Flood v. Camp Oil Co., A91A1105

• Decision Date: 09 October 1991
• Docket Number: No. A91A1105,A91A1105
• Citation: 201 Ga.App. 451,411 S.E.2d 348
• Parties: FLOOD v. CAMP OIL COMPANY.
• Court: Georgia Court of Appeals

Page 348

411 S.E.2d 348

201 Ga.App. 451

FLOOD v. CAMP OIL COMPANY.

No. A91A1105.

Court of Appeals of Georgia.

Oct. 9, 1991.

William U. Hyden, Jr., Samuel C. Finster, Sr., Summerville, for appellant.

Shaw, Maddox, Graham, Monk & Boling, Julius Peek, Jr., Rome, for appellee.

POPE, Judge.

This appeal arises from the grant of summary judgment to defendant Camp Oil Company in a negligence action brought by plaintiff Virginia Flood for injuries she sustained when she slipped and fell at a convenience store operated by defendant. Plaintiff testified at her deposition that she went to the store to purchase gasoline for her car. She pulled up to a self-service pump island and then went into the store to pre-pay for the gasoline. It was raining and the concrete pavement on the premises was wet. As she walked from the pump toward her car with the nozzle in her hand she slipped and fell, sliding approximately three feet. She testified she was being careful because the water on the pavement "[looked] like it does at any service station. It ... looked oily, you know, like it had something mixed in with it." Before she was transported to the hospital by ambulance her son arrived and, according to his affidavit, he observed a large quantity of an oily liquid on and around the pump island which he believed to be diesel fuel. Plaintiff claims she fell because defendant was negligent in failing to keep the premises free from the hazard caused by the diesel fuel mixed with water on the pavement.

Defendant presented the affidavit of the store manager who had been away from the store and drove up to the premises just before plaintiff fell. The manager went to assist plaintiff when she noticed plaintiff sitting on the pavement. According to the manager, she inspected the area where plaintiff had fallen and observed no foreign substance on the pavement. She also attested it was her practice to inspect the premises routinely and to clean up any spills seen by an employee or reported by a customer. On the day in question, she received no reports of spills or foreign substances on the grounds from either customers or employees. Plaintiff submitted the affidavit of the clerk on duty at the store on the day in question. The clerk had been at work for about two hours when plaintiff fell. According to the clerk, her primary responsibility was to operate the cash register inside the store and then to inspect and clean the fuel pump island when she was not otherwise occupied inside the store. On the afternoon in question, she had been too busy operating the cash register inside the store to inspect the fuel pump island. Immediately after plaintiff fell, however, she received reports from several customers that fuel was spilled over the concrete near the pump island. According to the clerk, one of the fuel pumps "was always leaking on and off" and, when so informed by a customer, she would place a sign on the pump indicating it was out of order. Plaintiff's son also attested he had observed a large quantity of an oily liquid, which he believed to be diesel fuel, on and around the pump island at defendant's store on a date prior to the day plaintiff fell.

The trial court granted summary judgment to defendant on the ground that the record shows plaintiff possessed knowledge of the allegedly dangerous condition equal to that of defendant. Plaintiff's statements concerning her observations of the condition of the pavement show she was aware the wet pavement was oily to the degree that wet pavement at any service station could be oily. In this case, however, plaintiff has alleged a particular hazard, in excess to that normally caused by rain water at a service station, was created by diesel fuel leaking from a pump. No evidence was presented to show plaintiff had equal knowledge of this hazard. Thus, the facts of this case are distinguishable from those cases cited by the trial court in support of its conclusion that plaintiff is precluded from recovering because of her equal knowledge. See, e.g., Kersey v. C.S.R.A., etc., Auth., 195 Ga.App. 94, 392 S.E.2d 305 (1990) (in which plaintiff alleged no defect or foreign substance, but merely that defendant was negligent in sending her down a stairway while she was carrying a heavy load); Gyles, Inc. v. Turner, 184 Ga.App. 376, 361 S.E.2d 538 (1987) (in which plaintiff was aware of the discernible object which caused the hazard); Harris v. Star Svc., etc., Co., 170 Ga.App. 816, 318 S.E.2d 239 (1984) (in which plaintiff knew he was traversing ice and snow accumulated on the premises of defendant gas station). A jury could conclude that the alleged hazard from a leaking diesel fuel pump on wet pavement was greater than the general hazard perceived by plaintiff. It could also conclude, then, that plaintiff's knowledge of the hazard was not equal to that the defendant had or, in the exercise of reasonable care, should have had. A finding that the plaintiff is precluded from recovering in a slip and fall case because of her own equal or superior knowledge of the hazard is, in essence, a finding that plaintiff's own negligence preponderated in causing the injury. Cf. Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). "The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is...