Feggans v. Kroger Co., A96A2087

• Decision Date: 02 October 1996
• Docket Number: No. A96A2087,A96A2087
• Parties: FEGGANS et al. v. KROGER COMPANY.
• Court: Georgia Court of Appeals

Page 822

476 S.E.2d 822

223 Ga.App. 47

FEGGANS et al. v. KROGER COMPANY.

No. A96A2087.

Court of Appeals of Georgia.

Oct. 2, 1996.

Rodney L. Eason, Atlanta, for appellants.

Webb, Carlock, Copeland, Semler & Stair, James R. Doyle II, Douglas A. Wilde, Atlanta, for appellee.

ELDRIDGE, Judge.

Appellants have appealed from the trial court's order granting summary judgment to appellee, The Kroger Company ("Kroger").

This lawsuit arises out of Ocie Feggans' alleged slip and fall that occurred on November 17, 1994, at the Kroger store located at 3251 Highway 5, in Douglasville, Georgia. Joseph Feggans is the spouse of Feggans and claims loss of consortium due to her injuries.

Feggans entered the Kroger store at approximately 1:50 a.m. As Feggans was walking past the cosmetic counter, on her way to the dairy section, she slipped on a watery type substance and fell. At the time of her fall, Feggans was looking at the floor, but did not see the water prior to her fall. However, Feggans was able to see the water, after it was pointed out to her by a witness to the incident, when she bent over and looked down at the floor. Feggans, after her fall, observed additional streaks of water in the same path.

At the time of Feggans' fall, an employee of Precision Floor Care, who is not a party to this action, was cleaning appellee's floor, which included sweeping, mopping the floor with water, and buffing.

1. In appellants' first enumeration of error, appellants allege that it was error for the trial court to grant summary judgment to appellee "if such motion was granted based on defendant's claim the it was not in possession of the floor at the time of plaintiff's slip and fall."

Under OCGA § 51-2-4, "an employer generally is not responsible for torts committed by his employee when the employee exercises an independent business, and is not subject to the immediate direction and control of the employer." "However, an employer is liable for the contractor's negligence if he 'retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relationship of master and servant or so that an injury results which is traceable to his interference.' OCGA § 51-2-5(5)." Kraft General Foods v. Maxwell, 219 Ga.App. 211, 464 S.E.2d 639 (1995).

Under Kroger's agreement with Precision Floor Care, other than specifying the general parameters for what must be cleaned and what services were to be provided, the manner, method, and means of the cleaning services were left entirely to Precision Floor Care. Precision Floor Care and its employees were able to operate the cleaning equipment and apply all cleaning materials under its own discretion and under its own supervision. Moreover, other than requiring Precision Floor Care to perform its work between the hours of 11:00 p.m. and 7:00 a.m., Kroger did not control specifically when any particular duties were to be performed. The only exception to this rule was if Precision Floor Care made a determination that the floor needed to be stripped. In such circumstances, Kroger management would then decide if the store needed to be closed or if only certain aisles had to be taped off and closed, and what would be the best time for such closure to occur so as not to affect business. This was not the case here.

Appellants assert that Kroger assumed part of the responsibility for training and disciplining the employees of Precision Floor Care. This is not true under the record before this Court. Kroger had only the "general right to order the work stopped or resumed, to inspect its process or to receive reports, to make suggestions or recommendations and to prescribe alterations and deviations" of the work performed, which does not establish that the proprietor exercised control over the manner in which the independent contractor did its work. Englehart v. OKI America, 209 Ga.App. 151, 152, 433 S.E.2d 331 (1993). "Such a general right does not mean that the contractor is controlled as to his methods of work. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." Id. at 152, 433 S.E.2d 331.

In the case sub judice, James Gardener, who is the grocery manager for Kroger, testified in his deposition that he checks to make sure the floor care service has placed signs in the area on which the floor service is working. This fact alone does not establish that Kroger trains the employees of Precision Floor Care Service. It merely establishes that Kroger is insuring that Precision Floor Care is complying with their contractual obligations. As this Court has held in Slater v. Canal Wood Corp. of Augusta, 178 Ga.App. 877, 880, 345 S.E.2d 71 (1986), "[t]he right to observe the fulfillment of the safety requirements with the right to order them fulfilled if the contractor did not do so in the contract is not such control of the work as intended by § 414 of the Restatement 2d, Torts, (or OCGA § 51-2-4) so as to impose liability on the defendant."

Appellants also contend that Kroger controlled the manner in which the floor service performed its job because the deposition testimony of James Gardener shows that Kroger controlled the order in which the services were performed on certain evenings by requiring Precision Floor Care to clean the non-grocery aisles first. However, appellants have misstated and misconstrued Gardener's testimony. Gardener testified, "We start at 10:00 at night spotting groceries. They spot the whole truck here, and they put it up which starts around midnight. It takes about two hours to put fifteen-hundred cases out.... We separate it per aisle back in the back room and bring them out.... I would basically say this is done before he actually starts mopping. Normally, his first -- I don't know what his procedure is, to be honest with you; I would assume it's to sweep the floor first. I would think by the time he's ready to actually start mopping the truck has been processed." Gardener's testimony in no way shows Kroger controlled the manner in which Precision Floor Care performed its job. In fact, Gardener's testimony is that he does not know what the floor care procedure is.

Appellants also claim that Kroger controls the manner in which the floor service employees get paid by requiring Precision Floor Care to leave their employees' paychecks with Kroger on each Monday. Furthermore, appellants suggest that Kroger does not pay for services on evenings the floor care service does not work. These assertions by appellants do not establish that Precision Floor Care was an agent of Kroger. The deposition testimony of James Gardener shows that the employees for Precision Floor Care are paid by the owner of Precision Floor Care. The fact that appellee requires the checks to be left at Kroger to ensure the employees are paid by Precision Floor Care does not establish that appellee exercises control over the manner in which the floor cleaner is paid, and that an agency relationship exists. Additionally, appellants' assertion that Kroger may deduct payment for services not performed does not establish an agency relationship between the two. Kroger has the right not to pay an independent contractor for services not performed. This Court finds that there is no genuine issue of material fact, and the...