Smith v. Wal-Mart Stores, Inc.

Decision Date10 May 1991
Docket NumberWAL-MART,No. A91A0305,A91A0305
Citation406 S.E.2d 234,199 Ga.App. 808
PartiesSMITH v.STORES, INC.
CourtGeorgia Court of Appeals

William Eckhardt, Albany, for appellant.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, Albany, for appellee.

ANDREWS, Judge.

This is an appeal from the grant of summary judgment to defendant Wal-Mart Stores in this slip and fall case. Viewed in favor of Smith, the opponent of the summary judgment motion, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769(1), 281 S.E.2d 148 (1981), the evidence was that she was injured when she slipped in a puddle of clear liquid in the middle of an aisle in the patio furniture section at Wal-Mart. Smith did not see the substance on the floor before she fell, although her shopping companion did. Smith claimed that Wal-Mart was negligent in failing to properly inspect and maintain the premises.

In support of its motion for summary judgment, Wal-Mart filed three affidavits in which the testifying employees swore that they were unaware of the substance on the floor. In the store manager's affidavit, he stated that on the date of Smith's fall, Wal-Mart employees swept the floor at 11:30 a.m., 3:00 p.m., 6:30 p.m. and at the close of the business day. He stated that it was Wal-Mart's policy that any employee observing a spill on the floor was to secure the area and call for someone with a broom or mop to clean up the spill. He further swore that there were no reports of any spills on the date of Mrs. Smith's fall.

In order to recover in a slip and fall case of this nature, 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. Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). Here, the inquiry under the first prong is limited to whether Wal-Mart had constructive knowledge of the liquid, since there was no evidence that Wal-Mart had actual knowledge of such substance. Cf. Padgett v. M & M Super Market, 195 Ga.App. 799, 395 S.E.2d 245 (1990).

Constructive knowledge by an owner or occupier of the foreign substance can be established in one of two ways. First, "[c]onstructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard." Food Giant v. Cooke, 186 Ga.App. 253, 254, 366 S.E.2d 781 (1988); see also Sain v. K-Mart Corp., 190 Ga.App. 751, 752, 380 S.E.2d 299 (1989). The evidence was uncontroverted that there were no store employees in the immediate vicinity of the incident; therefore there was no constructive knowledge under the first-prong test.

The second basis for liability based on constructive knowledge is that the owner failed to exercise reasonable care in inspecting the premises. "To sustain a cause of action in the latter type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. [Cit.]" Alterman Foods, supra 246 Ga. at 623, 272 S.E.2d 327; see also Food Giant, supra; Mitchell v. Rainey, 187 Ga.App. 510, 370 S.E.2d 673 (1988); Fulton-DeKalb County Hosp. Auth. v. Estes, 187 Ga.App. 120, 369 S.E.2d 262 (1988). This part of the test focuses on whether the foreign substance was on the premises long enough that the owner should have known of it.

According to Smith's companion, the fall occurred between 1:30 and 2:00 p.m. Construing the evidence most favorably for the non-movant, the liquid could have been on the floor for as long as two and one half hours after the 11:30 a.m. cleaning. In fact, Smith and her friend claimed that upon inspection of the puddle after the fall, they noticed that the puddle seemed to have dried around the edges. Because we cannot exclude the possibility that the substance was on the floor for an unreasonably lengthy period, we conclude that a jury issue existed as to Wal-Mart's constructive knowledge under the first prong of the Alterman...

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    • United States
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    ...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 la......
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    ...knew about or should have discovered the puddle, unless the store somehow prevented her from discovering it. Smith v. Wal-Mart Stores, 199 Ga.App. 808, 810, 406 S.E.2d 234 (1991). This part of the Alterman Foods test demands that a person must "exercise ordinary care for his own safety, and......
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3 books & journal articles
  • Trial Practice and Procedure - C. Frederick Overby, Jason Crawford, and Teresa T. Abell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 50-1, September 1998
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    ...Inc., 219 Ga. App. 513, 465 S.E.2d 710 (1995); Boykin v. North, 218 Ga. App. 435, 461 S.E.2d 598 (1995); Smith v. Wal-Mart Stores, Inc., 199 Ga. App. 808, 810, 406 S.E.2d 234, 236 (1991) (plaintiff's failure to look at floor coupled with admission that plaintiff would have observed hazard h......
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    • Mercer University School of Law Mercer Law Reviews No. 50-1, September 1998
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    • Mercer University School of Law Mercer Law Reviews No. 50-2, January 1999
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