Torts - Deron R. Hicks and Mitchell M. Mckinney

• Publication year: 1999

Tortsby Deron R. Hicks^* and

Mitchell M. McKinney^**

I. Premises Liability

A. Slip-and-Fall

Notwithstanding the Georgia Supreme Court's attempt to resolve the lingering debate over Georgia's slip-and-fall jurisprudence in its 1997 decision in Robinson v. Kroger Co.,¹ the decision, in fact, merely altered the terms of that debate. While the court dealt swiftly with the rigid application of its prior decision in Alterman Foods v. Ligon,² the decision raised troubling new questions about the proper roles of the court and jury in resolving future cases. The two decisions included in this Article reflect how the Georgia Court of Appeals has struggled to apply Robinson's new standard.

In Laffbday v. Winn Dixie Atlanta, Inc. ,³ the court of appeals reversed the trial court's grant of summary judgment in favor of defendant in a slip-and-fall action.⁴ Plaintiff, who was a representative of a greeting card company, maintained the greeting card section of defendant's grocery store for over a year. Prior to the incident that led to her civil action, plaintiff visited the particular grocery store at issue approximate- ly twice a week. Plaintiff's duties required her to walk through the produce preparation area, located behind double doors in the rear of the store, to access a storage area. On the day of the incident, plaintiff fell in the produce preparation area after receiving a page from the store's manager. According to plaintiff's testimony, she was looking at the door at the time she fell.⁵ Plaintiff further testified that she knew she had "slipped on water because her clothing was wet after her fall and she saw water on the floor."⁶ However, plaintiff admitted that the produce department manager had warned her to be careful about water in the produce area.⁷ Plaintiff also testified that "she 'was aware that this area could collect water'" and "that she knew frozen produce was prepped in this area and that water could leak from those items."⁸ According to plaintiff, although she knew that there was water in the produce preparation area on the day of the incident, she "denied that before her fall, she was actually aware of the particular water which caused her to slip."⁹

The produce department manager testified that shortly before the accident he was aware of a puddle of water in the general area where plaintiff fell. The department manager instructed employees to clean up the puddle; however, the manager testified that moisture was still evident on the floor after it was dry-mopped, "that it was a 'little bit' wet, and that the linoleum floor was going to be 'a little bit slick' after it had been dry-mopped because the floor could not be completely dried."¹⁰ The trial court granted defendant's motion for summary judgment on the basis that plaintiff'"had equal or greater knowledge of the specific hazard which resulted in her fall.'"¹¹

On appeal the court of appeals noted that although the trial court's decision had been rendered prior to the supreme court's decision in Robinson v. Kroger Co.,¹² the appellate court was bound to apply Robinson to the facts of the case.¹³ Quoting from the decision in Robinson, the court of appeals noted:

"[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." Thus, the true ground of liability in a slip-and-fall action remains the owner/occupier's superior knowledge of the hazard.¹⁴

The court of appeals reversed the trial court's decision on the basis that defendant had superior knowledge of the particular hazard which gave rise to the dangerous condition.¹⁵ The court noted that "[a]l-though she knew that water was present on the floor of the produce preparation area before her fall, there [was] no evidence that [plaintiff] actually knew about the particular wetness which caused her to fall."¹⁶ In reaching its decision, the court of appeals noted the supreme court's admonition in Robinson

"that an invitee's failure to exercise ordinary care is not established as a matter of law by the invitee's admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which lead to his downfall."¹⁷

The decision in Laffoday, however, appears to take this proposition a step further. Significantly, plaintiff in Laffoday knew that the produce preparation area was wet, was aware that the area accumulated water, and had been warned prior to her fall to be careful about water in the area.¹⁸ Nonetheless, the court of appeals reversed the trial court's decision because plaintiff lacked knowledge of the specific area of wetness upon which she fell in the produce preparation area.¹⁹ That is, reviewing the facts in a light most favorable to plaintiff, plaintiff's knowledge of the general hazardous condition of the area where she fell did not constitute knowledge equal to that of defendant, who may have had knowledge of the specific hazard in the produce preparation area where plaintiff slipped.²⁰

In reaching its decision, the court of appeals also quoted from the portion of the decision in Robinson that suggested that a plaintiff may present evidence of the exercise of reasonable care by setting forth evidence that the plaintiff was distracted by '"something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive qualit[ies]."'²¹ In this respect the court appears to suggest that because the page by the grocery store manager "startled" plaintiff, it constituted "some evidence of the exercise of reasonable care" in that the grocery store manager "knew or should have known of its distractive quality."²² This particular aspect of the court of appeals decision is troubling. There is little doubt that when a person is paged over an intercom system at a grocery store, department store, or other public forum, it is almost certain to be a startling or unexpected event; however, intercom systems often provide a valuable public service. To suggest that the use of an intercom system is of such a distractive quality as to negate the failure of plaintiffs to exercise reasonable care for their own safety is unsettling.

Perhaps more unsettling, however, is the court's holding that summary judgment in favor of a proprietor would not be appropriate even when the invitee has been warned of a generally dangerous condition and has admitted knowledge of that condition.²³ Exactly how far this concept should extend is uncertain. Would a "Caution: Wet Floor" sign have been sufficient to shift the burden to plaintiff to exercise care for her own safety? Perhaps not, particularly in a situation in which the plaintiff has already admitted knowledge of a dangerous condition in the general area. To this end, the court's decision in Laffoday suggests an unreasonable burden that few, if any, proprietors could satisfy.

In contrast to the decision in Laffoday, the Georgia Court of Appeals in Lovins v. Kroger Co.²⁴ affirmed the grant of summary judgment to defendant grocery store on the basis that plaintiff failed to establish defendant had actual or constructive knowledge of the foreign substance that caused plaintiff to slip and fall.²⁵ In Lovins an employee of the grocery store had placed spinach dip and crackers on a table outside the delicatessen for customers to sample.²⁶ After setting up the sample display, the employee "inspected the floor in the area, saw that it was clean, and went behind the nearby counter to prepare a cheese basket."²⁷ Within ten minutes plaintiff slipped on spinach dip and fell. The trial court granted the motion for summary judgment filed by defendant on the basis that there was no evidence that defendant had actual or constructive knowledge that the foreign substance was on the floor.²⁸

In affirming the trial court's grant of summary judgment, the court of appeals held there was no evidence that defendant had actual or constructive knowledge of the foreign substance.²⁹ As in Laffoday, the court first noted that for a plaintiff to recover in a slip-and-fall action, the plaintiff "must prove (1) that the defendant had actual or constructive knowledge of the [foreign substance], and (2) that the plaintiff lacked knowledge of the [foreign substance] despite the exercise of reasonable care."³⁰ The court held that there was no evidence of any actual knowledge on the part of defendant or its employees of the foreign substance on the floor.³¹ Plaintiff, however, suggested that actual knowledge could "be inferred from the employee's testimony that she did not see any customers passing through the area or sampling the dip between the time she set out the dip and the time [plaintiff] fell."³² Therefore, according to plaintiff, because there was no evidence that other customers had dropped the dip, then the dip must have been dropped by the employee.³³ However, the court of appeals noted that the reason the employee did not see any customers in the area was because, according to her testimony, she had her back turned to the display.³⁴ Accordingly, because the court determined that the evidence presented as to actual knowledge was "too uncertain or speculative," it refused to infer from such evidence the existence of actual knowledge on the part of defendant.³⁵

The court then noted that constructive knowledge could be established in either of the following ways:

(i) by presenting evidence that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard; or (ii) by presenting evidence that the substance was on the floor for such a time that (a) it would have been discovered had...