Johnson v. All Am. Quality Foods, Inc.

• Decision Date: 10 March 2017
• Docket Number: A16A1724
• Citation: Johnson v. All Am. Quality Foods, Inc., 340 Ga.App. 664, 798 S.E.2d 274 (Ga. App. 2017)
• Parties: JOHNSON v. ALL AMERICAN QUALITY FOODS, INC.
• Court: Georgia Court of Appeals

340 Ga.App. 664

798 S.E.2d 274

JOHNSON

v.ALL AMERICAN QUALITY FOODS, INC.

A16A1724

Court of Appeals of Georgia.

March 10, 2017

Leland Hiatt Kynes, James Robert Haug, Colin Andrew Barron, Norcross, for Appellant.

Rod G. Meadows, Stephen Patrick Morris, Stockbridge, for Appellee.

Doyle, Chief Judge.

This case arises from the trial court's order granting summary judgment to a Food Depot grocery store in a slip-and-fall case filed by a shopper, Balinda Johnson, against Food Depot's parent company, All American Quality Foods, Inc.("All American").Johnson appeals, arguing that the trial court erred by granting summary judgment to All American.For the reasons that follow, we reverse.

"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.We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant."¹

So viewed, the record shows that Johnson was shopping in the Food Depot when she slipped in a puddle of liquid from packaged meat.A surveillance camera recorded a view of the area where Johnson fell, and it showed that seven minutes and thirty seconds prior to the fall, Johnson, her friend Lorene Evans, and their children traversed the area of Johnson's fall.Additionally, immediately prior to her fall, Johnson walked past the area, browsed either sides of the aisle for less than one minute, and then walked back the way she had just come, at which point she slipped and fell on her side.

According to the inspection log sheet, an employee named Angelo completed an inspection of the aisle where Johnson fell at 12:01 p.m., approximately 38 minutes prior to the incident.After Johnson's fall, the manager on duty, Chris Kempton, completed an incident report and discovered a trail of "spots of blood and meat products" in the aisle.

All American moved for summary judgment, contending that it had no actual knowledge of the hazard, it had no constructive knowledge of the hazard and had a reasonable inspection procedure, and Johnson had superior knowledge based on traversing the area at least four times prior to the fall.Johnson responded, arguing that there remained genuine issues of material fact as to when the hazard was created and whether the inspection procedure was reasonable.

After a hearing, the trial court issued an order granting All American's motion for summary judgment, finding that there was no dispute of material fact as to All American's lack of constructive knowledge of the spill.Moreover, the trial court found that the inspection was reasonable as a matter of law.

In her sole enumeration of error, Johnson contends that the trial court erred by concluding as a matter of law that All American had established and carried out a reasonable inspection on the day of the accident.Thus, Johnson contends that a fact-finder could infer that All American had constructive notice of the hazard, and therefore, the trial court erred by granting its summary judgment motion.We agree.

As an initial matter, we note that Johnson traversed the area of her fall twice before slipping in the substance during her third crossing.This, however, does not support a finding on summary judgment that Johnson knew or should have known about the spill as a matter of law.²That said,

[All American] is liable for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe.Thus, [All American] was required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge.In a premises liability action, the plaintiff must plead and prove that: (1)the defendant had actual or constructive knowledge of the hazard; and (2)the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant's actions or to conditions under the defendant's control.Thus, to carry its initial burden and to survive a motion for summary judgment, a plaintiff must provide evidence that, when construed in his or her favor, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard.³

We agree with the trial court, and Johnson does not contend, that All American did not have actual knowledge of the hazard.Thus,

[t]o establish constructive knowledge, [Johnson] must show that (1) a store employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by the store employees should have discovered it.Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.In addition, to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has demonstrated its inspection procedures.⁴

