K-Mart Corp. v. Spruell

• Decision Date: 14 March 1985
• Docket Number: No. 69842,K-MART,69842
• Citation: 328 S.E.2d 577,173 Ga.App. 884
• Parties: CORPORATION v. SPRUELL.
• Court: Georgia Court of Appeals

Page 577

328 S.E.2d 577

173 Ga.App. 884

K-MART CORPORATION v. SPRUELL.

No. 69842.

Court of Appeals of Georgia.

March 14, 1985.

Guerry R. Moore, Atlanta, for appellant.

Larry W. Thomason, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Slip and Fall. Ms. Mary Spruell went to a K-Mart store at about 9:30 or 10:00 a.m. on March 3, 1982, to buy some thread. Upon entering the store, she walked through the aisles to the appropriate counter, purchased the thread and exited by the same route, all without incident. She noted the floors were clean and shiny as if highly polished, the same as she had observed in all K-Mart stores. She observed nothing unusual or amiss. Upon arriving back at her point of origin, Ms. Spruell noticed she had purchased the wrong color thread. She returned to the same K-Mart store to make an exchange for the right color of thread. She entered the store and proceeded on the same route she had walked earlier. This was approximately an hour later, at about 11:00 or 11:30 a.m.

While walking through the store, Ms. Spruell slipped on a wet substance forming a spot on the floor approximately three inches in diameter (or the size of a grapefruit). She did not see the spot and did not have any idea of its possible origin. She thought it might have been a spot of unpolished wax but could not identify the substance by sight, touch or smell. Ms. Spruell stated she not only did not see the spot, she doubted she could have seen it if she had been looking at it. She had no idea how long the spot had been on the floor but assumed the spot had not been there very long. She did not see any K-Mart employees in the immediate area and did not have any idea whether K-Mart employees might have been aware of the existence of the spot. No one saw her slip nor observed the fall. Ms. Spruell alleged that K-Mart was negligent in allowing the spot to remain on the floor for any length of time but could not deny that the spot might have originated from a customer or other source, though she expressed a doubt that the spot might have come from a customer's shoes.

Opposed to this state of the evidence, K-Mart established through depositions and affidavits that the routine procedure in the particular store involved was to wax a portion of the floor each day, with the entire floor being waxed about once every week. The store used what was advertised as a "non-slip" wax. Daily, routine procedure required the assistant manager to meet with janitorial employees (who were responsible for waxing and cleaning every night) every morning prior to opening and tour the entire store area. Thereafter, each department under the control of the department supervisors, together with the assistant manager, were separately toured and inspected. During store hours, all store employees were instructed to maintain vigilance to observe any safety hazard. These routine procedures were followed daily including the date of Mrs. Spruell's fall.

Based upon this state of the evidence, K-Mart moved the trial court for summary judgment. Ms. Spruell resisted summary judgment arguing there were conflicts of fact such as whether she went with the store manager to the spot where she fell (she insisting she did not accompany the manager to the place whereas the manager stated she showed him the place but no spot on the floor could be found). The trial court concluded there were contested issues and denied K-Mart summary judgment. K-Mart sought an interlocutory appeal. The trial court issued a certificate of immediate review, and this court granted the appeal. It is this denial of summary judgment that forms the sole issue before this court. Held:

We conclude that as to the crucial issue of negligence there are no contested facts, and Ms. Spruell has failed to meet the standard required to withstand a motion for summary judgment.

The uncontested evidence before the trial court showed that Ms. Spruell had at least equal knowledge of the floor conditions. It certainly did not show a situation where K-Mart knew of the situation (or failed to take measures to acquaint itself with such a situation) and a situation that Ms. Spruell was in an inferior situation to observe. McIntyre v. Corporate Property Investors, 160 Ga.App. 868, 869, 288 S.E.2d 584.

"In cases involving foreign substances the customer does not ordinarily know if the substance which caused him to fall has been placed on the floor through negligence attributable to the owner or through that of someone other than the owner. While the owner or occupier of land is liable to invitees for his failure to exercise ordinary care in keeping the premises safe ... '[b]efore an owner can be held liable for the slippery conditions of his floors, produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care.' Conaway v. McCrory Stores, 82 Ga.App. 97, 101 (60 S.E.2d 631) (1950). Accord Boatright v. Rich's, Inc., 121 Ga.App. 121 (173 S.E.2d 232) (1970). Thus it is said that only 'when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.' Sears, Roebuck & Co. v. Reid, 132 Ga.App. 136, 138 (207 S.E.2d 532) (1974). Normally a proprietor is permitted a reasonable time to exercise care in inspecting the premises and maintaining them in a safe condition. Winn-Dixie Stores v. Hardy, 138 Ga.App. 342 (226 S.E.2d 142) (1976); Burger Barn, Inc. v. Young, 131 Ga.App. 828(4) (207 S.E.2d 234) (1974). However, the proprietor is under no duty to continuously patrol the premises in absence of facts showing that the premises are usually dangerous.... Angel v. Varsity, Inc., 113 Ga.App. 507 (148 S.E.2d 451) (1966). Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip...