Moore v. Kroger Co.

Decision Date23 May 1996
Docket NumberNo. A96A0715,A96A0715
Citation221 Ga.App. 520,471 S.E.2d 916
PartiesMOORE v. KROGER COMPANY.
CourtGeorgia Court of Appeals

Graham G. McMurray, Atlanta, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Robert M. Ethridge, Craig A. Brookes, Atlanta, for appellee.

JOHNSON, Judge.

Janice S. Moore brought this tort action against the Kroger Company seeking to recover for personal injuries sustained when she slipped and fell in a Kroger grocery store. The trial court granted summary judgment to Kroger and Moore appeals.

This is a "slip and fall" premises liability case in which the facts presented to the trial court are straightforward and not in material dispute. Moore testified at her deposition that when she entered the Kroger Company store she did not take a shopping cart, but was collecting ingredients to make lasagna. She was walking up the aisle where the pasta and pasta sauces were located, carrying two pounds of meat, a loaf of bread and two pounds of cheese. She was looking at the various brands of sauces when she slipped and fell half-way down the aisle. Asked "If you had been looking down, could you have seen the orange substance on the white floor?" Moore replied "I would think so ... yes."

At the threshold of analysis in every such premises liability case stand two well-settled legal principles: First, the owners and occupiers of property are not insurers of the safety of their invitees; and, second, in order to prevail, the plaintiff must show that the owner or occupier of the premises had superior knowledge of the alleged defect which caused the plaintiff's fall. See Gaydos v. Grupe Real Estate, etc., 211 Ga.App 811, 812, 440 S.E.2d 545 (1994); Howell v. Three Rivers Security, Inc., 216 Ga.App. 890, 891, 456 S.E.2d 278 (1995); Westbrook v. M & M Supermarkets, 203 Ga.App. 345(1), 416 S.E.2d 857 (1992). Because "slip and fall" cases are frequently very fact-specific and fact-intensive, it sometimes has been difficult to apply these principles correctly and difficult to distinguish those cases in which summary judgment is demanded from those in which to grant summary judgment would be an injustice. This is not one of those difficult cases, however.

To survive summary judgment in this case, Moore must show that the Kroger Company had actual or constructive knowledge of the hazard created by the spaghetti sauce upon which she slipped and that she was without knowledge of the hazard or, for some reason attributable to Kroger, she was prevented from discovering the hazard. See Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980).

Moore has presented no evidence to contradict Kroger's evidence that it had no actual knowledge of the presence of the sauce on the floor. Furthermore, Moore testified that she had no idea how long the foreign substance had been on the floor. There is no evidence even suggesting that the foreign substance was on the floor for a length of time sufficient for knowledge of its presence to be imputed to Kroger such as would give rise to a finding of constructive knowledge of the hazard. Compare Brown v. Piggly Wiggly, etc., 210 Ga.App. 459, 460, 436 S.E.2d 513 (1993). Likewise, Moore's testimony that she saw a Kroger employee behind a cash register at the end of the aisle is insufficient to raise an inference that any employee of Kroger was in the immediate vicinity of the hazard and could have noticed and removed it. Compare Queen v. Kroger Co., 191 Ga.App. 249, 250(1), 381 S.E.2d 413 (1989). The dissent extrapolates that "the jury would be authorized to find that defendant may be charged with knowledge of the hazard, established by the presence of its cashier, who was in a position to warn plaintiff even if she could not leave her register to clean up the spill" and concludes that a jury would be authorized to find that "plaintiff did not necessarily fail to exercise ordinary care for her own safety, even though she did not notice the smeared orange substance against the grayish-white tile, since defendant's employee failed to warn plaintiff." However, there is no evidence that anyone working behind the cash register, half an aisle away, saw the sauce at all. There simply is no duty to warn about a condition which one does not know exists.

