Piggly Wiggly Southern, Inc. v. Brown

Decision Date05 December 1995
Docket NumberNo. A95A0884,A95A0884
Citation219 Ga.App. 614,468 S.E.2d 387
PartiesPIGGLY WIGGLY SOUTHERN, INC. et al. v. BROWN.
CourtGeorgia Court of Appeals

Slip and fall. Pulaski Superior Court. Before Judge West.

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

Thomas M. Jackson, Macon, for appellee.

McMURRAY, Presiding Judge.

Margaret Brown brought an action against Piggly Wiggly Southern Corporation ("Piggly Wiggly") for damages she allegedly sustained when she slipped and fell in a small puddle of water in Piggly Wiggly's grocery store. 1 Piggly Wiggly denied the material allegations of the complaint and filed a motion for summary judgment, arguing that Margaret Brown's admission that she could have seen the water (had she been looking for it) constitutes conclusive proof that Brown's own carelessness was the sole proximate cause of her alleged injuries.

On the morning of September 14, 1991, Margaret Brown and her sister, Josephine Moore, drove to Piggly Wiggly's grocery store in Hawkinsville, Georgia. Josephine Moore waited in the car while Brown went in to purchase a can of soup. After entering the store, Margaret Brown walked through a long bank of cash registers and veered right toward a table of potatoes in the produce section. Upon approaching the row of shelving which faces or borders the produce section, Margaret Brown saw "[a] little sign up there saying ... what stuff [is] on each aisle" and started to turn down the aisle toward the soup. While pivoting into the turn, however, Margaret Brown lost control and crashed hard into the potato display. She slipped in a puddle of water about the size of a dinner plate. 2

While on the floor, Margaret Brown saw a store employee in a nearby storeroom shoveling ice from an ice machine into a container. Former Piggly Wiggly employee James Hampton, who was employed as a "bag boy" there at the time of the fall, explained (in his affidavit) that "the produce man would usually have to make several trips from the ice maker to the produce counter in order to fill the area under the [fruit and vegetable] tray." James Hampton said that he observed "the produce man icing down the produce counter ..." about two hours earlier and that he then saw "water on the floor in the produce section...." James Hampton explained that the "produce man" would routinely drop "chunks of ice" on the floor as he transported it to the fruit and vegetable trays and that, "[d]uring the time [he] worked at the Piggly Wiggly Store, [he has] on more than a few occasions seen water on the floor that has remained there for long periods of time." James Hampton said the store manager "never [gave] any specific instructions ... about inspecting the aisles for water or other substances on the floor."

The trial court denied Piggly Wiggly's motion for summary judgment, finding that genuine issues of material fact remain for jury resolution. This interlocutory appeal followed. Held:

"An owner/occupier of premises has a duty to keep those premises safe for its invitees. OCGA § 51-3-1; Thompson v. Regency Mall Assoc., 209 Ga.App. 1, 432 S.E.2d 230 (1993). 'An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. (Cit.) It is this implied representation that is made to the public, by holding the land open to them, that it has been prepared for their reception, that it is safe, that is the basis for the possessor's liability. (Cit.)' Begin v. Ga. Championship Wrestling, 172 Ga.App. 293, 294, 322 S.E.2d 737 (1984).

"In order to recover for a slip and fall due to a foreign substance on the floor, the plaintiff must show that the defendant had actual or constructive knowledge of the hazard, and that the plaintiff was without equal knowledge of such. Alterman Foods v. Ligon 246 Ga. 620, 272 S.E.2d 327 (1980). 'Liability for injuries resulting from an invitee's slip and fall on a proprietor's premises is determined by the relative knowledge possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. The basis of the proprietor's liability is his superior knowledge....' Shansab v. Homart Dev. Co., 205 Ga.App. 448, 450, 422 S.E.2d 305 (1992)." Burke v. Bi-Lo, 212 Ga.App. 115, 116, 441 S.E.2d 429.

