Robinson v. Kroger Co.

• Decision Date: 03 December 1997
• Docket Number: No. S97G0065,S97G0065
• Citation: 268 Ga. 735,493 S.E.2d 403
• Parties: , 97 FCDR 4314 ROBINSON v. KROGER COMPANY
• Court: Georgia Supreme Court

Page 403

493 S.E.2d 403

268 Ga. 735, 97 FCDR 4314

ROBINSON v. KROGER COMPANY

No. S97G0065.

Supreme Court of Georgia.

Dec. 3, 1997.

F. Joseph Rushing, The Rushing Firm, Atlanta, for Henrietta Robinson.

James Russell Doyle II, Douglas A. Wilde, Webb, Carlock, Copeland, Semler & Stair, Atlanta, for the Kroger Company.

Charles Madden Cork III, Reynolds & McArthur, Macon, for Amicus Appellant.

BENHAM, Chief Justice.

Invitee Henrietta Robinson sustained an injury to her knee in a Kroger supermarket when she slipped on a foreign substance on the store's floor and fell. The trial court granted summary judgment to Kroger in Mrs. Robinson's negligence action against the store, and the Court of Appeals affirmed, ruling that the proximate cause of Mrs. Robinson's fall was her failure to exercise ordinary care for her personal safety. Robinson v. Kroger Co., 222 Ga.App. 711, 476 S.E.2d 29 (1996). We granted certiorari to examine "the proper standard for determining whether the plaintiff in a 'slip and fall' premises liability case has exercised ordinary care sufficient to prevail against a motion for summary judgment." We reverse the judgment of the Court of Appeals and hold that an invitee's failure to exercise ordinary care for personal safety is not established as a matter of law by the invitee's admission that she did not look at the site on which she subsequently placed her foot. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.

1. The case law which has developed over the years in Georgia "slip and fall" premises liability appeals is pendulum-like. In 1980, perceiving a tendency "to drift toward a jury issue in every 'slip and fall' case[,]" this court granted a writ of certiorari and engaged in an analysis of the topic in Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). The court reiterated there, among other things, the statutory principle that an owner or occupier of land is charged with exercising ordinary care to keep the premises safe (OCGA § 51-3-1), and the fundamental basis for an owner or occupier's liability--that party's superior knowledge of the hazard encountered by the plaintiff. The court stated that an invitee might recover for personal injury suffered in a slip and fall "only when the perilous instrumentality is known to the owner or occupant and not known to the person injured...." Id., at 622, 272 S.E.2d 327. The Alterman court pointed out that an invitee must exercise ordinary care for the invitee's personal safety, using all senses in reasonable measure to discover and avoid things which might cause the invitee harm. Id., at 622-23, 272 S.E.2d 327. The court concluded that "to state a cause of action ... the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance." Id., at 623, 272 S.E.2d 327. ¹

Since 1980, the decision in Alterman Foods has been cited repeatedly in appellate court decisions in "slip and fall" premises liability cases, and defendants have successfully mounted two-pronged attacks against plaintiffs by asserting that (1) the defendant lacked the requisite actual or constructive knowledge of the hazard, and (2) the plaintiff had actual knowledge of the hazard equal or superior to that of the defendant or, would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety. In light of the requirement that plaintiff establish both the defendant's knowledge and the lack of plaintiff's knowledge, a defendant was entitled to summary judgment, the appellate courts ruled, when either the first or second Alterman prong was not established. Weighted down by the conjunctive Alterman analysis, the pendulum made a dramatic swing in the other direction as it became the rare case which escaped summary adjudication.