In any event, a failure to warn does not relieve a plaintiff of her legal obligation to exercise ordinary care for her own safety. The purely speculative testimony cited by the dissent that "if someone was stocking the meat counter, they had a clear view of that aisle" adds nothing to our inquiry. Neither does the testimony regarding Kroger employees' conduct after the fall contribute to our analysis. Even if we assume Kroger had actual or constructive knowledge of the hazard, the store would still be entitled to summary judgment if Moore knew about the hazard or should have discovered and avoided it, unless Kroger somehow prevented her from discovering it. Id. See Smith v. Wal-Mart Stores, 199 Ga.App. 808, 810, 406 S.E.2d 234 (1991). Alterman Foods, supra, established the test for determining whether Moore knew or should have discovered and avoided the hazard created by the spilled sauce. She must "exercise ordinary care for [her] own safety, and must by the same degree of care avoid the [store's] negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her]." (Citations and punctuation omitted.) Id. at 623, 272 S.E.2d 327. Moore effectively admits that she simply did not exercise ordinary care because her own testimony shows that she completely failed to look to see if the way was clear.

Moore does not claim that the store induced any distraction other than displaying its merchandise on the shelves. This has been held time and again to be a self-induced distraction which does not abrogate a plaintiff's obligation to exercise ordinary care for her own safety. Riggs v. Great Atlantic & Pacific Tea Co., 205 Ga.App. 608, 609, 423 S.E.2d 8 (1992); Harper v. Kroger Co., 212 Ga.App. 570, 571, 443 S.E.2d 7 (1994); Piggly Wiggly Southern v. Weathers 216 Ga.App. 12, 14, 453 S.E.2d 74 (1994). The record before us shows that Moore failed to exercise ordinary care for her own safety when she did not discover and avoid a clearly visible hazard presented by the sauce on the floor. The undisputed evidence before the trial court demanded its conclusion that the proximate cause of the fall was Moore's own failure to exercise ordinary care to discover and avoid an obvious hazard. On the record before it and before us, the trial court was required to grant summary judgment in Kroger's favor. Minor v. Super Discount Markets, 211 Ga.App. 123, 124-125, 438 S.E.2d 384 (1993); Colevins v. Federated Dept. Stores, 213 Ga.App. 49, 52, 443 S.E.2d 871 (1994); Bruno's, Inc. v. Pendley, 215 Ga.App. 108, 449 S.E.2d 637 (1994); Baker v. Winn Dixie, etc., 219 Ga.App. 513, 465 S.E.2d 710 (1995).

Summary judgment is a tool which should be used most carefully and, obviously, only when the record demands judgment as a matter of law. It is a great injustice for a plaintiff to be denied an opportunity to present her issues to a jury for determination where a record does not demand judgment for a defendant; but it is an equally great injustice to deny summary judgment to a defendant, putting him to the expense and risk of a trial, where, as here, the record does demand judgment in its favor as a matter of law.

Judgment affirmed.

BEASLEY, C.J., BIRDSONG and POPE, P.JJ., and ANDREWS, BLACKBURN and SMITH, JJ., concur.

RUFFIN, J., concurs specially.

McMURRAY, P.J., dissents.

RUFFIN, Judge, concurring specially.

Slip and fall cases continue to come to us with baffling regularity. Indeed one is tempted to ask: "How many ways can one slip and fall?" The problem arises not from the myriad ways to slip and fall, but, rather, from our inconsistent application of certain stale principles.

Our law in slip and fall cases is so confusing that it places both plaintiffs and defendants in the untenable and unenviable position of having to choose between the disastrous and the despicable. Indeed, this area of the law, more than any other, may constitute the enigma of our time. As we strive for strength in the struggle, our goal should be not only to reach a just and fair result, but also to eliminate confusion and bring some predictability to this troublesome area.

Although I concur in the majority's opinion, I write separately to address what I believe to be the appropriate boundaries of summary judgment in a "foreign substance" slip-and-fall such as this one and to clarify the proper analysis to be applied.

