Ingles Mkts., Inc. v. Seymour

• Citation: 849 S.E.2d 715,356 Ga.App. 889
• Decision Date: 05 October 2020
• Docket Number: A20A1453
• Parties: INGLES MARKETS, INC. v. SEYMOUR.
• Court: United States Court of Appeals (Georgia)

356 Ga.App. 889

849 S.E.2d 715

INGLES MARKETS, INC.

v.SEYMOUR.

A20A1453

Court of Appeals of Georgia.

October 5, 2020

James William Scarbrough, Rachel E. Reed, Atlanta, Amy Marie Buzby, for Appellant.

Stephen Clay Carter, for Appellee.

Rickman, Judge.

Following a slip and fall at an Ingles Market, Virgil F. Seymour filed suit against Ingles Markets, Inc. for injuries he sustained. Ingles moved for summary judgment, which the trial court denied. On appeal Ingles contends that the trial court erred by denying its motion for summary judgment. For the following reasons, we affirm.¹

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) McCoy v. Winn Dixie Stores, Inc. , 238 Ga. App. 543, 543, 519 S.E.2d 689 (1999).

So viewed, the record shows that on the day in question, Seymour was at Ingles grocery shopping with his son. When standing in line waiting to check out, he decided to walk to a nearby garbage can to throw away his grocery list. After throwing away the list, he turned around and walked along the same path to get back in line. As he did so, he slipped and fell on a clear liquid on the floor.

Seymour's fall was captured by a store video camera. Seymour averred that from the store video, it appeared that the substance was clear chicken grease that had spilled from a rotisserie chicken container an Ingles employee had placed in a grocery cart approximately 27 minutes before his fall.

Seymour filed a premises liability action against Ingles. Ingles moved for summary judgment on the ground that Seymour was presumed to have knowledge of the substance on the floor because he had traversed the area a short time before he fell. The trial court denied Ingles's motion upon concluding that there was evidence from which a jury could determine that Seymour was unaware of the hazard and that the hazard was not easily discernable. The trial court granted a certification of immediate review and this Court granted Ingles’ application for interlocutory review.

In three enumerated errors Ingles contends that the trial court erred by denying its motion for summary judgment. Specifically, Ingles argues that the trial court erred by finding that the prior traversal presumption did not apply to this case and that the substance on the floor was not easily discernible.

In Georgia,

in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

(Punctuation omitted.) Robinson v. Kroger Co. , 268 Ga. 735, 749 (2), 493 S.E.2d 403 (1997). "In order to show that the plaintiff was negligent, a defendant must show that the plaintiff intentionally and unreasonably exposed [himself] to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known." (Citation and punctuation omitted.) McCoy , 238 Ga. App. at 544, 519 S.E.2d 689. "In slip-and-fall actions, summary judgment is appropriate only in plain, palpable, and undisputed cases." Id.

Under the prior traversal presumption,

when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. In cases where this rule has been applied, however, the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety.

(Citation and punctuation omitted.) McCoy , 238 Ga. App. at 544, 519 S.E.2d 689.² However, "[a] presumption relating to slip-and-fall plaintiffs who re-encounter static, readily discernible conditions has no application under the facts of this case." Id. ; see Martin v. Dunwoody-Shallowford Partners L. P. , 217 Ga. App. 559, 561 (2) (b), 458 S.E.2d 388 (1995) ("In cases where this [prior-traversal presumption] rule has been applied ... the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety, a factual circumstance not necessarily present in this case.")³

Seymour averred that the grease on which he slipped was clear and that, although he was looking where he was going, he "never discerned or saw the clear grease on the floor prior to [his] fall."⁴ An Ingles employee deposed that he cleaned up the spill after Seymour fell and agreed that it was very difficult to see the substance on the floor. When asked if the substance was readily visible or discernable, the Ingles employee replied, "No[.]"

"At its root, the issue in this case is whether, taking into account all the circumstances existing at the time and place of [Seymour's] fall, [Seymour] exercised the prudence the ordinarily careful person would use in a like situation." (Citation and punctuation omitted.) McCoy , 238 Ga. App. at 544, 519 S.E.2d 689. "Because the facts in this case are far from being plain, palpable, and undisputed, this issue is one a jury must resolve." Id. Accordingly, the trial court did not err in denying summary judgment. See Wiley v. Liberty Southern , 243 Ga. App. 110, 111, 532 S.E.2d 456 (2000) (holding that the trial court erred by granting summary judgment to a motel after the plaintiff fell on a wet spot on the floor because "[t]he evidence ... did not establish a static condition readily discernible by the plaintiff."); McCoy , 238 Ga. App. at 544, 519 S.E.2d 689 ("In this case, the evidence does not support a finding on summary judgment that the puddle was or should have been readily discernible to [plaintiff]...