Straughter v. JH Harvey Co., Inc.

• Decision Date: 20 March 1998
• Docket Number: No. A97A1873.,A97A1873.
• Citation: 500 S.E.2d 353,232 Ga. App. 29
• Parties: STRAUGHTER v. J.H. HARVEY COMPANY, INC.
• Court: Georgia Court of Appeals

500 S.E.2d 353

232 Ga. App. 29

STRAUGHTER v. J.H. HARVEY COMPANY, INC.

No. A97A1873.

Court of Appeals of Georgia.

March 20, 1998.

Reconsideration Denied April 3, 1998.

Certiorari Denied September 11, 1998.

Kunes & Kunes, G. Gerald Kunes, Tifton, for appellant.

Clyatt, Clyatt, Wallace & DeVaughn, Robert M. Clyatt, Joni B. Parker, Valdosta, for appellee.

BLACKBURN, Judge.

In this grocery store slip and fall case, Louvenia Straughter appeals the trial court's grant of summary judgment to defendant J.H. Harvey Company. Because there are genuine issues of material fact regarding defendant's liability, we reverse.

This Court reviews de novo the grant of a motion for summary judgment to determine whether the trial court properly found that no material issues of fact existed and that the movant was entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga.App. 780, 781, 437 S.E.2d 832 (1993). "To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Moreover, we are reminded by the Supreme Court that "the `routine' issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and ... summary judgment is granted only when the evidence is plain, palpable, and undisputed." Robinson v. Kroger Co., 268 Ga. 735, 748-749, 493 S.E.2d 403 (1997).

1. "[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff's evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff—i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known." Id., modifying Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980).

"[C]onstructive knowledge may be established by showing that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance or that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery." (Punctuation omitted.) Brown v. Piggly Wiggly Southern, 228 Ga.App. 629, 631(3)(b), 493 S.E.2d 196 (1997).

In this case, Straughter testified that she walked into defendant's store, headed straight for the produce department, and fell as she approached the tomatoes. She testified that there was a store employee in the produce section who should have witnessed her fall. She testified that this employee came to her right after the fall and picked up a green item on which she slipped. Viewed in the light most favorable to Straughter, this testimony supports an inference that the employee could easily have discovered the item had he looked. See Brown v. Piggly Wiggly Southern, supra. Accordingly, there is a jury question as to whether Harvey had constructive knowledge of the hazard.

Moreover, defendant has failed to submit an affidavit from this employee establishing that he could not have easily seen the item. OCGA § 24-4-22 provides that "[i]f a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted." Although defendant contends that there was no employee in the produce department at the time of the incident, the jury would be entitled to find otherwise. Under OCGA § 24-4-22, defendant's failure to produce testimony from this employee would allow the jury to conclude that the employee could easily have seen the item, and that defendant should thus be charged with constructive knowledge.

The dissent contends that, notwithstanding this testimony, defendant was entitled to summary judgment because Straughter could not establish exactly how long the item had been on the floor before her fall. However, we have previously held that, in order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident. See Fussell v. Jimbo's Log Kitchen, 227 Ga.App. 161, 165-166, 489 S.E.2d 71 (1997) (whole court); Newell v. Great A & P Tea Co., 222 Ga.App. 884, 886-887, 476 S.E.2d 631 (1996); Sheriff v. Hosp. Auth. of Houston County, 221 Ga. App. 14, 15, 471 S.E.2d 3 (1996) (whole court); Piggly Wiggly Southern v. Brown, 219 Ga.App. 614, 616, 468 S.E.2d 387 (1995) (whole court); Daniel v. John Q. Carter Enterprises, 218 Ga.App. 223, 225, 460 S.E.2d 838 (1995) (whole court); Burke v. Bi-Lo, 212 Ga.App. 115, 117, 441 S.E.2d 429 (1994); Jackson v. Wal-Mart Stores, 206 Ga.App. 165, 169, 424 S.E.2d 845 (1992); Winn-Dixie of Greenville v. Ramey, 186 Ga.App. 257, 259, 366 S.E.2d 785 (1988).

In this case, there is no admissible evidence in the record that defendant followed a reasonable inspection and sweeping policy on the date in question. Defendant submitted the affidavit of its produce manager, stating that the store had a policy of sweeping the entire floor every hour and the produce department floor every three hours. However, the affidavit does not state that such policy was in fact carried out on the date in question. Although the affidavit attaches what it refers to as "sweep cards" for the grocery and produce departments, no attempt is made to authenticate these cards as business records or to explain the entries thereon. Accordingly, as there is no admissible evidence that defendant followed a reasonable inspection and cleaning procedure, defendant can be charged with constructive knowledge even if plaintiff cannot show how long the substance had been on the floor. See Piggly Wiggly Southern v. Brown, supra.

Moreover, defendant has not submitted affidavits from the employee or employees who actually carried out the purported inspections and sweeping on the date in question. Since defendant has failed to present evidence from these material witnesses within its control, OCGA § 24-4-22 allows an inference to be drawn that their testimony would show that they did have actual or constructive knowledge of the hazard but negligently failed to remove it.

Finally, the sweep cards relied upon by defendant, even if admissible, do not in fact establish that defendant followed reasonable inspection and cleaning policies on the date in question. First, the entries on the sweep cards are not readily decipherable to an untrained reader, and no explanation is given in the accompanying affidavit. For example, the grocery department sweep cards contain what appear to be time entries that do not correspond to actual times, e.g., "1570," "1374," "1690," "2065," and "2082." No explanation is given as to what these cryptic entries mean. Moreover, it is not readily apparent which of the entries on the sweep cards, if any, relate to the date in question. Furthermore, the cards do not appear to substantiate the claim in the accompanying affidavit that the store and the produce department are swept every hour and every three hours, respectively. Accordingly, even if the cards were admissible, they do not establish defendant's compliance with reasonable inspection and cleaning procedures.

With respect to the second prong of the Robinson test, the evidence shows that plaintiff slipped on a small green item which was smashed when picked up by a store employee at the spot of her fall. Plaintiff testified that she did not know if she would have been able to see the item had she looked down at the floor, since the floor in the produce department was gray with splotches of green or blue therein. Under Robinson, whether plaintiff exercised ordinary care for her own safety under these circumstances is a question for the jury. Accordingly, as factual issues remain as to Harvey's liability, the trial court erred in granting summary judgment to Harvey.

2. The dissent dismisses the Supreme Court's recent ruling in Robinson, stating that, although Robinson modified the second prong of the Alterman Foods analysis dealing with proof of the plaintiff's knowledge of the hazard, it left intact the first Alterman Foods prong concerning the defendant's knowledge. It is indeed regrettable that the Supreme Court did not squarely address the first prong in Robinson, as the issue on appeal in that case involved the plaintiff's knowledge of the hazard. However, the clear thrust of the opinion was an exhortation to avoid creating impossible hurdles for slip and fall plaintiffs at the summary judgment stage. This was made clear in the Court's conclusion: "In sum, we remind members of the judiciary that the `routine' issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed." (Emphasis supplied.) Id. at 748, 493 S.E.2d 403

However, rather than heed the Supreme Court's admonition to "lighten the load placed on plaintiffs...