1. The dissent refers to a "comparative negligence analysis" to determine whether Kroger or Moore proximately caused Moore's injury. The proper test on a proprietor's motion for summary judgment, however, is a two-part determination of the parties' knowledge of the foreign substance. The separate issues are 1) whether the proprietor had actual or constructive knowledge of the foreign substance and 2) whether the plaintiff did not know of the foreign substance and, exercising ordinary care, would not have discovered the foreign substance in time to avoid it. Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980); Piggly Wiggly Southern v. Brown, 219 Ga.App. 614, 468 S.E.2d 387 (1995); Smith v. Wal-Mart Stores, 199 Ga.App. 808, 406 S.E.2d 234 (1991). The proprietor is entitled to summary judgment if he can show, without question of fact, either his lack of actual or constructive knowledge or the plaintiff's actual or imputed knowledge. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). In this analysis, the court does not compare negligence; it compares knowledge. A plaintiff may prevail...

To continue reading

Request your trial
13 cases
  • Robinson v. Kroger Co.
    • United States
    • Georgia Supreme Court
    • 3 December 1997
    ...found to constitute a self-induced distraction (Piggly Wiggly v. James, supra, 225 Ga.App. 846, 485 S.E.2d 223; Moore v. Kroger Co., 221 Ga.App. 520, 471 S.E.2d 916 (1996); McIntyre v. Pic & Save Drug Co., 213 Ga.App. 58, 443 S.E.2d 874 (1994); Foodmax v. Terry, supra, 210 Ga.App. 511, 436 ......
  • JH Harvey Co. v. Reddick
    • United States
    • Georgia Court of Appeals
    • 27 September 1999
    ...224 Ga.App. at 142-150, 480 S.E.2d 199; Johnson v. Autozone, 219 Ga. App. 390, 393, 465 S.E.2d 463 (1995); Moore v. Kroger Co., 221 Ga.App. 520, 521, 471 S.E.2d 916 (1996); Haskins v. Piggly Wiggly Southern, 230 Ga.App. 350, 351, 496 S.E.2d 471 Without evidence as to whether the hazard had ......
  • Hartley v. Macon Bacon Tune, Inc.
    • United States
    • Georgia Court of Appeals
    • 25 September 1998
    ...390, 393, 465 S.E.2d 463 (1995) reached the same conclusion. Similarly, in our nine judge whole court opinion in Moore v. Kroger, 221 Ga.App. 520, 521, 471 S.E.2d 916 (1996), we addressed a slip and fall claim against Kroger in which Kroger produced no evidence that it had complied with rea......
  • Atlanta Affordable Housing Fund v. Brown
    • United States
    • Georgia Court of Appeals
    • 15 January 2002
    ...246 Ga. 620, 623, 272 S.E.2d 327 (1980); Kmart Corp. v. Jackson, 239 Ga.App. 176, 177-178, 521 S.E.2d 93 (1999); Moore v. Kroger Co., 221 Ga.App. 520, 521, 471 S.E.2d 916 (1996). Since both the overgrown bushes and the presence of the "no parking" sign had to have existed for more than just......
  • Request a trial to view additional results
2 books & journal articles
  • Torts - Cynthia Trimboli Adams and Charles R. Adams Iii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-1, September 1996
    • Invalid date
    ...471 S.E.2d at 915 (quoting Finch v. Weaver, 213 Ga. App. 514, 515, 445 S.E.2d 289 (1994)). 56. Id. at 482, 471 S.E.2d at 915. 57. Id., 471 S.E.2d at 916. 58. 220 Ga. App. 47, 467 S.E.2d 230 (1996). 59. Id. at 48, 467 S.E.2d at 232. 60. Id. at 47,467 S.E.2d at 231. See O.C.G.A. Sec. 9-11-4(d......
  • Trial Practice and Procedure - C. Frederick Overby and Teresa T. Abell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-1, September 1996
    • Invalid date
    ...471 S.E.2d at 915 (quoting Finch v. Weaver, 213 Ga. App. 514, 515, 445 S.E.2d 289 (1994)). 56. Id. at 482, 471 S.E.2d at 915. 57. Id., 471 S.E.2d at 916. 58. 220 Ga. App. 47, 467 S.E.2d 230 (1996). 59. Id. at 48, 467 S.E.2d at 232. 60. Id. at 47,467 S.E.2d at 231. See O.C.G.A. Sec. 9-ll-4(d......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT