Whatley v. National Services Industry, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY; SMITH
• Citation: Whatley v. National Services Industry, Inc., 492 S.E.2d 343, 228 Ga.App. 602 (Ga. App. 1997)
• Decision Date: 29 September 1997
• Docket Number: No. A97A1067,A97A1067
• Parties: , 97 FCDR 3621 WHATLEY v. NATIONAL SERVICES INDUSTRY, INC. et al.

Page 343

492 S.E.2d 343

228 Ga.App. 602, 97 FCDR 3621

WHATLEY v. NATIONAL SERVICES INDUSTRY, INC. et al.

No. A97A1067.

Court of Appeals of Georgia.

Sept. 29, 1997.

King & Croft, Terrence L. Croft, Charlotte H. Beltrami, Atlanta, for appellant.

McClain & Merritt, M. David Merritt, William S. Sutton, Atlanta, for appellees.

BEASLEY, Judge.

Joann Whatley tripped on a wrinkled mat located at an unlit entrance to Max Fuller's Amoco Food Store. National Services Industry, Inc. ("NSI") provided the mat to Fuller. Whatley sued Fuller and NSI for negligence, and the court granted summary judgment to both. We reverse in part and affirm in part.

Construed in favor of Whatley, the evidence shows that Fuller contracted with NSI for NSI to provide commercial mats to Fuller's store, which NSI replaced with freshly laundered mats each week. The 3' X 5' mat for the store entrance was placed lengthwise on the raised sidewalk immediately outside the door so that about one foot lay on the sidewalk and about two feet lay on the wheelchair ramp leading up to the sidewalk. Between the sidewalk and the ramp was a discontinuity, which the mat covered. The mat was not fastened down.

At about 9:45 p.m. on the evening of October 2, 1993, Whatley was a passenger in a car that stopped for gas at Fuller's store where she had not been before. She went in to make a purchase. As she ascended the ramp at the entrance, her right foot, clad in a tennis shoe, caught on the wrinkled-up edge of the mat, and she fell forward into the steel door frame, sustaining serious injuries.

Whatley testified that although she saw the ramp and mat as she approached, she did not notice anything hazardous about them, for it was dark outside and the lights over the door entrance were not on. Her companions confirmed that the area near the store entrance was very dark. One companion came to assist Whatley and testified that when she stooped down to help Whatley, she saw horizontal wrinkles throughout the mat which were not visible from a standing position.

1. Whatley contends that because there are issues of material fact, the court erred in granting summary judgment to proprietor Fuller and mat-provider NSI. We will first address Fuller.

"Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. "In general, 'negligence issues are susceptible to summary adjudication only in plain, palpable and indisputable cases; the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Summary judgment may be granted only where, construing all inferences against the movant, it yet appears without dispute that the case can have but one outcome and that outcome must be in the movant's favor.' [Cit.]" Sykes v. Colony Regency Partners, Ltd., 226 Ga.App. 804, 806, 487 S.E.2d 408 (1997).

Alleging that Fuller negligently maintained the mat, Whatley presented evidence that it was wrinkled and posed a hazard to invitees. Fuller himself testified that the mat occasionally would get wrinkled up, and that he instructed his employees, who could see the mat from the cashier's desk, to look for and straighten out any wrinkles. Because the lights over the mat were not on, the area around the mat was dark, which prevented Whatley from discerning the danger.

This evidence precludes summary judgment in favor of Fuller. Floor mats "subject to periodic folding, bunching, rolling, and shifting" can constitute hazards for which landowners may be liable. Jet Food Stores v. Kicklighter, 226 Ga.App. 552, 487 S.E.2d 120 (1997). See Best v. Dublin Eye Assoc., P.C., 188 Ga.App. 225, 372 S.E.2d 495 (1988) (landlord liable for placement and maintenance of defective mat). Poor lighting along a path intended for use by invitees can make it difficult for an invitee to discern a hazard. Sykes, supra (nonworking light fixture prevented plaintiff from seeing sidewalk construction); Brennan v. The Freight Room, 226 Ga.App. 531, 487 S.E.2d 109 (1997) (poorly illuminated walkway prevented plaintiff from seeing curb and drop in elevation); Sacker v. Perry Realty Svcs., 217 Ga.App. 300, 457 S.E.2d 208 (1995) (poor lighting in parking lot prevented plaintiff from seeing out-of-place railroad tie).

" 'The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.' [Cit.]" Brennan, supra, 226 Ga.App. at 533(1), 487 S.E.2d 109. See Restatement (Second) of Torts, § 343 (1965). "The principle of equal or superior knowledge applies to static defective or dangerous conditions on property. [Cit.]" Jet Food Stores, supra, 226 Ga.App. at 553(1), 487 S.E.2d 120; Newell v. Great A & P Tea Co., 222 Ga.App. 884, 885(2), 476 S.E.2d 631 (1996). The defendant must show that no genuine issue of fact exists as to its lack of actual or constructive knowledge of the hazard. Hilsman v. Kroger Co., 187 Ga.App. 570, 571(2), 370 S.E.2d 755 (1988).

Fuller's liability could be based on constructive knowledge alone. Newell, supra 222 Ga.App. at 886, 476 S.E.2d 631. "Constructive knowledge may be established by showing either that: (1) an employee of the proprietor was in the immediate area of the hazard and had the means and opportunity to easily see and remove it; or (2) the proprietor failed to exercise reasonable care in inspecting the premises. [Cit.]" Id.

Fuller admitted the mat was visible to his employees at the cashier's desk. They were responsible not only for straightening it out when wrinkled, but also for activating the lights over the mat when it became dark.

There is also evidence of constructive knowledge under the reasonable inspection prong. To show the evidence precluded a finding of negligence, Fuller had to establish that he and his employees exercised reasonable care in inspecting the premises, such as by compliance with reasonable inspection procedures. Newell, supra, 222 Ga.App. at 886, 476 S.E.2d 631. But he testified that there was no regular inspection procedure other than employees generally inspecting the premises at shift changes every eight hours. Even these infrequent inspections followed no written checklist or guidelines, and there is no record kept of them. Fuller had no specific recollection of any inspection done on the day in question. Such evidence fails to require a conclusion of due negligence. See Newell, supra, 222 Ga.App. at 885-887(2), 476 S.E.2d 631 (no records of inspections and no recollection of inspections that day); Burke v. Bi-Lo, 212 Ga.App. 115, 117, 441 S.E.2d 429 (1994) (no recollection of inspections on evening in question); Boss v. Food Giant, 193 Ga.App. 434, 435-436, 388 S.E.2d 37 (1989) (no recollection of any inspection on day in question).

Fuller argues that because no one had fallen previously, he could have no actual or constructive knowledge of the danger. Yet he testified that he had instructed his employees to smooth out mat wrinkles, which they had done on occasion. We rejected this argument in Brennan. "The fact that there had been no prior incidents or complaints concerning the lighting does not absolve appellees of liability. An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises." (Citations and punctuation omitted.) Brennan, supra, 226 Ga.App. at 533(1), 487 S.E.2d 109. A prior fall is not a necessary precursor to knowledge that a wrinkled mat poses a hazard.

The question as to Whatley's knowledge is whether she knew of the mat's wrinkled condition, not merely the lighting. Id. She was a newcomer, the entrance was dark, and the wrinkles were obscured. See id. (change in elevation obscured due to poor...