Mitchell v. Food Giant, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG; BANKE; CARLEY
• Citation: Mitchell v. Food Giant, Inc., 337 S.E.2d 353, 176 Ga.App. 705 (Ga. App. 1985)
• Decision Date: 30 September 1985
• Docket Number: No. 70428,70428
• Parties: MITCHELL v. FOOD GIANT, INC.

Page 353

337 S.E.2d 353

176 Ga.App. 705

MITCHELL v. FOOD GIANT, INC.

No. 70428.

Court of Appeals of Georgia.

Sept. 30, 1985.

Rehearing Denied Nov. 5, 1985.

Jack O. Morse, Atlanta, for appellant.

Franklin N. Biggins, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

In this slip and fall case, the plaintiff-appellant slipped on a radish on the floor of appellee's grocery store. At the time of appellant's slip and fall, a customer and the appellee's store manager and produce boy were all in the produce department of the store. The customer was "on the end of the counter on the same side.... The manager and the produce boy ... came over to help me.... The produce employee ... was on the other side. He was opposite of me.... In between [Ms. Mitchell] and the manager and the produce employee was the actual food...." It seems obvious therefore that the area of the floor upon which the radish fell and upon which Ms. Mitchell stepped and/or slipped and fell was separated from the line of sight of the store employees by an aisle divider. There is no evidence in the case that appellee or its employees had actual knowledge of the foreign substance on the floor; there is no evidence as to how long the radish had been on the aisle floor when appellant slipped and fell. The trial court granted a directed verdict to the appellee Food Giant at the close of appellant's case. She appeals.

Held:

The appellant contends that she showed evidence of appellee's constructive knowledge of the foreign substance, by the fact alone that employees of the appellee were "in the immediate area of the dangerous condition and could have easily seen the substance." Lend Lease Transp. Co. v. McBride, 169 Ga.App. 902, 903, 315 S.E.2d 449; Piggly Wiggly Southern v. Erfourth, 152 Ga.App. 468, 263 S.E.2d 249; Piggly Wiggly Southern v. Conley, 139 Ga.App. 532, 229 S.E.2d 25. The appellee Food Giant contends that, the law quoted by appellant notwithstanding, to sustain an action for negligence based on constructive knowledge of the foreign substance by the defendant, the plaintiff must "show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant." Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327.

We agree with appellee Food Giant that it is entitled to a directed verdict under the facts in this case. However, our analysis of the cases cited by Mrs. Mitchell causes us to conclude that she is confused when she urges that these cases seem to authorize a cause of action or a verdict based upon no more than a showing that an employee of the defendant was in the immediate area of the fall. The law in this state, including the three recent cases cited by appellant, never made such a statement. The law actually requires the substance to have been on the floor for a sufficient length of time to give the defendant an opportunity to discover it.

The three cases cited by appellant (supra), and Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 345, 226 S.E.2d 142, which is the case cited for the principle stated in Alterman Foods, supra, all seem to conclude there is a class of case in which liability can be shown regardless how long the hazard may have been present if there is proof that the defendant's employee was "in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard." In the three cases cited by appellant, she argues this means that the plaintiff need only show that the employee was "in the immediate area of the dangerous condition."

However, it can readily be seen that the cases relied upon in the cited authority which allegedly established the contended proposition do not support it.

In S.H. Kress & Co. v. Flanigan, 103 Ga.App. 301, 304, 119 S.E.2d 32, we held that if the allegations show the defendant had the opportunity to discover the defect, a jury question is raised. The allegations showed the defendant's servants were in the area where plaintiff fell, "for a time prior" to the time plaintiff fell, and the foreign substance was alleged to have remained on the floor "for such a length of time to give the defendant ... notice of the dangerous condition of its stairway, prior to plaintiff's fall, because Christmas shopping patrons of the defendant ... had tracked the substance from the steps ... throughout the remaining portion of the basement floor and some of it had actually been tracked back up and onto the bottom steps." We held that "[u]nder these allegations it [could not] be said that ... defendant did not have an opportunity to discover [the hazard]."

