Kelley v. Piggly Wiggly Southern, Inc. , 230 Ga. App. 508 ( 1997 )

Beasley, Judge.

Mary Kelley appeals from the grant of summary judgment to all defendants in her action against Piggly Wiggly Southern, Inc., Clean-Serve, Inc., and Donna Sendra d/b/a Universal Cleaning Service. She alleged she slipped and fell in a puddle of water or other clear liquid in Piggly Wiggly’s store and that Clean-Serve or Universal had applied the liquid to the floor.

The evidence favorable to Kelley shows she went to Piggly Wiggly’s store between 6:00 and 6:30 in the morning to purchase groceries. As she pushed her shopping cart towards the produce department, she slipped in a puddle of liquid and fell. Kelley described the liquid as invisible from a standing position even after she arose from her fall, although she could see the liquid when she was lying on the floor. After she fell, she noticed a floor cleaning machine two or three aisles away. Kelley acknowledged she did not know whether the liquid in which she fell came from the machine or how long the liquid had been on the floor.

Universal, which subcontracted for the cleaning from Clean-Serve, used a push machine to wash the floor each night. The process started between about 11:00 p.m. and midnight, and it took three or four hours. The worker has to sweep the store, mop it with the machine, then mop it by hand to get up any water the machine left, and finally, buff the floor. The machine, furnished by Piggly Wiggly, is generally left in a room at the back of the store, but on the morning of Kelley’s fall the machine was left out on an aisle and some dirty water had puddled under it.

In the cleaning process, the machine squirts out water to cover about a four- to five-foot area. It has a vacuum to retrieve the water but sometimes leaves up to a foot of water behind. Both water and cleaning agent are put into the machine at the top. The record does not show that the cleaning agent colors the water or materially alters its consistency.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the respondent, concludes that the evidence does not create a triable issue as to an essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On a motion for summary judgment under OCGA § 9-11-56, the defendant, as the moving party, may only prevail either by piercing the plaintiff’s pleadings or by presenting evidence which establishes a prima facie affirmative defense. Id. A defendant who will not have the burden of proof at trial may pierce the plaintiff’s pleadings by either: (1) presenting evidence which negates an essential element of the plaintiff’s claims, or (2) showing “an absence of evidence to support the [plaintiffs] case” as to any essential element. Id. at 491; Caven v. Warehouse Home Furnishings Distrib., 209 Ga. App. 706 (434 SE2d 532) (1993).

“[T]he ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997).

1. The trial court erred in granting summary judgment to Clean-Serve and Sendra because Kelley presented circumstantial evidence of a connection between these appellees and the liquid in which she fell. She must of course show that a defendant’s negligence caused her injuries.

The duty imposed upon an owner or occupier of land by OCGA § 51-3-1 is inapplicable to Clean-Serve and Sendra because they are independent contractors, not owners or occupiers of the premises. Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744-745 (2) (470 SE2d 270) (1996). But, the cleaners had the duty to use ordinary care in their floor cleaning and cleanup assignment. Bell & Son v. Kidd & Roberts, 5 Ga. App. 518, 520 (63 SE 607) (1909) (a contractor may be hable to third parties for negligent performance of the contract work); Guthrie v. Robbins Home Improvement Co., 95 Ga. App. 882, 884 (2) (b) (99 SE2d 319) (1957) (contractor owes duty to invitee on premises).

Since the machine starts out with liquid cleaner and water that is squirted out, the fact that Kelley saw the machine in dirty water left by its brushes does not destroy the inference that the machine was the source of the water she slipped on after the machine was used on the floor throughout the store. Neither does the testimony that a cleaning substance was added to the water. A jury could reasonably infer that this puddle remained during the cleaning process and was not mopped up afterwards. Considering the time of day and the description of the substance, a jury could reasonably infer that the substance was not one which a customer spilled but rather was left by the cleaning person.

2. With regard to Piggly Wiggly, “in 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. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson, supra at 748-749. Here, the inquiry under the first prong is limited to whether Piggly Wiggly had constructive knowledge of the liquid on the floor, because there was no evidence Piggly Wiggly had actual knowledge of it.¹

Constructive knowledge can be established in one of two ways: by evidence that employees were in the immediate vicinity and easily could have noticed and removed the hazard, or by evidence that the substance had been on the floor for such a time that it would have been discovered had the proprietor exercised reasonable care in inspecting its premises. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980), modified on other grounds, Robinson, supra. The first basis for constructive knowledge is foreclosed by Kelley’s testimony that she did not see any employees in the vicinity of her fall. Although Kelley’s later affidavit stated there were employees “a reasonable distance” from the site of her fall, this contradicts her deposition testimony that she arose after her fall and looked for employees in the area but saw none. The unexplained discrepancy is construed against her under the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

To support the second basis for constructive knowledge, that the owner failed to exercise reasonable care in inspecting the premises, “the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. [Cit.] ‘The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case (the nature of the business, size of the store, the number of customers, the nature of the dangerous condition and the store’s location).’ [Cit.]” (Punctuation omitted.) Alterman Foods, 246 Ga. at 623.

No one from the store inspected after the cleaning on this particular morning to assure that the cleaner had completed the job properly and left no water behind. In fact, the machine was left out, in the way of customers, with dirty water seeping onto the floor. There is no evidence of any inspection at all that night or early morning before Kelley’s fall for water or anything else which might be a hazard to patrons. Although Kelley did not see the liquid before she fell, a person inspecting the floor after the cleaner completed the job would have been looking for just such a substance. It cannot be assumed that if the patron did not see it before falling, neither would an inspector.

“The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. (Cit.) This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” Robinson, supra at 740.

The proprietor has not pierced the pleading by showing it fulfilled the duty imposed by OCGA § 51-3-1. Nor has it rebutted the inference that the water came from the cleaning process that was supposed to end about three hours earlier. Piggly Wiggly has not rebutted this evidence by showing a reasonable inspection and cleaning procedure.

This case differs from Blake v. Kroger Co., 224 Ga. App. 140 (480 SE2d 199) (1996), because it is reasonably inferable that the water came from the cleaning machine, that it was not mopped up by the person who used the machine, and that the proprietor did not inspect for water left by the machine during the several hours between the time the cleaner left and plaintiff fell, despite knowledge that the process took large quantities of water and sometimes left some behind.

Judgment reversed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur. Smith and Eldridge, JJ., concur specially. Andrews, C. J., and Birdsong, P. J., dissent.

1 Kelley contends for the first time on appeal that Piggly Wiggly had actual knowledge of the liquid. We will not consider arguments belatedly raised. Clark v. Chick-Fil-A, 214 Ga. App. 758, 759 (1) (449 SE2d 313) (1994). Moreover, there is no evidence of actual knowledge on the part of Piggly Wiggly, and Kelley’s citation to the record does not support this contention.