Robinson v. Kroger: a Leveling of the Field or Fatal Fall for Summary Judgment? - Morgan W. Shelton

• Jurisdiction: Georgia,United States
• Publication year: 1999
• Citation: Vol. 50 No. 2

Robinson v. Kroger: A Leveling of the Fieldor Fatal Fall for Summary Judgment?

In Robinson v. Kroger,¹ the Supreme Court of Georgia reaffirmed that an invitee can recover in a slip-and-fall action when (1) the owner/occupier had actual or constructive knowledge of the hazard; and (2) plaintiff lacked knowledge of the hazard despite the exercise of ordinary care. However, in a drastic departure from existing case law, the court held that the evidentiary burden regarding plaintiff's knowledge of the hazard and exercise of reasonable care does not shift, for the purpose of summary judgment, until the defendant establishes negligence on the part of the plaintiff.²

I. Factual Background

Henrietta Robinson injured her knee when she slipped and fell on a green substance while walking through the produce section of a store owned by the Kroger Company. The green substance that caused Robinson's slip and fall was on the floor between two produce bins. Robinson claimed that the overhang of the produce bin obstructed her view of the floor, and, therefore, she could not see the substance that caused her fall. Based on this, Robinson brought a negligence action against Kroger to recover for injuries caused by her fall.³

The trial court granted summary judgment in favor of Kroger based on Robinson's failure to exercise ordinary care for her own safety.⁴ The court of appeals affirmed and agreed that Robinson had failed to exercise ordinary care by neglecting to use her senses, namely her eyesight, to avoid the hazard on the floor.⁵ The Supreme Court of Georgia granted certiorari to determine "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."⁶

The supreme court reversed and held that (1) an invitee's failure to exercise reasonable care is not established as a matter of law by her failure to look at the area where she is walking; and (2) an invitee has presented some evidence of the exercise of reasonable care when she establishes that something in the control of the owner/occupier, of which the owner or occupier knew or should have known, caused the invitee to be distracted; and (3) that the plaintiff does not shoulder the evidentiary burden to disprove negligence in a slip-and-fall case until the defendant has produced some evidence that the plaintiff failed to exercise ordinary care.⁷

II. Legal Background

In Alterman Foods v. Ligon,⁸ the Supreme Court of Georgia addressed the state of slip-and-fall law in Georgia in an attempt to curb the trend of "drift[ing] toward a jury issue in every . . . case."⁹ Plaintiff in Alterman Foods slipped on defendant's floor while shopping on a rainy day. Defendant introduced testimony establishing that no foreign substance was on the floor where plaintiff had fallen, and further, that the floors were cleaned weekly with a nonslip wax.¹⁰ The court of appeals reversed the trial court's grant of summary judgment in favor of defendant on the grounds that a material question of fact existed on whether an unreasonable danger was presented by the slippery floor.¹¹

In reversing the appellate court's decision, the supreme court reiterated many basic tenets of premises liability law, including the statutory principle¹² that an owner or occupier of land must exercise ordinary care to keep the premises safe.¹³ The court, recognizing that knowledge is the main basis for an owner/occupier's liability, stated that recovery may be had in a slip-and-fall case "only when the perilous instrumentality is known to the owner or occupant and not known to the person injured . . . ,"¹⁴ In addition, the court noted that an invitee must exercise ordinary care to avoid hazards, and in doing so, the invitee must utilize all senses in a reasonable manner to discover and avoid hazards.¹⁵

The court concluded that in order "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."¹⁶ Because plaintiff in Alterman Foods failed to establish that defendant had negligently maintained the premises, the appellate court's reversal of summary judgment in favor of defendant was in error.¹⁷

This new standard proved to be owner/occupier friendly because it provided defendants with two prongs through which a plaintiff's claim could be defeated at summary judgment: The defendant may defeat the plaintiff's claim by either (1) establishing that the defendant lacked actual or constructive knowledge of the hazard, or (2) proving either the plaintiff had actual knowledge of the hazard that was at least equal or superior to that of the defendant, or that the plaintiff should have had knowledge in the exercise of ordinary care.¹⁸ If the plaintiff failed to carry either of the two burdens, summary judgment in favor of the defendant was proper.¹⁹

Initially, the majority of cases decided pursuant to Alterman Foods were disposed of by summary judgment based on the first prong of the test, namely the owner/occupier's lack of actual or constructive knowledge regarding the hazard.²⁰ In a few cases, the court analyzed the second prong, and determined summary judgment was appropriate because the invitee admitted he had knowledge of the danger and had voluntarily encountered it.²¹

The Georgia Court of Appeals decision in Smith v. Wal-Mart Stores²² dramatically shifted the emphasis from obtaining summary judgment based on the first prong of the Alterman Foods test to the second prong, an invitee's failure to use ordinary care for his personal safety. In Wal-Mart plaintiff slipped on a clear substance while shopping in defendant's store. Plaintiff testified that if she had been looking down she would have seen the substance on the floor. In addition, plaintiff's shopping companion testified that she saw the substance.²³

In affirming the trial court's grant of summary judgment in favor of defendant, the court of appeals determined that plaintiff failed to exercise ordinary care for her own safety as a matter of law.²⁴ Plaintiff's admission that she would have seen the hazard if she had been looking at the floor where it was located established that her knowledge of the danger was at least equal to defendant's knowledge of the danger, and therefore, summary judgment in favor of defendant was proper under the second prong of the test established in Alterman Foods.²⁵

The holding in Wal-Mart broadened the second prong of the Alterman Foods test to such a degree that it created an almost insurmountable obstacle for a plaintiff to overcome to avoid summary judgment. The holding imputed knowledge to the invitee because she would have seen the hazard if she had been looking where she placed her foot. In Colevins v. Federated Department Stores,²⁶ the court took the holding from Wal-Mart to the extreme and held that an invitee had failed to exercise ordinary care even though the invitee testified he would not have seen the hazard even if he had been looking directly at the area where it was located.

The already formidable burden placed on slip-and-fall plaintiffs was worsened by the Supreme Court of Georgia's holding in Lau's Corp. v. Haskins.²⁷ According to the court, ". . . the burden on the moving party may be discharged by pointing out by reference to the . . . record that there is an absence of evidence to support the nonmoving party's case."²⁸ This placed the slip-and-fall plaintiff in the position of not only having to establish the defendant's knowledge of the foreign substance to avoid summary judgment, but also to prove that the plaintiff had exercised reasonable care for her own safety.

The triple threat posed by the test in Alterman Foods as well as the holdings in Wal-Mart and Lau's Corp. created a legal obstacle that few plaintiffs could overcome. The Georgia Supreme Court addressed slip-and-fall law in Alterman Foods specifically because these type of cases were being overly litigated and too many were going before a jury. Since Alterman Foods, and even more so since Wal-Mart and Lau's Corp., the pendulum had swung to the other extreme with few slip-and-fall cases making it past the summary judgment stage. By holding that an invitee failed to exercise ordinary care when she should have seen a hazard, the courts were in effect circumventing the superior knowledge requirement and determining an invitee had acted negligently, an inherently factual determination, as a matter of law. In addition, the slip-and-fall plaintiffs not only had to establish that the owner/occupier had knowledge of the hazard to avoid summary judgment, but the plaintiffs...