Johnson v. Autozone, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: ANDREWS; BEASLEY; RUFFIN; RUFFIN; McMURRAY
• Citation: Johnson v. Autozone, Inc., 465 S.E.2d 463, 219 Ga.App. 390 (Ga. App. 1995)
• Decision Date: 09 November 1995
• Docket Number: No. A95A1712,A95A1712
• Parties: JOHNSON v. AUTOZONE, INC.

Page 463

465 S.E.2d 463

219 Ga.App. 390

JOHNSON v. AUTOZONE, INC.

No. A95A1712.

Court of Appeals of Georgia.

Nov. 9, 1995.

Reconsideration Denied Dec. 6, 1995.

Certiorari Denied March 8, 1996.

Jack F. Witcher, Breman, for appellant.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Atlanta, for appellee.

ANDREWS, Judge.

Johnson was injured when she slipped and fell in a puddle of oil in the parking lot of an Autozone, Inc. store. She sued Autozone to recover damages resulting from her injuries claiming Autozone negligently failed to keep the store premises in a safe condition for invitees. She brings this appeal from the trial court's order granting summary judgment in favor of Autozone.

Johnson drove to the Autozone store with a friend and parked her car in the store's parking lot. It was between 7:00 and 8:00 p.m. and dark outside when she arrived at the store. Johnson got out of her car, took three or four steps across the parking lot toward the entrance of the store, and slipped and fell in a large puddle of oil. The oil was puddled in a vacant handicapped parking space adjacent to where Johnson had parked her car. She testified on deposition that, although there was lighting in the parking lot, there was not enough light to enable her to see the large dark puddle of oil before she stepped into it and fell. The friend who accompanied Johnson to the store deposed that when she got out of the car after Johnson fell, "I looked down on the ground to see what she had, you know, slipped on and why she had fell in something and I seen a big old black spot of motor oil...."

Two Autozone employees were working at the store on the night of the fall. Both gave affidavits stating Johnson's friend reported the fall when it happened, that they went out to the parking lot and spoke to Johnson immediately after the fall, that the parking lot was well lighted, and that they could clearly see the large puddle of motor oil spilled out in a handicapped parking space. One of the employees stated there was about three to five quarts of motor oil in the parking space "as if someone had completely drained the oil out [of] a car." The employee further stated: "At the time that I observed the oil in the parking lot, it was still running down the slope of the parking lot. However, the puddle of oil had not yet reached beyond the limits of the handicap parking space where it had been deposited." Based on his observations of the oil, the employee stated it was his opinion the oil had been deposited in the parking space less than five minutes prior to the time he observed it. The same employee also stated that about 15 to 20 minutes prior to Johnson's fall he had gone out to the parking lot to measure some windshield wipers on a customer's car. He stated that, although he could have seen the oil spill from where he was working, he did not see any oil on the ground at that time. Both Autozone employees stated they had no knowledge of the spilled oil until they observed it after Johnson fell.

Johnson's friend further deposed that, while she and Johnson were sitting in the parked car prior to the fall, she saw a man walk by the front of the car who slowed down and appeared to look in the direction of the oil spill. She stated that if he looked in that direction he would have seen the oil spill. Contrary to the dissent's claim, the testimony of Johnson's friend (Cox) did not provide evidence that the man she saw was an Autozone employee. Cox was unable to identify the man, and she never testified that the man she observed was an Autozone employee. The record is undisputed that only two Autozone employees were employed at the store at the time of the accident. Cox further testified that immediately after Johnson fell she saw two Autozone employees in the store and at least one customer and that none of these people appeared to be the man she saw walking past the oil spill. Although Johnson's friend deposed that she did not know how long the oil had been there, she said she saw tire tracks through the puddle and footprints in it but not leading away from it.

