Davis v. Bruno's Supermarkets, Inc., A03A2254.

• Decision Date: 10 September 2003
• Docket Number: No. A03A2254.,A03A2254.
• Citation: 263 Ga. App. 147,587 S.E.2d 279
• Parties: DAVIS v. BRUNO'S SUPERMARKETS, INC.
• Court: Georgia Court of Appeals

587 S.E.2d 279

263 Ga. App. 147

DAVIS v. BRUNO'S SUPERMARKETS, INC.

No. A03A2254.

Court of Appeals of Georgia.

September 10, 2003.

Elliott & Haskell, George O. Haskell III, Macon, for appellant.

Martin, Snow, Grant & Napier, Lisa M. Edwards, Richard A. Epps, Jr., Macon, for appellee. ELLINGTON, Judge.

After falling in a supermarket aisle, Kimberly Davis filed this personal injury suit against Bruno's Supermarket, Inc. d/b/a Foodmax. The trial court granted the store's motion for summary judgment, finding that no jury issue existed as to whether the store had constructive knowledge of a hazard because the store had inspected the area shortly before Davis' fall. For the following reasons, we find that the grant of summary judgment was improper and reverse.

We review the trial court's grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.

(Punctuation and footnotes omitted.) Shepard v. Winn Dixie Stores, 241 Ga.App. 746, 747, 527 S.E.2d 36 (1999). Viewed in the light most favorable to Davis, the evidence showed that on April 21, 1999, Davis was walking down the center aisle of the store when she slipped on a puddle of clear liquid the size of a small dinner plate and fell. Davis sued the store, and, in an affidavit supporting the store's motion for summary judgment, Steve Sumner, the manager of the store, stated as follows:

Foodmax regularly and routinely inspects its store floors to ensure that they are clean and dry and free of any debris every 15-45 minutes. This cleaning and inspection process is done at least hourly and was in place and being implemented on April 21, 1999. The center aisle of the store had been inspected within 30-40 minutes of the time Ms. Davis reportedly fell. At the time of the inspection the floor was clean and dry and free and [sic] any debris or water.

Sumner's affidavit also stated that no customers or employees reported a spill in the aisle prior to Davis' fall. Notably, the affidavit did not state the basis for Sumner's statements, in other words, whether they were based on his personal knowledge and observations or based upon the reports of other employees. The affidavit did not identify the employee who allegedly inspected the aisle prior to the fall, and the store did not present an affidavit or deposition testimony of this employee. Further, although Sumner's affidavit alleged that a security guard was on duty and patrolled the premises that evening, it did not identify the guard, and the store failed to present an affidavit or deposition of the guard.

1. On appeal, Davis contends the trial court erred in granting the store summary judgment after finding that no jury issue existed as to whether the store had constructive knowledge of the spill on which she allegedly fell. We agree.

To prove negligence in a slip and fall premises liability case, the plaintiff must show (1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff lacked knowledge of the substance or for some reason attributable to the defendant was prevented from discovering it. [Davis] presented no evidence that [the store] had actual knowledge of the hazard which caused her fall. To establish constructive knowledge, [Davis] must show that (1) a [store] employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by [the store employees] should have discovered it.

(Footnotes omitted.) Shepard v. Winn Dixie, 241 Ga.App. at 747, 527 S.E.2d 36. In this case, it is undisputed that no store employees were in the immediate area when Davis fell, so she relies on the second method of demonstrating constructive knowledge.

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. 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.

(Punctuation and footnotes omitted.) Id. at 748, 527 S.E.2d 36.

In granting the store's motion for summary judgment in this case, the trial court found that Sumner's affidavit was sufficient to show that the store had an inspection program in place and that it inspected the area of Davis' fall 30 to 40 minutes prior to the fall. The trial court did not reach the issue of whether the inspection program was adequate, finding instead that, because the manager stated that it was performed "within a brief period" before the fall, the inspection procedure was presumed to be adequate.¹ See Medders v. Kroger Co., 257 Ga. App. 876, 878, 572 S.E.2d 386 (2002) (inspection presumed to be adequate after store manager testified that she had walked down the aisle five to ten minutes before the plaintiff's fall and did not see a spilled liquid).

We find, however, that the store was...