Here, there is evidence that All American had an inspection procedure that called for inspections every hour, which allegedly occurred approximately 38 minutes prior to Johnson's fall.And although a time-stamped list of inspections supposedly performed that day was appended to Kempton's affidavit, the record shows that Kempton himself did not perform the inspections and thus could not swear that they were performed as noted on the printout.⁵But pretermitting whether the printout and Kempton's affidavit were sufficient to support the grant of summary judgment, this Court has found that questions of fact exist based on reasonableness of an inspection procedures even if the inspection occurred as little as 15 minutes to 20 minutes prior to a fall.⁶"The nature of a supermarket's ... business creates conditions which cause slip and falls to occur with some frequency.Under those circumstances, we have held that premises owners have a duty to inspect with greater frequency."⁷Thus, in this case, the trial court erred by finding as a matter of law that All American's hourly inspection procedure shielded it from liability, and a jury question exists as to whether All American's procedure was reasonable.⁸Accordingly, we reverse the trial court's grant of summary judgment to All American.

Judgment reversed.

Barnes, P.J., McFadden, P.J., Ray, and Rickman, JJ., concur.Miller, P.J., concurs fully and specially.Andrews, McMillian, and Self., JJ., dissent.

Miller, Presiding Judge, concurring fully and specially.

I agree with the majority that the facts in this case create a jury question as to whether All American Quality Foods's inspection procedures were unreasonable such that the supermarket had constructive knowledge of the alleged hazard that caused Ms. Johnson to fall.I write separately to emphasize that the fact-intensive nature of slip-and-fall cases will typically preclude summary judgment and require a jury to consider the merits.This does not mean, however, that this author is indicating that a plaintiff who merely avoids summary judgment is entitled to recover before the jury.

To survive summary judgment in a slip-and-fall case, the plaintiff must show that the supermarket had actual or constructive knowledge of the hazard, and constructive knowledge can be inferred from a lack of reasonable inspection procedures.Ingles Markets, Inc. v. Martin , 236 Ga.App. 810, 811, 513 S.E.2d 536(1999).Whether an inspection procedure is "reasonable" depends on the facts and circumstances of the case.Food Lion v. Walker , 290 Ga.App. 574, 576 (1), 660 S.E.2d 426(2008).This Court has said that more frequent inspections may be necessary in a supermarket setting, but we have never established a bright-line rule for what is a reasonable interval.Cf.id.(holding that the nature of the supermarket business requires more frequent inspections, but expressing no opinion on what the frequency should be).Given the fact-intensive nature of these claims, we should not create a bright-line rule.

[S]ummary adjudication as to constructive knowledge arising from the duty to inspect is not authorized absent plain, palpable and undisputable proof that customary inspection procedures or cleaning practices were in place, were actually followed and were adequate to guard against known or foreseeable dangers at the time of the patron's alleged injuries.

(Citations and punctuation omitted.)Burnett v. Ingles Markets , 236 Ga.App. 865, 867, 514 S.E.2d 65(1999)."The evidence in the case sub judice does not satisfy these criteria."Id.

Certainly there are slip-and-fall cases that are appropriate for summary judgment.See, e.g., Deloach v. Food Lion, Inc. , 228 Ga.App. 393, 491 S.E.2d 845(1997)(summary judgment is proper where the plaintiff has failed to come forward with evidence to create an issue of fact that the supermarket had constructive knowledge of the hazard).See alsoRobinson v. Kroger Co. , 268 Ga. 735, 737 (1), 493 S.E.2d 403(1997)(recognizing that summary judgment may be appropriate where the plaintiff could not establish the defendant's actual or constructive knowledge of the hazard).Supermarket slip-and-fall cases turn on the facts, and any determination of reasonableness of a supermarket's inspection procedures must depend on the particular facts of the case.The particular facts of this case do not warrant adjudication at the summary judgment stage of the litigation.

ANDREWS, Judge, dissenting.

I dissent because I believe the trial court correctly found as a matter of law that the appellee carried out a reasonable inspection procedure and had neither actual nor constructive knowledge of the hazard.

1.To demonstrate its lack of constructive knowledge of the hazard in this case, the appellee...