In Home Fed. Savings etc. Assn. v. Hulsey, 104 Ga.App. 123, 121 S.E.2d 311, it was held that in order to set forth a cause of action, the petition must "allege facts or circumstances sufficient to make it a question of fact as to whether the alleged dangerous condition had existed for a sufficient length of time so that knowledge would be imputed to the defendant. [Cits.]" The petition was dismissed because it made no such allegation.

In Belk-Gallant Co. v. Cordell, 107 Ga.App. 785, 131 S.E.2d 575, the court cited S.H. Kress & Co., supra, and held that the petition in the case met the test of showing the defendant's superior knowledge of and opportunity to discover and rectify the danger. That petition alleged the slippery substances had been tracked onto the floor "all during the day" from the time the store opened to the time plaintiff fell. The gist of the case is the holding that the plaintiff must have an "opportunity to discover and rectify the defect" even though no specific length of time is alleged.

In Ward v. Veterans of Foreign Wars, 109 Ga.App. 563, 564, 136 S.E.2d 481, we cited S.H. Kress & Co., supra, and Belk-Gallant Co., supra, as both involving evidence that the substance had been on the floor for a length of time sufficient to give defendants an opportunity to discover the hazard. The petition was dismissed in Ward because it did not "set out facts from which an inference of constructive knowledge can be drawn from the length of time the [substance] was permitted to remain on the floor.... In order to set forth a cause of action based upon constructive notice or knowledge, the petition must allege facts or circumstances sufficient to make it a question of fact as to whether the alleged dangerous condition had existed for a sufficient length of time so that knowledge would be imputed to the defendant. [Cits.]"

In Sharpton v. Great A & P Tea Co., 112 Ga.App. 283, 285, 145 S.E.2d 101, we held that as a general rule when the defendant's liability is based on constructive knowledge of a dangerous condition, the petition must allege facts and circumstance sufficient to make it a question of fact "whether the alleged dangerous condition had existed for a sufficient length of time so that knowledge of it would be imputed to the defendant." There the evidence showed the defendant's employee at the check-out counter had direct vision of the foreign substance on the aisle floor before he waved or motioned for the plaintiff to come to that aisle.

In Banks v. Colonial Stores, 117 Ga.App. 581, 584-585, 161 S.E.2d 366, we stated for the first time that there are "two different classes of cases which may be based on constructive knowledge of a defect." The first class was said to require a statement of the period of time the dangerous condition has been allowed to exist, from which a jury could conclude the defendant breached his duty to inspect the premises and keep them in a safe condition. The second class of case involves actual or constructive knowledge of the dangerous condition, and, as to evidence of constructive knowledge, we said that where it was alleged that defendant's employees were in the immediate area of the dangerous condition and could easily have seen the substance, "it is not necessary to allege any specific length of time that the condition had existed." Id., p. 585, 161 S.E.2d 366. This statement could be taken to mean that one need only show an employee had been in the immediate area of the dangerous condition, but in fact the case still requires evidence that the defendant had "the means and opportunity to discover the same." Id., p. 585, 161 S.E.2d 366. It can easily be seen that the two cases cited for that proposition, S.H. Kress & Co. and Sharpton, supra, were in fact based on evidence that although no "specific length of time" was alleged the evidence showed the condition had existed for a time prior to the fall, thus giving the defendant's employees in the immediate area an opportunity to discover and rectify the danger. In fact, the evidence in the Banks case showed that green beans had been on the floor for five minutes. This was not deemed enough to show negligence in failing to exercise reasonable care in inspecting and keeping the premises in a safe condition, but the fact that the defendant's employee had been in the area where the beans had been for five minutes, was enough to raise a jury question of constructive knowledge. See also Burger Barn v. Young, 131 Ga.App. 828(4), 207 S.E.2d 234 and Professional Bldg. v. Reagen, 129 Ga.App. 183, 199 S.E.2d 266.

The rule actually is that a defendant's constructive knowledge of a foreign substance may be shown where the defendant had an "opportunity to discover the [defect]." Banks, supra, 117 Ga.App. p. 585, 161 S.E.2d 366; Belk-Gallant Co., supra; Sharpton, supra, 112 Ga.App. p. 285, 145 S.E.2d 101; S.H. Kress & Co., supra, 103 Ga.App. p. 302, 119 S.E.2d 32. Such an "opportunity to discover" may be shown by evidence that the substance had been tracked about the store...