In the case sub judice, former Piggly Wiggly "bag boy" James Hampton deposed that he was aware that water had accumulated on the floor in the produce section before Margaret Brown fell and that indifference to such puddling was a matter of routine at Piggly Wiggly's store in Hawkinsville, Georgia. This evidence not only satisfies the first prong of the Alterman Foods test by indicating that a Piggly Wiggly employee had actual knowledge of the hazard which caused Margaret Brown's fall, but it would also authorize a finding (if a jury so chooses) that Piggly Wiggly, as a matter of routine indifference, did not bother to remove the hazard. Assuming the dissent is correct, however, in inferring (via the statement that there "is no evidence the store had actual knowledge of the water ...") that Margaret Brown, in order to prove actual knowledge, was required to show that either James Hampton or another Piggly Wiggly employee could call the particular water puddle where Margaret Brown fell by name (so to speak), Piggly Wiggly has failed to negate the possibility of its constructive knowledge of the hazard. Specifically, Piggly Wiggly offers no proof that it employed routine inspection procedures aimed at detecting and preventing dangerous spills in its store and, even more amazingly, Piggly Wiggly offers no testimony to rebut James Hampton's sworn statement that he had no knowledge of store policy regarding such inspections. "The evidence thus failed to negate the possibility that [Piggly Wiggly] did not exercise reasonable care in this case, even if the store had a general inspection routine. See Hilsman v. Kroger Co., 187 Ga.App. 570, 370 S.E.2d 755 (1988); Flood v. Camp Oil Co., 201 Ga.App. 451, 411 S.E.2d 348 (1991). Further, [contrary to the dissenting opinion,] in the absence of any evidence that [Piggly Wiggly] conducted a reasonable inspection of the premises prior to the fall, [Margaret Brown] was not required to establish how long the spill had remained on the floor. Jackson v. Wal-Mart Stores, 206 Ga.App. 165, 169, 424 S.E.2d 845 (1992)." Burke v. Bi-Lo, 212 Ga.App. 115, 117, 441 S.E.2d 429, supra. 3 Thus, the only question remaining is whether Margaret Brown had equal knowledge of the alleged water-hazard, i.e., did she exercise ordinary care for her own safety?

Margaret Brown testified that she did not see the small puddle of water before she fell. It therefore cannot be said (as a matter of law) that Margaret Brown actually had knowledge of the specific hazard which caused her to fall. See Grovner v. Winn Dixie Stores, 218 Ga.App. 495, 496, 462 S.E.2d 427. "Thus, the facts of this case are distinguishable from [controlling authority] in support of [the dissent's] conclusion that [Brown] is precluded from recovering because of her equal knowledge. See, e.g., Kersey v. C.S.R.A., etc., Auth., 195 Ga.App. 94, 392 S.E.2d 305 (1990) (in which plaintiff alleged no defect or foreign substance, but merely that defendant was negligent in sending her down a stairway while she was carrying a heavy load); Gyles, Inc. v. Turner, 184 Ga.App. 376, 361 S.E.2d 538 (1987) (in which plaintiff was aware of the discernible object which caused the hazard); Harris v. Star Svc., etc., Co., 170 Ga.App. 816, 318 S.E.2d 239 (1984) (in which plaintiff knew he was traversing ice and snow accumulated on the premises of defendant gas station)." Flood v. Camp Oil Co., 201 Ga.App. 451, 452, 411 S.E.2d 348, supra. Also see Van Dyke v. Emro Marketing Co., 211 Ga.App. 744, 440 S.E.2d 469 (where this Court reversed summary judgment even though there was evidence that the plaintiff had prior knowledge of the hazard which allegedly caused his fall). And contrary to the dissenting opinion in the case sub judice, we do not subscribe to the view that shoppers must be on constant lookout for such obtuse hazards as small puddles of water.

"An invitee is [simply] not required to look for ... defects continuously and without interruption. See Thompson v. Regency Mall Assoc., supra." Burke v. Bi-Lo, 212 Ga.App. 115, 117, 441 S.E.2d 429, supra. In the case sub judice, there is proof which would authorize a jury's finding that Margaret Brown was shopping, had just observed an overhead directory sign and was pivoting into a left turn when she hit a small puddle of water at the corner of an aisle, nearest the shelving facing the produce section. There is also proof which would authorize a finding that this puddle was caused by melted ice dropped by the man in charge of the produce section; that this patch of melted ice water had been on the floor for at least two hours before Margaret Brown's fall (or at least long enough for the ice to melt) and that the hazard was just large "enough for your shoe to fit in...." Under these circumstances, we cannot say (as a matter of law) that the small puddle of water which caused Margaret Brown's fall was such an open and obvious danger that the average shopper, in the exercise of ordinary care, would have observed the puddle and avoided it. See Grovner v. Winn Dixie Stores, 218 Ga.App. 495, 496, 462 S.E.2d 427, supra. Such questions of negligence and diligence, including the related issues of lack of ordinary care for one's own safety or lack of ordinary care in failing to see or observe the negligence of another, are ordinarily for a jury. Hester v. Baker, 180 Ga.App. 627, 629(3), 630, 349 S.E.2d 834.

"A finding that the plaintiff is precluded...

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