Robinson v. Kroger Co.

• Decision Date: 29 August 1996
• Docket Number: No. A96A0966,A96A0966
• Citation: 476 S.E.2d 29,222 Ga.App. 711
• Parties: ROBINSON v. KROGER COMPANY.
• Court: Georgia Court of Appeals

Page 29

476 S.E.2d 29

222 Ga.App. 711

ROBINSON v. KROGER COMPANY.

No. A96A0966.

Court of Appeals of Georgia.

Aug. 29, 1996.

Reconsideration Denied Sept. 11, 1996.

Certiorari Granted Jan. 29, 1997.

Fred J. Rushing, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Albert M. Yates III, Douglas A. Wilde, James R. Doyle II, Atlanta, for appellee.

SMITH, Judge.

This premises liability action arose after Henrietta Robinson allegedly slipped and fell on a green substance in the produce section at a Kroger store. The trial court granted summary judgment to Kroger on the ground that Robinson failed to exercise ordinary care for her own safety, and she appeals.

Viewed in favor of Robinson, the respondent on the summary judgment motion, evidence was presented that after walking between two produce bins, she rounded the corner of one of the bins and slipped and fell on a green substance. She did not see the substance before she fell. Although Robinson testified that she was looking down, she also testified that while walking around the produce bin, she could not see the floor where the substance may have been located. According to Robinson, her vision was obstructed by the bin, and she could not see around the corner of the island as she walked around the angle; she "did not have a good view to where I was going when I turned" because of an overhang on the island. She nonetheless turned the corner and walked into an area just previously beyond her vision. After turning the corner, she took "a step or two" and fell. ¹ Contrary to Robinson's contention in her brief that the substance was hidden by the overhang, Robinson admitted in her deposition that the substance was not underneath the overhang. She added in her deposition that if the substance had been under the overhang, she would not have stepped on it.

To prevail in a case such as this, a plaintiff must prove that the proprietor had actual or constructive knowledge of the substance and that he or she did not have knowledge of the existence of the substance or was prevented by the proprietor from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). An invitee is charged with exercising "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." (Citations and punctuation omitted.) Id.

Here, no evidence was presented that Kroger was responsible for Robinson's failure to use her eyesight to see the alleged green substance on the floor near the island. See Smith v. Wal-Mart Stores, 199 Ga.App. 808, 810, 406 S.E.2d 234 (1991). Without waiting until she had a clear view of the area into which she proceeded, Robinson according to her own testimony made a "sharp turn" around the corner of the produce island. She did not first discern whether it was safe to walk around the island but instead placed her "foot at a location [she] could not see." By walking into an area she could not see rather than choosing an unobscured pathway around the corner of the island, Robinson "in effect, elected to walk in the dark." Meriwether Mem. Hosp. Auth. v. Gresham, 202 Ga.App. 535, 537(1), 414 S.E.2d 694 (1992). Although the overhang on the island may have obstructed Robinson's eyesight temporarily, she could have avoided stepping where she could not see. This is not a case in which an invitee fell while being distracted by a store employee. See J. H. Harvey Co. v. Edwards, 219 Ga.App. 697, 466 S.E.2d 246 (1995); Barentine v. Kroger Co., 264 Ga. 224, 443 S.E.2d 485 (1994). In fact, Robinson admitted that she was not distracted.

Citing Bodenheimer v. Southern Bell Telephone, etc., Co., 209 Ga.App. 248, 433 S.E.2d 75 (1993), Robinson contends that she should not have been "expected to stop at the corner of the bin, peer around the corner to check for small hidden dangers, and to proceed around the corner only after first determining that there is nothing there." In Bodenheimer plaintiff tripped and fell while walking backward and stepping away from a pay telephone. This Court reversed the grant of summary judgment to defendants, finding that plaintiff backed away from the phone booth "in the normal and expected manner of one facing a telephone" and that "it is generally required that one back away from a pay telephone." Id. at 250, 433 S.E.2d 75.

We are not bound by Bodenheimer. That opinion is not binding precedent because only two judges on a three-judge panel concurred fully in the opinion. See Court of Appeals Rule 33(a). Moreover, this case is distinguished...