Mallory v. Piggly Wiggly Southern, Inc.

• Decision Date: 24 June 1991
• Docket Number: No. A91A0301,A91A0301
• Parties: MALLORY v. PIGGLY WIGGLY SOUTHERN, INC.
• Court: Georgia Court of Appeals

Page 443

408 S.E.2d 443

200 Ga.App. 428

MALLORY v. PIGGLY WIGGLY SOUTHERN, INC.

No. A91A0301.

Court of Appeals of Georgia.

June 24, 1991.

Reconsideration Denied July 12, 1991.

Certiorari Denied Sept. 6, 1991.

Reynolds & McArthur, Charles M. Cork, III, Macon, for appellant.

Martin, Snow, Grant & Napier, William H. Larsen and Jay C. Traynham, Macon, for appellee.

POPE, Judge.

Plaintiff appeals the trial court's grant of summary judgment to defendant in this slip and fall case.

1. "[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 he slipped and fell on a foreign substance on the defendant's floor, 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...." Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). "Thus, in order for a defendant to successfully move for summary judgment in a foreign substance slip and fall case, it must come forward with evidence tending to show that (1) it had neither actual nor constructive knowledge of the foreign substance or that (2) plaintiff had knowledge of the substance." Baggs v. Chatham County Hosp. Auth., 187 Ga.App. 834, 836(2), 371 S.E.2d 653 (1988).

In this case plaintiff alleges she slipped on an onion peel on the floor near the produce department of defendant's store. The evidence in the record shows neither plaintiff nor defendant had actual knowledge of the onion peel prior to plaintiff's fall. Thus, the ultimate issue to be resolved is whether the evidence in the record is sufficient to show that defendant had no constructive knowledge of the foreign substance. See generally Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga.App. 891, 318 S.E.2d 514 (1984).

"There are two different classes of [premises liability] cases which may be based on constructive knowledge. The first is that type where liability of the defendant is based on the fact that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard. [Cits.] ... The second type of case is that based on the duty of the defendant to exercise reasonable care in inspecting and keeping the premises in safe condition. [Cits.] To sustain plaintiff's cause of action in the latter case it is necessary that he prove 'a period of time the dangerous condition has been allowed to exist. Without such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.' [Cit.]" Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 345, 226 S.E.2d 142 (1976). See also Queen v. Kroger Co., 191 Ga.App. 249, 381 S.E.2d 413 (1989). Here, the defendant, as the movant for summary judgment, has the burden "to show that, as to its lack of constructive knowledge under either theory, no genuine issue remained." (Italics omitted.) Food Giant v. Cooke, 186 Ga.App. 253, 254, 366 S.E.2d 781 (1988).

"Defendant in this case successfully pierced plaintiff's complaint as to each of these two theories by which constructive knowledge may be shown. Although [defendant's employee was] nearby, the undisputed evidence showed [he was] not facing the area where the [onion peel] had [been on] the floor. No evidence was presented by which it could be determined that the condition had existed for a sufficient period of time to afford defendant a reasonable opportunity to discover and remove the hazard.... [No evidence was presented to show that defendant's employee, even though located nearby, actually had a view of the affected area.] Under the circumstances, the mere proximity of the [employee] to the spot where plaintiff fell presents no issue of constructive knowledge." Queen v. Kroger Co., supra 191 Ga.App. at 250, 381 S.E.2d 413. "[Plaintiff's] sole avenue of possible recovery[, therefore,] is one in which constructive knowledge on the part of [defendant] is premised upon [defendant's] failure to exercise reasonable care in inspecting and keeping the premises in safe condition. The affidavits [and depositions] executed by [defendant's employees] effectively negate recovery on that theory." Filmore v. Fulton-DeKalb Hosp. Auth., supra 170 Ga.App. at 893, 318 S.E.2d 514.

" 'A lack of actionable constructive knowledge is normally established in [exercising reasonable care in inspecting and keeping the premises in safe condition] cases by evidence of compliance with reasonable inspection and/or cleaning procedures. (Cits.) ...' [Cit.]" Baggs v. Chatham County Hosp. Auth., supra 187 Ga.App. at 836(3), 371 S.E.2d 653. Evidence establishing an adherence to customary inspection and cleaning procedures on the specific day in question is required, while proof of the mere existence of such customary procedures is insufficient. Food Giant v. Cooke, supra 186 Ga.App. at 255, 366 S.E.2d 781.

Defendant provided evidence of its inspection and cleaning procedures and evidence that there had been adherence to those procedures the day plaintiff fell. Defendant's store manager, Randall Daniels, testified he personally patrolled each aisle of the store every one-and-a-half hours on the day in question. He further testified the floors in and around the produce department were thoroughly swept approximately three or four times during business hours each day and that this procedure was followed the day plaintiff fell. Moreover, the assistant produce manager, Shane Jones, testified he swept in and around the produce area at least every 30 minutes while on duty at defendant's store and that this procedure was followed the day plaintiff fell. Jones further testified he personally swept the area where plaintiff fell approximately five minutes before the fall and that the floor was free of debris at that time. This evidence of cleaning and inspection procedures, which were followed by defendant's employees the day plaintiff fell, is sufficient to pierce plaintiff's theory that defendant had constructive knowledge of the onion peel because it failed to exercise reasonable care in inspecting and cleaning the premises. "It is well established that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous. [Cits.] Where it appears a foreign object had 'not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.' Jones v. West End Theatre Co., 94 Ga.App. 299, 303 (94 SE2d 135) (1956)." Mazur v. Food Giant, 183 Ga.App. 453, 454(1), 359 S.E.2d 178 (1987). Plaintiff's allegation that she saw other debris on the floor immediately after she fell is not inconsistent with the testimony that the onion peel was not present on the floor five minutes earlier. It is foreseeable that debris from produce would fall to the floor of the produce department when customers handled the produce during ordinary shopping, and that this could occur within...