"[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [s]he slipped and fell on a foreign substance on the defendant's [premises], 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." Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). Although Johnson's friend and both Autozone employees stated the puddle of oil was visible, Johnson testified there was not enough light in the parking lot for her to see the puddle. Assuming a factual issue was presented as to whether in the exercise of ordinary care Johnson should have seen the puddle of oil before stepping in it, the trial court correctly granted summary judgment in favor of Autozone because there was no evidence Autozone had actual or constructive knowledge of the puddle of oil in the parking lot prior to Johnson's fall.

There is no evidence any Autozone employee had actual knowledge of the spilled oil prior to Johnson's fall. Constructive knowledge may be established in two ways. First, "[c]onstructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard." (Citations and punctuation omitted.) Winn-Dixie of Greenville v. Ramey, 186 Ga.App. 257, 259, 366 S.E.2d 785 (1988). There is no evidence an employee of Autozone was in the immediate vicinity of the spilled oil and could have seen and removed the hazard prior to Johnson's fall. Accordingly, any recovery in this case must be based on the second method of establishing constructive knowledge which is premised on a claim that the puddle of oil was on the premises for a long enough period of time that Autozone should have discovered it. Smith v. Wal-Mart Stores, 199 Ga.App. 808, 809, 406 S.E.2d 234 (1991).

A proprietor has a duty to exercise ordinary care to keep the premises safe for invitees, which includes "a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises." (Citations and punctuation omitted.) Strickland v. Howard, 214 Ga.App. 307, 308, 447 S.E.2d 637 (1994). However, "[i]t is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous." Mazur v. Food Giant, 183 Ga.App. 453, 359 S.E.2d 178 (1987). Under the second method of proving constructive knowledge, if the evidence shows that a foreign substance has remained on the floor of the premises for a sufficient period of time that it should have been discovered and removed in a reasonable inspection of the premises, then an inference arises from the breach of the duty to inspect the premises and keep it safe that the proprietor has constructive knowledge of the presence of the foreign substance. Food Giant v. Cooke, 186 Ga.App. 253, 255, 366 S.E.2d 781 (1988). Of course, since the true basis of the proprietor's liability to an invitee is the proprietor's superior knowledge of the hazard or defect which was the proximate cause of the injury, an injured invitee may recover on the basis of the proprietor's constructive knowledge of the hazard only if the invitee's knowledge of the hazard did not equal or exceed the proprietor's knowledge. Kroger Co. v. Bailey, 212 Ga.App. 568, 569, 442 S.E.2d 480 (1994).

In seeking summary judgment, Autozone had the burden of showing there was no genuine issue of fact with respect to its lack of constructive knowledge of the puddle of oil. It could do this by either producing evidence demonstrating a lack of constructive knowledge or by pointing out the absence of evidence in the record to support the nonmovant's claim that it had constructive knowledge. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); Jackson v. Wal-Mart Stores, 206 Ga.App. 165, 168, 424 S.E.2d 845 (1992).

Autozone both pointed out the absence of any evidence that it had constructive knowledge based on a claim that an employee was in the vicinity of the oil spill and produced affidavits showing that no employee was in the vicinity in a position to have seen it prior to Johnson's fall. Autozone also produced evidence that it did not have constructive knowledge on the basis that the oil spill had been on the premises for a sufficient length of time that it should have been discovered by a reasonable inspection of the premises.

Autozone produced uncontradicted evidence that the oil spill consisted of three to five quarts of motor oil deposited in a parking space in a sloping area of the parking lot and that, when the spill was observed immediately after Johnson's fall, the oil was still running down the slope of the parking lot but had not yet run outside the limits of the marked parking space. We do not rely on the employee's opinion that the oil had been running down the slope for less than five minutes before he observed it. See Ginn v. Morgan, 225 Ga. 192, 193, 167 S.E.2d 393 (1969) (opinion evidence alone will not support an award of summary judgment). Autozone also produced the affidavit of an employee who stated that 15 to 20 minutes prior to Johnson's fall he was working in the parking lot, could have seen the oil from where he was working, but did not see any oil on the ground at that time. Although this affidavit was not evidence of periodic inspection procedures, it was additional evidence showing that the spill had existed in the parking lot for no more than a short period...