For several years after the Alterman decision, the focus of the appellate opinions was on the first prong, i.e., the owner/occupier's knowledge of the existence of the hazard which caused harm to the invitee/plaintiff. Where a defendant had no actual or constructive knowledge of the hazard, summary judgment in favor of the defendant was appropriate since the plaintiff could not establish that the defendant had knowledge of the hazard superior to that of the invitee. See, e.g., Kenny v. M & M, 183 Ga.App. 225, 358 S.E.2d 641 (1987); DeGracia v. Huntingdon Assoc., 176 Ga.App. 495(1), 336 S.E.2d 602 (1985); Player v. Bassford, 172 Ga.App. 135, 322 S.E.2d 520 (1984). Few cases extended the analysis beyond the "first prong" of Alterman; those which did and which concluded that the owner/occupier was entitled to summary judgment did so because the invitee had admitted knowledge of the hazardous condition and, with full appreciation of the danger, had chosen a course of conduct which resulted in injury as a result of the hazardous condition. Lindsey v. J.H. Harvey Co., 213 Ga.App. 659, 445 S.E.2d 810 (1994) (plaintiff fell on wet floor after companion had warned plaintiff of the floor's wet condition); Lea v. American Home Equities, 210 Ga.App. 214, 435 S.E.2d 734 (1993) (plaintiff had seen warning signs and knew that carpet on which she fell was wet); Bloch v. Herman's Sporting Goods, 208 Ga.App. 280, 430 S.E.2d 86 (1993) (plaintiff who consciously and deliberately put her foot in a puddle of water surrounded by ice in freezing temperatures knew risk of puddle being icy); Hudson v. Quisc, Inc., 205 Ga.App. 840, 424 S.E.2d 37 (1992) (plaintiff knew floor's condition, having earlier slid but not fallen in the vicinity of where she fell); Moore v. Service Merchandise, 200 Ga.App. 463, 408 S.E.2d 480 (1991) (plaintiff who walked through puddles and fell had previously observed puddle formation and altered his conduct so as not to walk through them); Thomson v. Sears Roebuck & Co., 196 Ga.App. 801, 397 S.E.2d 151 (1990) (plaintiff saw 4' X 5' X 5" hazard from 20 feet away and tripped over it while trying to squeeze past it); Dyer v. Joe Rigatoni's of Atlanta, 191 Ga.App. 473, 382 S.E.2d 193 (1989) (invitee attending New Year's Eve party at a restaurant decorated with streamers knew of the presence of the hazard (streamers)); Gateway Management Co. v. Sutton, 189 Ga.App. 296, 298, 375 S.E.2d 462 (1988) (plaintiff who had complained about the presence of construction debris on apartment complex's grounds and who had just walked through debris-strewn area in which she fell "had intimate knowledge of the risk ... [and] chose to assume that risk...."). In each case, the evidence was undisputed that the plaintiff had knowledge of the hazard equal to or greater than that of the owner/occupier, making it impossible for the plaintiff to prove that the owner/occupier had the superior knowledge necessary for the plaintiff to prevail. The plaintiff's behavior on each of these occasions constituted "voluntary negligence," classified by the Second Restatement of Torts as a "type"of contributory negligence: "an intentional and unreasonable exposure of [the plaintiff] to danger created by the defendant's negligence, of which danger the plaintiff knows or has reason to know...." Restatement of Law 2d, Torts § 466(a).

When the injured invitee attempted to explain that he fell due to a hazard of which he was not aware, the focus of the appellate analysis shifted from the plaintiff's voluntary exposure of self to the hazard to another aspect of the plaintiff's negligence--the plaintiff's purported failure to employ all senses in a reasonable measure to discover and avoid that which might cause personal injury. ² Because either of the two prongs of Alterman Foods was sharp enough to impale a plaintiff's case, resolution of a defendant's knowledge of the hazard's existence was oftentimes pretermitted in favor of an inquiry as to whether the injured plaintiff had fulfilled the invitee's duty to exercise ordinary care for personal safety. In Smith v. Wal-Mart Stores, 199 Ga.App. 808, 406 S.E.2d 234 (1991), it was determined that an invitee who did not see the hazard which caused the fall had failed, as a matter of law, to exercise the requisite ordinary care for personal safety when the invitee admitted he/she would have seen the hazard had the invitee been looking at the floor, and the invitee presented no evidence that the store was responsible for the invitee's failure to see the hazard. Thereafter, plaintiffs were repeatedly rebuffed based upon their admission that they would have seen the hazard had they been looking at the site where they placed their foot. See e.g., Piggly Wiggly Southern v. James, 225 Ga.App. 846, 485 S.E.2d 223 (1997); Nails v. Food Lion, 221 Ga.App. 405, 471 S.E.2d 327 (1996) wherein it was held that "Nails' apparent failure to watch where she was walking forecloses her recovery...."; Baker v. Winn Dixie, 219 Ga.App. 513, 465 S.E.2d 710 (1995); Bruno's v. Pendley, 215 Ga.App. 108, 449 S.E.2d 637 (1994); Boykin v. North, 218 Ga.App. 435, 461 S.E.2d 598 (1995); Vermont American Corp. v. Day, 217 Ga.App. 65, 67, 456 S.E.2d 618 (1995); Piggly Wiggly v. Weathers, 216 Ga.App. 12, 453 S.E.2d 74 (1994); Moore v. Winn-Dixie Stores, 214 Ga.App. 157(2b), 447 S.E.2d 122 (1994); J.H. Harvey Co. v. Kinchen, 213 Ga.App. 868, 446 S.E.2d 218 (1994); Winn Dixie v. Carroll, 212 Ga.App. 234, 441 S.E.2d 432 (1994); Minor v. Super Discount Markets, 211 Ga.App. 123, 438 S.E.2d 384 (1993); J.H. Harvey Co. v. Johnson, 211 Ga.App. 809, 440 S.E.2d 548 (1994); Foodmax v. Terry, 210 Ga.App. 511, 436 S.E.2d 725 (1993); Jester v. Ingles, 206 Ga.App. 327, 425 S.E.2d 323 (1992). But see Chaves v. Kroger, Inc., 213 Ga.App. 348, 444 S.E.2d 606 (1994) (the evidence did not...