Fairview Park, Ltd. P'ship v. Roddenberry

• Decision Date: 09 June 2022
• Docket Number: A22A0821
• Parties: FAIRVIEW PARK, LIMITED PARTNERSHIP et al. v. RODDENBERRY.
• Court: Georgia Court of Appeals

364 Ga.App. 247

874 S.E.2d 408

FAIRVIEW PARK, LIMITED PARTNERSHIP et al.

v.RODDENBERRY.

A22A0821

Court of Appeals of Georgia.

June 9, 2022

Blasingame Burch Garrard & Ashley, Robert Stanley Huestis, for Appellant.

Dozier Law Firm, John William David Dozier, Macon, for Appellee.

Brown, Judge.

Following a slip and fall at Fairview Park Hospital, Glenda Roddenberry filed suit against Fairview Park, Limited Partnership ("Fairview"), the owner and operator of the hospital, and Hospital Housekeeping Systems, LLC ("HHS"), the independent contractor that provided janitorial services to the hospital (collectively "defendants"), for injuries she sustained. Defendants moved for summary judgment, which the trial court denied. We granted defendants’ application for interlocutory appeal in order to review the trial court's ruling, which we now affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Ingles Markets v. Seymour , 356 Ga. App. 889, 849 S.E.2d 715 (2020). So viewed, the record shows that Roddenberry stayed with her husband overnight while he was a patient at Fairview Park Hospital and slipped and fell on a "trail" of a substance on the floor — presumed to be water — while walking near the nurses’ station, injuring her knee and wrist. Roddenberry did not see the substance until after she had slipped on it. Roddenberry described the substance as odorless and colorless and testified that her jeans were "wet" after the fall and that she felt wetness on her hand. Unidentified nurses at the nurses’ station told Roddenberry that the water "must have got on there from the janitor where she pulled the trash bag out and then — and left a trail of water on [the floor]" because "it was leaking when she took it out." Roddenberry was not sure if the nurse saw the substance before she slipped, though at one point in her deposition she confirmed that the nurse did not see the substance before Roddenberry slipped, but she saw it after Roddenberry slipped. Sometime after the fall, a janitor came into Roddenberry's husband's hospital room and said she was sorry that Roddenberry had fallen.

Roddenberry sued Fairview and HHS, alleging that defendants failed to provide sufficient warning of the substance by failing to inspect and discover the substance, failing to remove the substance, and by failing to use ordinary care to prevent hazardous conditions that could result in a slip and fall incident. Defendants moved for summary judgment, alleging that Roddenberry failed to provide any evidence that defendants had actual or constructive knowledge of the dangerous condition, caused or contributed thereto, or that the conduct of any HHS employee proximately caused the incident. The trial court denied defendants’ motion. Although it concluded that there was no evidence presented that defendants had actual knowledge of the substance on the floor prior to the incident, it found genuine issues with regard to constructive knowledge. With regard to constructive knowledge, the trial court acknowledged that Roddenberry had not established that an employee was in the immediate vicinity with an opportunity to correct the hazard but that constructive knowledge was inferred because defendants presented no evidence that they conducted inspections or had any other policy or procedure in place. The court referenced testimony from a hospital nurse that he was trained to put up wet floor signs as soon as possible or immediately upon seeing a spill for the safety of patients and family members.¹ This nurse deposed that there was neither a policy nor specific instructions in place for someone to routinely inspect the floor "every 30 minutes or every hour," it was just part of "yearly competency training.... [W]e're trained when we see a spill to address that as quickly as possible in putting up wet floor signs and, you know, just maintaining a safe area for the patients and patient family members." The trial court concluded, however, that whether inspections were reasonable and sufficiently carried out was a question for a factfinder, which warranted the denial of summary judgment to both defendants.

1. Defendants contend that the trial court erred in finding that Fairview's constructive knowledge could be inferred where Roddenberry offered only speculation that the "indiscernible substance was discoverable by a reasonable inspection procedure." We disagree.

In order to recover in a premises liability action against an owner, a plaintiff must establish "(1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant's actions or to conditions under the defendant's control." American Multi-Cinema v. Brown , 285 Ga. 442, 444 (2), 679 S.E.2d 25 (2009). In this case, there is no evidence that Fairview had actual knowledge of the substance on which Roddenberry slipped. Accordingly, Roddenberry must point to some evidence that Fairview had constructive knowledge of the substance.

Constructive knowledge can be established in one of two ways: (1) by evidence that employees were in the immediate vicinity and easily could have noticed and removed the hazard, or (2) by evidence that the substance had been on the floor for such a time that (a) it would have been discovered had the proprietor exercised reasonable care in inspecting its premises, and (b) upon being discovered, it would have been cleaned up had the proprietor exercised reasonable care in its method of cleaning its premises.

(Citation and punctuation omitted.) Prescott v. Colonial Properties Trust , 283 Ga. App. 753, 755 (1), 642 S.E.2d 425 (2007). "Constructive knowledge [also] may be inferred when there is evidence that the owner lacked a reasonable inspection procedure." (Citation and punctuation omitted.) Ingles Markets v. Martin , 236 Ga. App. 810, 811, 513 S.E.2d 536 (1999). "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." Id. "[I]n order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident." Straughter v. J.H. Harvey Co. , 232 Ga. App. 29, 30 (1), 500 S.E.2d 353 (1998).

Although Fairview produced its Safety Management Plan and Hazardous Material and Waste Management Plan in response to Roddenberry's first request for production of documents, those plans do not list specific policies or procedures to be followed or detail a program in place at the hospital for inspecting the floor for hazardous or dangerous substances. Moreover, although the hospital nurse deposed that he was trained to put up wet floor signs as soon as possible or immediately upon seeing a spill for the safety of patients and family members, he did not testify that the hospital had in place an inspection policy or procedure. Because Fairview failed to present evidence of reasonable inspection procedures, an inference of constructive knowledge can be established, and the trial court correctly denied summary judgment to Fairview. See Prescott , 283 Ga. App. at 755 (1), 642 S.E.2d 425 ; Davis v. Bruno's Supermarkets , 263 Ga. App. 147, 150 (1), 587 S.E.2d 279 (2003) (where store failed to present evidence of reasonable inspection procedure, plaintiff has the benefit of an inference of the store's constructive knowledge of the hazard). See also Jones v. Krystal Co. , 231 Ga. App. 102, 105 (e), 498 S.E.2d 565 (1998).²

2. Defendants next contend that the trial court erred by finding an issue of fact as to HHS's constructive knowledge of the hazard given that HHS is not an owner or occupier of the premises and Roddenberry offered no evidence that HHS was negligent. In essence, defendants believe that the trial court erroneously conflated the duty owed by Fairview, the owner/occupier of the premises, with that owed by HHS, the independent contractor. We agree.

"In contrast to an owner/occupier, which has a nondelegable duty to exercise ordinary care to keep the premises safe for invitees, a cleaning service has no independent duty to inspect the premises of the occupier for the safety of the occupier's invitees." (Citation and punctuation omitted.) Prescott , 283 Ga. App. at 756 (2), 642 S.E.2d 425. See also Taylor v. AmericasMart Real Estate , 287 Ga. App. 555, 557 (1) (a), 651 S.E.2d 754 (2007) ; Greene v. Piedmont Janitorial Svcs. , 220 Ga. App. 743, 744 (2), 470 S.E.2d 270 (1996) (" OCGA § 51-3-1 imposes on the janitorial service no independent duty to inspect the premises of the occupier for the safety of the occupier's invitees."). Here, as set out above, the trial court applied premises liability law to both defendants, treating them both as owners of the hospital; defendants are...