JH Harvey Co. v. Reddick

• Decision Date: 27 September 1999
• Docket Number: No. A99A1573.,A99A1573.
• Citation: 522 S.E.2d 749,240 Ga. App. 466
• Parties: J.H. HARVEY COMPANY v. REDDICK.
• Court: Georgia Court of Appeals

522 S.E.2d 749

240 Ga. App. 466

J.H. HARVEY COMPANY v. REDDICK.

No. A99A1573.

Court of Appeals of Georgia.

September 27, 1999.

Reconsideration Dismissed October 21, 1999.

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Valdosta, Carl G. Fulp III, for appellant.

Law Offices of Rodney M. Keys, Albany, Maurice L. King, Jr., Leary, for appellee.

RUFFIN, Judge.

J.H. Harvey Company ("Harvey") appeals from the trial court's denial of its motion for summary judgment in this slip-and-fall premises liability case. Harvey also appeals the trial court's denial of its motion to strike and objections to plaintiff Carolyn Reddick's deposition errata sheet. For reasons that follow, we affirm.

[ 522 S.E.2d 751]

1. The standard of review applicable to motions for summary judgment is well established:

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Moreover, with respect to slip-and-fall cases, we are reminded by the Supreme Court that

the "routine" issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.

Robinson v. Kroger Co., 268 Ga. 735, 748, 493 S.E.2d 403 (1997).

Viewed in the light most favorable to Reddick, the evidence shows as follows. At approximately 5:55 p.m. on September 5, 1996, Reddick slipped and fell while shopping in a Harvey grocery store in Americus. Reddick was walking down an aisle displaying bread on one side and frozen foods on the other when her right foot slipped on "something slippery," causing her to fall forward onto her knees. As she was getting up, Reddick saw two scuppernongs¹ on the floor to her left. Reddick does not know whether she actually stepped on the scuppernongs, does not recall whether they were whole or squashed flat, and does not know if they caused her to fall. Reddick does not recall seeing anything else on the floor that might have caused her to fall, and she does not remember seeing any substance on the knees of her slacks after she got up. Reddick assumed, however, that the scuppernongs caused her to fall because she noticed them on the floor near her after she fell.

After Reddick got up, she reported the incident to the store's assistant manager, Bruce Jones. Reddick and Jones returned to the aisle where Reddick had fallen, and Jones saw two scuppernong skins on the floor. According to Jones, scuppernongs are generally located in the produce department, several aisles away, and one would not expect to find them in the aisle where Reddick fell. After examining the area, Jones completed an accident report in which he stated that "[a]n unknown customer was apparently eating scuppernongs and threw the outer skin on the floor. (2 scuppernongs). [Reddick] walked around the corner next to the bread and said she slipped and fell on her knees." During his deposition, Jones explained that in the past, customers at the store had eaten scuppernongs and thrown them on the floor. A former Harvey employee, Reginald Adams, testified by affidavit that the Americus store "had problems with items on the floor. These problems included customers eating items in the store and then throwing the items on the floor."

Harvey filed a motion for summary judgment, and the trial court denied it. We then granted Harvey's application for interlocutory appeal.

To prove negligence in a foreign substance slip-and-fall case, the plaintiff must show "(1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance." (Punctuation omitted.) Robinson, supra at 736, 493 S.E.2d 403. Harvey maintains that it is entitled to summary judgment on several grounds, each of which we reject.

(a) First, Harvey argues that Reddick failed to present any evidence that her fall was caused by the scuppernongs on the floor of the store. To survive summary judgment, a slip-and-fall plaintiff "must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result." (Punctuation omitted.) Christopher v. Donna's Country Store, 236 Ga.App. 219, 220(1), 511 S.E.2d 579 (1999). Reddick admitted during her deposition that she did not know what caused her to fall, but stated that she assumed the scuppernongs were responsible. Citing Hall v. Cracker Barrel &c., 223 Ga.App. 88, 476 S.E.2d 789 (1996), Harvey contends that Reddick's testimony demonstrates the absence of causation in this case. We disagree.

