inc., 211 Ga.App....