Hornbuckle Wholesale Florist of MacOn, Inc. v. Castellaw , 223 Ga. App. 198 ( 1996 )

Ruffin, Judge.

This is a foreign substance slip and fall case. Eleanor Castellaw was shopping in a retail store operated by Hornbuckle Wholesale Florist of Macon, Inc. (“Hornbuckle”) when she slipped and fell on what she claimed was a box top. Hornbuckle appeals the trial court’s order denying its motion for summary judgment. We reverse.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows the following: Castellaw went to Hornbuckle, a florist store, to purchase some brass containers. As a regular customer, she knew where the brass containers were displayed and proceeded directly to that aisle. On this occasion, she noticed that cardboard boxes were stacked in a row on the left side of the aisle. The floor was made of concrete, and Castellaw did not notice any hazard on the floor as she walked down the aisle to the brass containers.

Ella Crawford, the store, employee who assisted Castellaw with her selections, retrieved some brass containers from a storage area and placed them on top of some of the stacked boxes for Castellaw to inspect. As she considered the various containers, Castellaw removed her jacket, walked about ten feet down the aisle past the stacked boxes and placed her jacket on top of a box. She admits nothing prevented her from noticing objects on the floor. As she started to return to the containers, Castellaw slipped and fell on what she claimed was a box top. She had not noticed the box top on the floor and stated by affidavit that the top was not noticeable because it was small and camouflaged by the color and surrounding boxes and flooring. However, Castellaw admitted in her deposition that she could tell the difference between the texture of the floor and the texture of the cardboard boxes and that if she had looked down, she certainly could tell the difference between the concrete floor and the. cardboard boxes. Castellaw suggests that the box top apparently protruded a few inches from a gap between the row of boxes. Castellaw was unaware of Crawford’s whereabouts when she fell, but claimed that Crawford assisted her and retrieved the box top.

Crawford testified she never saw a box top on the floor in the area where Castellaw fell. She further testified that she was responsible for sweeping the floor and maintaining a lookout for foreign substances on the floor. According to Crawford, she had inspected the aisle where Castellaw fell only five to ten minutes before Castellaw entered the store, and no box top or other foreign object was on the floor at that time.

It is axiomatic that the liability for a slip and fall depends upon the superior knowledge of the defendant. 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 had no knowledge of it or was prevented from discovering it for some reason attributable to the defendant. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). "[I]f [Castellaw] is unable to prove either element of the Alterman test, a failure of proof results. [Cit.]” Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994). Castellaw has presented no evidence contradicting Hornbuckle’s evidence that it had no actual knowledge of the existence of the box top on its floor. Thus, the issue presented in this case is whether Hornbuckle had constructive knowledge of the allegedly hazardous condition.

Constructive knowledge can be established with evidence that either Hornbuckle failed to exercise reasonable care in inspecting its premises or an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. Drake v. Kroger Co., 213 Ga. App. 72, 73 (1) (443 SE2d 698) (1994). In this case, Castellaw cannot establish that Hornbuckle failed to exercise reasonable care in inspecting the area because the evidence showed that Hornbuckle inspected the floor approximately five to ten minutes prior to Castellaw entering the store. Id. See also Butler v. Lanier Park Regional Hosp., 220 Ga. App. 386 (469 SE2d 475) (1996). In addition, Castellaw failed to show constructive knowledge based on a negligent inspection of the premises because there was no evidence regarding the length of time the foreign object, if any, was permitted to remain on the floor. See Ballard v. Southern Regional Med. Center, 216 Ga. App. 96 (1) (453 SE2d 123) (1995). "To sustain [a] cause of action under this first kind of case it is necessary that [Castellaw] prove a period of time the dangerous condition ha[d] been allowed to exist. Without such proof it would not be possible to determine whether [Hornbuckle] had been afforded a reasonable time within which to inspect and remove the hazard.” (Citation and punctuation omitted.) Drake, supra at 73.

Nor does the evidence support the theory that a Hornbuckle employee was in the immediate vicinity of the fall and could easily have noticed the box top and removed it. Castellaw has presented no evidence to show that a Hornbuckle employee was in a position to see or remove the box top from the floor. According to Crawford, she swept the area of the fall approximately five to ten minutes before Castellaw entered the store, and she did not see any box top before the fall. Moreover, accepting Castellaw’s testimony that the box top was not noticeable because of its size, location and color, it must logically follow that a Hornbuckle employee could not have easily discovered the “hazard” and removed it. Butler, supra; Drake, supra. There is no evidence in the record that a Hornbuckle employee could have easily noticed the box top and removed it since Castellaw testified it was hidden from sight.

Contrary to Castellaw’s argument, the distraction theory does not preclude summary judgment in this case. The distraction theory applies to the second prong of the Alterman test to prevent summary judgment to a defendant when a plaintiff could have easily seen the hazard yet failed to exercise ordinary care for her own safety. Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994). It does not apply to the first prong of the Alterman test, where the issue is the proprietor’s knowledge of the existence of the allegedly hazardous condition. Likewise, any discrepancies between the testimony of Crawford and Castellaw do not preclude summary judgment in this case since these alleged discrepancies do not create “material” issues of fact. OCGA § 9-11-56. Whether the box top was on the floor after the fall and whether Castellaw actually purchased brass containers after the fall do not alter the fact that Hornbuckle had no actual or constructive knowledge of the box top before Castellaw’s fall. .

Since Castellaw failed to present evidence of the first prong of the Alterman test, showing Hornbuckle had actual or constructive knowledge of the allegedly hazardous condition, the trial court erred in failing to grant summary judgment to Hornbuckle.

Judgment reversed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Smith, JJ, concur. McMurray, P. J., dissents.