Drake v. Kroger Co.
| Decision Date | 29 April 1994 |
| Docket Number | No. A94A0155,A94A0155 |
| Citation | 443 S.E.2d 698,213 Ga.App. 72 |
| Parties | DRAKE v. KROGER COMPANY. |
| Court | Georgia Court of Appeals |
Waymon Sims, Janise L. Miller, Atlanta, for appellant.
Webb, Carlock, Copeland, Semler & Stair, James T. Brieske, Douglas W. Smith, Atlanta, for appellee.
Plaintiff Yoaneena Drake filed suit against the Kroger Company ("Kroger") for injuries she sustained when she slipped and fell while shopping at a Kroger supermarket. The trial court granted Kroger's motion for summary judgment, and plaintiff appeals.
Our review of the record reveals that plaintiff was walking down an aisle of a Kroger store with her niece and young daughter when she suddenly slipped and fell backwards injuring herself. In her deposition, plaintiff gave conflicting testimony as to whether she actually saw a wet substance on the floor after her fall, although she was certain her pants were wet when she got up from the floor. Plaintiff also testified in her deposition that she did not notice any Kroger employees on the aisle at the time of her fall.
Three Kroger employees, including the store's co-manager Anthony Frazier, submitted affidavits in support of Kroger's motion for summary judgment. All three employees testified that they had completely searched the aisle for the presence of any foreign substance or liquid following plaintiff's fall and found the floor to be clean, dry and free of any foreign substance. One employee testified that he asked plaintiff to show him the substance she fell on, but when he went to the area she pointed out, he could neither see nor feel anything when he slid his hand and shoes around the floor. Mr. Frazier and the other employees stated in their affidavits that they did not see any wetness or other evidence of a foreign substance on plaintiff's clothing. Mr. Frazier also alleged that it was his responsibility to patrol the entire store, including the aisle where plaintiff fell, on the average of once every 30 minutes to check for spills and foreign substances on the floor. He testified that on the day in question he performed his duties and patrolled the store on the average of once every 30 minutes and saw no spills or evidence of a foreign substance or liquid on this particular aisle the entire day. Mr. Frazier further stated that all employees were required to look for any debris or spills in the store and report or clean them up if they were discovered.
After Kroger filed its motion for summary judgment, plaintiff submitted her affidavit and her niece's affidavit in which they both allege they saw liquid on the store floor following plaintiff's fall. The affidavits also allege that plaintiff and her niece saw Mike Kidd, a Kroger employee, in the immediate area prior to plaintiff's fall. Relying on these affidavits, plaintiff now contends the trial court erred by ruling that no genuine issues of material fact existed for determination by a jury with regard to Kroger's knowledge, actual or constructive, of the existence of a foreign substance on the floor of the store. Plaintiff also argues the trial court erred by finding the supermarket floor where plaintiff fell to be completely clean, dry and free of any foreign substance.
1. In order to establish a proprietor's liability for a slip and fall attributable to a foreign substance on the floor, the plaintiff must show the proprietor had actual or constructive knowledge of the foreign substance and the plaintiff was without knowledge of the presence of such substance. Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). Because no evidence has been presented that Kroger had actual knowledge of the existence of a foreign substance on the floor, the issue presented in this case is whether Kroger had constructive knowledge of the allegedly hazardous condition.
Plaintiff may establish Kroger's constructive knowledge by showing "that a foreign substance had been on the premises for such a time that ordinary diligence by the defendant should have effected its discovery; or that an employee of the defendant was in the immediate area of the hazardous condition and could have easily seen the substance." (Citation omitted.) Jester v. Ingles Market, 206 Ga.App. 327, 328, 425 S.E.2d 323 (1992).
In this case, plaintiff cannot establish constructive knowledge under the first theory because Foodmax v. Terry, 210 Ga.App. 511, 512(1), 436 S.E.2d 725 (1993). There being no question in this case...
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