Harper v. Kroger Co.

• Decision Date: 25 March 1994
• Docket Number: No. A94A0485,A94A0485
• Parties: HARPER v. KROGER COMPANY.
• Court: Georgia Court of Appeals

Page 7

443 S.E.2d 7

212 Ga.App. 570

HARPER v. KROGER COMPANY.

No. A94A0485.

Court of Appeals of Georgia.

March 25, 1994.

John H. Ridley, Jr., Atlanta, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Todd M. Yates, Douglas A. Wilde, Gregory H. Wheeler, for appellee.

BIRDSONG, Presiding Judge.

Howard Harper appeals the grant of summary judgment to the Kroger Company in his claims arising from his slip and fall in a Kroger Store. He contends the trial court erred by failing to apply the law of distraction and by granting summary judgment because the trial court failed to consider that an employee of Kroger had just previously mopped the aisle on which Harper fell and failed to post any warning signs.

Kroger contends, however, that summary judgment was warranted because Harper testified at his deposition that he slipped in a puddle of water approximately two feet in circumference in the middle of the aisle while he was walking out of the store not looking at the floor. Harper further testified by deposition that the lighting was adequate and that he had no problem seeing prior to the fall. Moreover, he testified that, if he had been looking at the floor he would have been able to see the water, and he was not distracted by anything. Held:

Although there appears no question that Kroger had at least constructive knowledge of the puddle, that does not end the issue. Harper "must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the owner's negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him." (Citations and punctuation omitted.) Anderson v. Dunwoody North Driving Club, 176 Ga.App. 210, 211, 335 S.E.2d 451.

Further, even though by affidavit Harper claims that he was distracted from seeing the puddle, the distraction doctrine is not without limits. Ramirez v. Kroger Co., 207 Ga.App. 830, 429 S.E.2d 311. "One valid line of distinction existing in the so-called 'distraction' cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence." Redding v. Sinclair Refining Co., 105 Ga.App. 375, 378-379, 124 S.E.2d 688.

In this appeal, Harper testified in deposition that he was not distracted by anything. Although his affidavit submitted in rebuttal to Kroger's motion for summary judgment subsequently...