Van Dyke v. Emro Marketing Co. ( 1993 )

Pope, Chief Judge.

Plaintiff/appellant Thomas Van Dyke slipped and fell in a puddle containing a mixture of kerosene and water at a Starvin Marvin convenience store owned by defendant/appellee. Plaintiff appeals from the trial court’s grant of summary judgment in favor of defendant. Plaintiff argues that the trial court erred in granting summary judgment to the defendant because his knowledge of the hazard causing his fall was not equal or superior to defendant’s knowledge. We agree.

This case is controlled by our decision in Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991). In Flood, as here, the plaintiff slipped and fell at a self-service pump located at a convenience store operated by the defendant. The plaintiffs in both cases observed an “oily” spot and later slipped and fell. In Flood, the defendant had constructive knowledge that diesel fuel was on the pavement because defendant had knowledge that one of the pumps would leak diesel fuel occasionally. We held “[a] jury could conclude that the alleged hazard from a leaking diesel fuel pump on wet pavement was greater than the general hazard perceived by plaintiff.” Id. at 452.

In this case the defendant had actual knowledge of the hazard causing plaintiff’s fall. The evidence in this case demands a finding that defendant had superior knowledge of the hazard in question. Plaintiff testified that when he reported his fall to the attendant on duty, she told him, “I thought somebody was going to fall out there, because I saw the man when he did it and he was filling up his kerosene jug and spilled it down where the water hose was, and those two mixtures is some kind of combination, its just like wet ice.” Plaintiff further testified the attendant told him she did not have time to remove the hazardous mixture. Defendant did not refute plaintiff’s testimony in this regard.

Although plaintiff had some knowledge of the hazard causing his fall, his knowledge was not equal to or greater than defendant’s. He testified that he first saw the wet spot before he went inside the store to pay for his gas and fell after he returned to the pump. He described the spot as being darker than it would be if it were just water and looking “oily.” Although plaintiff may have suspected the substance which appeared oily was kerosene because it was floating on top of water in the area where he fell, he did not know the substance was kerosene, as defendant did, until he fell and got kerosene on his shirt. Also, there is no evidence that plaintiff knew the combination of water and kerosene was extremely slippery, as defendant knew.

Judgment reversed.

McMurray, P. J., concurs and also concurs specially. Beasley, P. J., and Cooper, J., concur. Blackburn, J., concurs specially. Birdsong, P. J., Andrews, Johnson and Smith, JJ., dissent.