Smith v. Winn-Dixie Atlanta, Inc.
| Citation | 203 Ga.App. 565,417 S.E.2d 202 |
| Decision Date | 12 March 1992 |
| Docket Number | WINN-DIXIE,No. A92A0092,A92A0092 |
| Parties | SMITH v.ATLANTA, INC. |
| Court | United States Court of Appeals (Georgia) |
Kenneth J. Rajotte, for appellant.
Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for appellee.
Lenora Smith brought suit against Winn-Dixie Atlanta, Inc. to recover damages for injuries she incurred when she slipped and fell at a Winn-Dixie store. The trial court granted Winn-Dixie's motion for summary judgment, and Smith appeals.
The record reveals that after paying for her groceries, appellant was pushing a grocery cart from the checkout counter to the door when she slipped and fell. At her deposition, appellant testified that although she had not noticed anything on the floor before she fell, after falling she observed "a clear liquid" puddle approximately ten inches in diameter and "a little pack of plastic from the handle that comes from inside of the shopping bags" on the floor near the place where the fall occurred. Appellant opined that she slipped on these items. By affidavit, Douglas Harvey, then the store's junior assistant manager averred that his responsibilities included visually inspecting the floor in the front area of the store, and that he had done so ten to fifteen minutes prior to the time appellant stated she fell and had found the floor to be "clean, dry[,] and free of any foreign substance."
Appellant contends the trial court erred by granting summary judgment to appellee because genuine issues of fact remain for jury determination. We do not agree. While a proprietor is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, to establish a proprietor's liability for a slip and fall attributable to a foreign substance on the floor, the customer must show that the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. Alterman Foods v. Ligon, 246 Ga. 620, 622, 272 S.E.2d 327 (1980). In this case, no contention is made that appellee had actual knowledge of the liquid and plastic appellant said she observed on the floor. When an action is based on constructive knowledge, to avoid summary judgment for the defendant, the plaintiff must establish a question of fact whether the foreign substance remained on the floor for a sufficient length of time for knowledge of it to be imputed to the proprietor, showing that he had an opportunity to discover the defect and correct it. Smith v. Wal-Mart Stores, 199 Ga.App. 808, 406 S.E.2d 234 (1991). This may be done by showing that employees of...
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