Foodmax, Inc. v. Terry, A93A1321
| Decision Date | 12 October 1993 |
| Docket Number | No. A93A1321,A93A1321 |
| Parties | FOODMAX, INC. v. TERRY. |
| Court | Georgia Court of Appeals |
Long, Weinberg, Ansley & Wheeler, Paul L. Weisbecker, J.M. Hudgins, IV, Stephen H. Sparwath, Atlanta, for appellant.
Word & Flinn, Gerald P. Word, Carrollton, for appellee.
Catherine Terry brought this action against Foodmax, Inc. for injuries she allegedly sustained when she slipped and fell on a foreign substance at a Foodmax supermarket. The trial court denied Foodmax's motion for summary judgment and we granted Foodmax's application for interlocutory appeal.
Reviewing the evidence in favor of Terry as the nonmovant on a motion for summary judgment, the record reveals that Terry was walking down an aisle of the Foodmax store searching the shelves for some peas when she slipped and fell on two small puddles of a dark substance resembling cola. Terry testified in her deposition that her husband was pushing a grocery cart and she was walking at least five feet behind him. She stated that, after falling, she saw a dark substance on the floor that had dried and was sticky. She stated that the floor of the store was a light color and that had she been looking at the floor she would have seen the substance; however, she "was looking for what she was getting."
By affidavit, Terry Slone, the store manager, and Mary Stell, a cashier, testified that Foodmax had a policy whereby all store employees were required to visually inspect the floors for any foreign substances and to remove and clean any such substances. Slone stated that he had conducted a visual inspection of the area where Terry fell approximately 20 minutes before the fall and that no foreign substances were present at that time. Stell stated that she had inspected the area where Terry fell approximately five minutes before the fall and saw no foreign substance. Stell further testified that at the time of the fall she and another employee were walking five to ten feet behind Terry and could not have seen the foreign substance on the floor because Terry was blocking their view. Both Slone and Stell conceded that after the fall they saw a small puddle of brown liquid near where Terry fell. Slone also stated that the substance appeared to be cola.
1. Foodmax argues that summary judgment should have been granted because no evidence exists that it had knowledge of the foreign substance on the floor. In order to establish a proprietor's liability for a slip and fall attributable to a foreign substance on the floor, the customer must show the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). The inquiry here must begin with whether Foodmax had constructive knowledge of the substance since there is no evidence it had actual knowledge of the presence of the foreign substance on the floor. Constructive knowledge may be established by showing that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance or that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery. Jester v. Ingles Market, 206 Ga.App. 327, 328, 425 S.E.2d 323 (1992). Foodmax negated the first theory by which constructive knowledge may be shown since it is undisputed that the only two employees near the affected area had their view of the area blocked by the plaintiff. See Queen v. Kroger Co., 191 Ga.App. 249, 250(1), 381 S.E.2d 413 (1989).
As to the second theory, a lack of actionable constructive knowledge may be established by presenting conclusive evidence that a customary inspection and cleaning program was in place and had been complied with on the day in question. Mallory v. Piggly Wiggly Southern, 200 Ga.App. 428, 430(1), 408 S.E.2d 443 (1991). Here, the direct and undisputed testimony of two Foodmax employees established that the floor in the immediate area of Terry's fall had been inspected and contained no foreign substance twenty minutes prior to the fall and five minutes prior to the fall. "Where it appears a foreign object had not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it." (Citation and punctuation omitted.) Mazur v. Food Giant, 183 Ga.App. 453, 454(1), 359 S.E.2d 178 (1987).
In Mazur, this court held that the fact that the frozen...
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