Piggly Wiggly Southern, Inc. v. James

• Decision Date: 14 March 1997
• Docket Number: No. A97A0452,A97A0452
• Citation: 485 S.E.2d 223,225 Ga.App. 846
• Parties: , 97 FCDR 1478 PIGGLY WIGGLY SOUTHERN, INC. v. JAMES.
• Court: Georgia Court of Appeals

Page 223

485 S.E.2d 223

225 Ga.App. 846, 97 FCDR 1478

PIGGLY WIGGLY SOUTHERN, INC. v. JAMES.

No. A97A0452.

Court of Appeals of Georgia.

March 14, 1997.

Reconsideration Dismissed April 1, 1997.

Jones, Cork & Miller, Timothy Harden, III, Wendell K. Howell, Macon, for appellant.

Divine, Dorough & Sizemore, Kermit S. Dorough, Jr., Albany, for appellee.

BIRDSONG, Presiding Judge.

Appellant Piggly Wiggly Southern, Inc. appeals the order of the trial court denying it summary judgment in this slip and fall case filed by appellee/plaintiff Betty Jean James. Held:

Because it appears that appellee failed to adduce evidence from which a trier of fact could infer that appellant had superior knowledge of the claimed hazard, we conclude that the trial court erred in denying appellant's motion for summary judgment. Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474).

Appellee slipped and fell in a three-inch by five-inch puddle of reddish-colored ham juice, which was visible against the grocery store's white floor.

At the time of the incident, the store was well lighted, and appellee had no trouble seeing. Appellee did not see the puddle because she was looking toward the milk department at the time of the incident; milk was the next item she was going to purchase. Voluntarily looking at merchandise or aisle signs displayed in a store does not constitute a distraction in a slip and fall case; one cannot claim the benefit of a self-induced distraction. Compare McIntyre v. Pic, etc. Drug Co., 213 Ga.App. 58, 60(3), 443 S.E.2d 874; Minor v. Super Discount Mkts., 211 Ga.App. 123, 438 S.E.2d 384; accord Moore v. Kroger Co., 221 Ga.App. 520, 522, 471 S.E.2d 916.

Further, appellee offered no reason to explain why she could not have seen the red liquid had she been looking where she was going. In fact, appellee testified she did not even look to see if a foreign object was on the floor after her fall. Rather, after her fall, store employees observed the reddish or pink substance on the floor where appellee had been. One employee testified, without refutation, that it looked as if appellee's foot had gone through this reddish or pinkish liquid. Appellee was lying beside or over the liquid, and the employee could not see it until appellee was picked up from the floor. The meat manager who viewed the liquid was positive that it was ham juice. The store manager dust-mopped the area where appellee slipped only ten to fifteen minutes before the incident and stated that at that time the floor was clean and dry. Compare Mazur v. Food Giant, 183 Ga.App. 453(1), 359 S.E.2d 178. An employee of the meat department stated that he had handed appellee a ham several minutes prior to her fall; at that time, the employee was about ten to twelve feet away from the place appellee fell; however, appellee was blocking his view of that portion of the floor.

To state a cause of action in a slip and fall case, appellee/plaintiff must adduce evidence showing (1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327. In this latter regard, " '[t]he 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.' " (Emphasis supplied.) Id. If a defendant discharges his burden, within the meaning of Lau's Corp., supra, by pointing out by reference to the affidavits,...