McGrew v. S. S. Kresge Co.

• Decision Date: 30 September 1976
• Docket Number: No. 52709,No. 1,52709,1
• Parties: Ivey McGREW v. S. S. KRESGE COMPANY
• Court: Georgia Court of Appeals

Page 119

230 S.E.2d 119

140 Ga.App. 149

Ivey McGREW v. S. S. KRESGE COMPANY.

No. 52709.

Court of Appeals of Georgia, Division No. 1.

Sept. 30, 1976.

Rehearing Denied Oct. 25, 1976.

W. B. Mitchell, Forsyth, Thomas E. Dunn, Macon, for appellant.

Harris, Watkins, Taylor & Davis, David B. Higdon, Macon, for appellee.

CLARK, Judge.

This is an appeal by a plaintiff customer from grant of summary judgment to defendant retailer in a slip-and-fall case.

Plaintiff's version as contained in her answers to interrogatories is that her fall was caused by the presence on the floor of 'a plastic coat hanger of the type stores mostly use.' We quote her words: 'I started down one aisle of the store only to find about half-way down that aisle was blocked by boxes being unpacked by two clerks who were talking at the time. They made no move to clear the aisle so I retraced my steps to go down the next aisle parallel to that one. I was aggravated at the inconvenience and walking quite briskly as I turned the corner at the end of that aisle. As I rounded the end of the counter I stepped on something which threw me down . . .' Other pertinent answers were: 'After the fellow shopper asked for a chair for me, it was placed next to the store employee who, incidentally could have seen the hanger on the floor . . . (The manager) called the two clerks who were stocking the counters in the aisle I first attempted to use, asked them why the coat hanger was on the floor. One of them replied that probably some customer threw it down there . . .'

Upon defendant moving for a summary judgment in reliance upon the foregoing quotations from plaintiff's answers the plaintiff's response was that 'in this case all questions of neglignce, proximate cause, etc., are questions to be passed upon by a jury. That the defendant has not shown that none of its many employees were negligent in the premises considered.'

1. 'As in all slip-and-fall cases the facts determine if the particular situation comes within those controlling precedents which have ruled for plaintiff or defendant or held the question to be for determination by the jury.' Lamberson v. Norris, 135 Ga.App. 647, 218 S.E.2d 658.

2. As was said in Food Fair, Inc. v. Mock, 129 Ga.App. 421, 422, 199 S.E.2d 820, 821: 'The general law relating to 'slip and fall' cases has been well established for a period of years and the case citations are legion.' Judge Stolz followed this statement with a summary of the applicable principles. It is unnecessary to extend this opinion by repetition of those principles and citations therein. Based upon those authorities this court there concluded that the pleadings were pierced as to the existence of any defect. We further concluded that the plaintiff had failed 'to establish by evidence the existence of a genuine issue of material fact in each of the two essential elements in this type of case, i.e., the existence of a defect and the defendant's awareness thereof, either actual or constructive. (Cits.)' The opinion ended with language peculiarly pertinent to the case sub judice: 'The evidence simply shows that the plaintiff fell while shopping in the defendant's store. This is insufficient. See W. T. Grant Co. v. Phillips, 116 Ga.App. 650, 158 S.E.2d 312. To hold the defendant responsible in damages under the evidence presented, would make the storekeeper an insurer of the plaintiff's safety while on the premises. This is not the rule. (Cits.)'

Other recent decisions containing numerous precedents in slip-and-fall cases holding similarly against the plaintiff customer are Hammonds v. Jackson, 132 Ga.App....