In Hall, the plaintiff slipped and fell on wood flooring which she described as "slippery." Id. at 88, 476 S.E.2d 789. Although she alleged that the floor was excessively waxy, the plaintiff failed to present any evidence of a foreign substance on the floor which could have created a slippery condition. Likewise, the plaintiff failed to show that the defendant improperly cleaned or maintained the floors. We concluded that the plaintiff's bare assertion that the floor was "slippery," without more, was insufficient to create an issue of fact as to whether the fall was caused by the defendant's negligence. Id. at 93, 476 S.E.2d 789. We noted that "proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor's negligence." (Punctuation omitted.) Id. at 90, 476 S.E.2d 789.

In this case, by contrast, Reddick has presented evidence of a foreign substance—two scuppernongs on the floor in the area where she fell—that could have created the slippery condition she alleged. We are required on a motion for summary judgment to view the facts and inferences in a light most favorable to Reddick. See Lau's Corp., supra. Although Reddick could not positively state that the scuppernongs caused her to fall, reasonable jurors could make such an inference based on the proximity of the fruit to Reddick after the fall, the alleged "slippery" condition of the floor, and the assistant manager's statement after Reddick's fall that he saw scuppernong skins, rather than whole fruit. See Williams v. EMRO Marketing Co., 229 Ga.App. 468, 472(2), 494 S.E.2d 218 (1997) (Ruffin, J., concurring specially) (evidence permitted reasonable inference that plaintiff slipped and fell on ice even though plaintiff did not see what he slipped on).

(b) Second, Harvey contends that Reddick failed to prove that it had actual or constructive knowledge of the presence of the scuppernongs on the floor. Reddick argues that Harvey had both actual and constructive knowledge of the hazard. We find no evidence of actual knowledge, but agree with Reddick that there are factual disputes concerning Harvey's constructive knowledge.

Reddick's actual knowledge argument is based on (1) Jones' deposition testimony that customers previously had eaten scuppernongs and thrown them on the floor and (2) the affidavit of former Harvey's employee Reginald Adams that the store had a problem with customers throwing food on the floor. To establish actual knowledge, however, Reddick must do more than merely show that Harvey's employees had a general knowledge that a hazardous condition might exist. See J.H. Harvey Co. v. Johnson, 211 Ga.App. 809, 810, 440 S.E.2d 548 (1994) ("although management had knowledge of the periodic defrosting of the meat cooler, the record does not show that any employee or manager of the supermarket had actual knowledge of the alleged water leakage onto the floor prior to Johnson's fall"), overruled in part on other grounds, Robinson, supra. Here, Jones testified merely that customers had thrown scuppernongs on the floor in the past. There is no evidence concerning the date or frequency of such incidents and no evidence that Jones had actual knowledge of any customers throwing food on the floor on the day that Reddick fell. Adams averred only that the store had "problems with items on the floor ... includ[ing] customers eating items in the store and then throwing the items on the floor." Adams did not state that he was aware of scuppernongs on the floor on the day of Reddick's fall, or even that he was working in the store that day. This evidence is not sufficient to establish Harvey's actual knowledge of the hazard.

Reddick also maintains that Harvey had constructive knowledge of the hazard. Constructive knowledge can be proven by showing either (1) "that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance" or (2) "that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery."

(Punctuation omitted.) Brown v. Piggly Wiggly Southern, 228 Ga.App. 629, 631(3)(b), 493 S.E.2d 196 (1997). As Reddick testified that she did not see any Harvey employees around when she fell, and there was no other evidence of store employees in her immediate vicinity, she must use the second method of proving constructive knowledge. To withstand a motion for summary judgment using that method, "a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident." Straughter v. J.H. Harvey Co., 232 Ga.App. 29, 30(1), 500 S.E.2d 353 (1998) (whole court). Thus, we must determine whether Harvey has established that it had in place a reasonable inspection procedure...