Food Giant, Inc. v. Cooke

• Decision Date: 16 February 1988
• Docket Number: No. 75472,75472
• Citation: 366 S.E.2d 781,186 Ga.App. 253
• Parties: FOOD GIANT, INC. v. COOKE.
• Court: Georgia Court of Appeals

Page 781

366 S.E.2d 781

186 Ga.App. 253

FOOD GIANT, INC. v. COOKE.

No. 75472.

Court of Appeals of Georgia.

Feb. 16, 1988.

Rehearing Denied March 8, 1988.

Certiorari Denied April 7, 1988.

Donald R. Andersen, Tucker, for appellant.

Murphy C. Miller, for appellee.

CARLEY, Judge.

Appellee-plaintiff fell when she stepped into motor oil which apparently had escaped from cans displayed on a shelf and then collected on the floor of an aisle in appellant-defendant's store. Appellee filed this action for damages and, after a period of discovery, appellant moved for summary judgment. The trial court denied appellant's motion, but certified its order for immediate review. This appeal results from this court's grant of appellant's application for an interlocutory appeal.

1. In support of its motion for summary judgment, appellant produced the affidavits of three of its employees who had been on duty at the time that appellee fell. Each affiant asserted a lack of personal knowledge as to the presence of the oil, the length of time that it may have been present on the floor, and the precise manner in which it had come to be there. In addition to this lack of actual personal knowledge, each affiant also denied receipt of notice, from any other source, of the presence of the oil on the floor prior to appellee's fall. The affidavit of appellant's manager contained this additional statement: "During the times I was in charge of a store for a shift, including while I was in charge of the store on the shift in which [appellee] allegedly fell, I customarily would patrol or instruct others to patrol the store three to four times per shift. Additionally, I instructed the employees in my charge to keep a lookout for any condition which could possibly cause a hazard to customers or other employees, and to correct any such condition if discovered." (Emphasis supplied.)

" '(I)n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant's floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance....' [Cit.]" (Emphasis supplied.) Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga.App. 891, 892, 318 S.E.2d 514 (1984). Thus, the burden would be upon appellant, as the movant for summary judgment, to show that no genuine issue remained as to its lack of actual and constructive knowledge of the oil on the floor of its premises. See Winn-Dixie of Greenville v. Ramey, 186 Ga.App. 257, 366 S.E.2d 785 (1988). The evidence of record would appear to be sufficient to show that appellant lacked actual knowledge of the oil prior to appellee's fall. Thus, the ultimate issue to be resolved is whether that evidence would also be sufficient to show that appellant had no constructive knowledge of the foreign substance. See generally Filmore v. Fulton-DeKalb Hosp. Auth., supra.

"Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. [Cit.] Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. [Cits.]" (Emphasis supplied.) Hughes v. Hosp. Auth. of Floyd County, 165 Ga.App. 530, 531 (1), 301 S.E.2d 695 (1983). Thus, the burden would be upon appellant, as the movant for summary judgment, to show that, as to its lack of constructive knowledge under either theory, no genuine issue remained. It would appear that appellee's own "testimony effectively negates the possibility of constructive knowledge based upon the presence of an employee in the immediate area of the dangerous condition. Thus, [appellee's] sole avenue of possible recovery is one in which constructive knowledge on the part of [appellant] is premised upon [appellant's] failure to exercise reasonable care in inspecting and keeping the premises in [a] safe condition. The [issue thus becomes whether the] affidavits executed by [appellant's] personnel effectively negate recovery of that theory. [Cits.]" Filmore v. Fulton-DeKalb Hosp. Auth., supra 170 Ga.App. at 893, 318 S.E.2d 514.

Nothing in appellant's evidence shows directly or circumstantially the approximate length of time that the oil may have been allowed to remain on the floor. Nowhere in their affidavits did appellant's employees specifically state at what time or even if, prior to the incident, the aisle in question had been inspected for foreign substances or had been ordered to be inspected. Construing the evidence most strongly against appellant, its manager's affidavit went merely to the general existence of a customary inspection procedure and would not be sufficient to negate the possibility that, on this specific occasion, there had been a deviation from that procedure. If appellant's manager cannot state that she was adhering to her customary inspection procedures on the specific day in question, the mere existence of such customary procedures would prove nothing. Compare Continental Grain Co. v. Farmers Gin, etc., Co., 167 Ga.App. 170, 173, 305 S.E.2d 783 (1983), holding that " '[a] witness may have no distinct and independent recollection of the details of a fact occurring in the course of the routine of his business, yet he may testify as to a fixed and uniform habit in such cases and 'state that he knows that what he did in a given transaction was in accordance with that habit....' [Cits.]" (Emphasis supplied.)

Moreover, even assuming that the affidavit of appellant's manager could be construed both as a statement of the general existence of customary inspection procedures and also as an affirmation of her adherence to those customary procedures on the specific day of appellee's fall, such evidence standing alone, would not authorize the grant of appellant's motion for summary judgment. The issue is not whether appellant had adhered to its customary inspection procedures. The issue is whether, under the existing circumstances, appellant's failure to have discovered the specific foreign substance prior to appellee's fall was the result of the breach of appellant's legal duty to inspect the premises. If so, an inference would arise from that breach of appellant's constructive knowledge of the presence of the oil...