McCrary v. Bruno's Inc., A95A1707

• Decision Date: 29 November 1995
• Docket Number: No. A95A1707,A95A1707
• Citation: 219 Ga.App. 206,464 S.E.2d 645
• Parties: McCRARY v. BRUNO'S, INC.
• Court: Georgia Court of Appeals

Page 645

464 S.E.2d 645

219 Ga.App. 206

McCRARY v. BRUNO'S, INC.

No. A95A1707.

Court of Appeals of Georgia.

Nov. 29, 1995.

Morris & Sharp, Donald J. Sharp, Austell, Gilbert & Montlick, Fred A. Gilbert, Atlanta, for appellant.

Jones, Cork & Miller, Timothy Harden, III, W. Kerry Howell, Macon, for appellee.

McMURRAY, Presiding Judge.

Plaintiff Mable McCrary brought this tort action against defendant Bruno's, Inc. d/b/a Piggly Wiggly No. 759, seeking to recover for injuries she sustained when she "came upon and fell on a dangerous condition" on the premises of defendant's grocery store. Piggly Wiggly Southern, Inc. ("Piggly Wiggly") and Bruno's, Inc. jointly answered and denied the material allegations of negligence. After a period of discovery, the alleged hazard was determined to be a push broom, the kind "you sweep the floor with in a big store," which apparently had been left standing against a shelf in one of the aisles of the grocery store. Defendants moved for summary judgment, contending that any hazard posed by the broom was open and obvious, that plaintiff failed to exercise ordinary care on her own behalf, and that plaintiff "had equal knowledge, or equal opportunity for knowledge, had she been in the exercise of ordinary care."

The evidence, viewed in the light most favorable to plaintiff as the non-movant, shows the following: Plaintiff had been in this Piggly Wiggly store "[h]undreds of times." She has "never been in a grocery store [where she has not] seen something on the floor." Plaintiff has "perfect vision except for reading." She needs eyeglasses "[j]ust to read." On this particular occasion, the lighting was good. Plaintiff had been shopping for about 30 minutes before she fell. She was pushing her shopping cart up one aisle when she realized she had passed an item she wanted from the opposite side of that same aisle. Plaintiff turned around to face the front of the store and moved to the opposite side of the aisle. She was pulling the shopping cart behind her when she "tripped over something and I had my buggy and I was trying to balance myself with my buggy but I fell and when I ... got up it was a mop a broom or whatever." Plaintiff "wasn't walking backwards...." She "already saw what [she] wanted [and ...] was just going back to it."

Plaintiff "didn't see [the broom] until after she fell [and did not] remember having seen it when she [first came] up the aisle." She believed it "may have been leaning up against the shelf at the time [she] ran into it." Once tripped, plaintiff found she "was tangled up in it there." From the floor, plaintiff saw the broom handle now "made a T with the shelf, ... [l]ike a 90 degree angle...." That is, the handle was "running horizontal or making it across the aisle, making a T ..." with the shelving. Plaintiff knew "it wasn't a new mop," and this aisle was not that area of the store where mops and brooms are displayed. "No one [else] was in the area." Plaintiff got up on her own and affirmed she had no trouble seeing the broom then, because it was "visible and apparent...." Plaintiff conceded that she "wasn't looking down at the floor ..." when she fell but was relying on her "whole [peripheral] vision [to see] everything in front[, ...] floor, shelves and all."

In opposition to defendants' motion for summary judgment, plaintiff submitted her affidavit, wherein she deposed as follows: "Immediately prior to my tripping over the push broom/mop ..., I had walked past the area of the aisle where I fell over the push broom/mop.... At the time I initially walked by that area, the push broom/mop was not there.... I had only taken a step or two past that area when I realized that I had passed by an item ... I needed.... I did not look down on the floor when I went back down the aisle because I had already, moments before, been by that area and there was nothing in the aisle at that time." Plaintiff could not identify "anything that would have blocked [her] view of it [i.e., the broom,] if [she] had looked down before she [fell]."

The trial court granted defendants' motion for summary judgment, and this appeal followed. Held:

Plaintiff contends the trial court erred in granting summary judgment because "material facts remained in dispute...." Specifically, she argues that the evidence, with all favorable inferences drawn in her favor, authorizes the jury to conclude that she had "immediately traversed the area where she tripped and fell immediately before the fall and the broom/mop that caused her trip was not present at that time[; ... and the] only way the [broom] could have reached that location would have been an employee of the Defendant placing that [broom] there." Relying on Stone v. Winn Dixie Stores, 212 Ga.App. 291, 442 S.E.2d 1, plaintiff urges these circumstances are sufficient to show that a jury question exists as to whether she exercised due care on her own behalf to discover and avoid the hazardous push broom.

Where a plaintiff alleges he tripped and fell over an object negligently placed in a store aisle by the proprietor, the defendant-proprietor "is presumed to have knowledge of its existence. See American National Bank v. Howard, 117 Ga. [App.] 834[, 836] (161 SE2d 838) (1968). In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of his injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. [Cit.]" Alterman Foods v. Ligon, 246 Ga. 620, 624, 272 S.E.2d 327. " ' "The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant's negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him." ' McGrew v. S.S. Kresge Co., 140 Ga.App. 149, 151[ (4) ] (230 SE2d 119) (1976); King Hardware Co. v. Teplis, 91 Ga.App. 13, 15 (84 SE2d 686) (1954). See also, Stowe v. Gallant-Belk Co., 107 Ga.App. 80 (129 SE2d 196) (1962)." Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327, supra.

"Although a merchant has the right to place certain articles in the aisles of his store, ' "nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone." (Cit.)' Big Apple Super Market v. Briggs, 102 Ga.App. 11, 14 (115 SE2d 385)." Stone v. Winn Dixie Stores, 212 Ga.App. 291, 292, 442 S.E.2d 1, supra. In the case sub judice, a push broom "leaning up against the shelf" in a grocery store is not so unusual an obstruction in the aisles that a customer would be relieved of the "duty to maintain a lookout ahead for its presence in his path. See King Hardware Co. v. Teplis, 91 Ga.App. 13, 15[, 84 S.E.2d 686, supra]; Kitchens v. Davis, 96 Ga.App. 30, 34 (99 SE2d 266) (1957)." Kres v. Winn-Dixie Stores, 183 Ga.App. 854, 855(1), 360 S.E.2d 415. This familiar article in a grocery store aisle presented a patent and static condition. Such an alleged defect, standing alone, is not dangerous or likely to cause injury until such time as one walks over it without looking. See Hadaway v. Cooner Enterprises, 172 Ga.App. 113, 114, 321 S.E.2d 830. Furthermore, plaintiff's attention in the case sub judice was not distracted away from the hazard by anything but was specifically directed toward the opposite shelf (where the broom was leaning) and whatever item she had missed, "only a step or two past ..." that area. Consequently, " 'her attention was directed to the very direction in which she was walking, and she was not relieved of the duty of avoiding a large, familiar, and conspicuous object in her path. (Cits.) It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way. (...