Youngblood v. All American Quality Foods, Inc. , 338 Ga. App. 817 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
ANDREWS, P. J., and RAY, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 11, 2016
In the Court of Appeals of Georgia
A16A1063. YOUNGBLOOD v. ALL AMERICAN QUALITY
FOODS, INC.
ANDREWS, Presiding Judge.
Saundra Youngblood was injured when she slipped and fell in a puddle of
water on the floor of a grocery store owned and operated by All American Quality
Foods, Inc. d/b/a Food Depot. She sued Food Depot seeking recovery for her injuries
alleging that, in violation of the duty imposed under OCGA § 51-3-1, Food Depot
negligently failed to exercise ordinary care to keep the store premises safe for her as
an invited shopper. Youngblood appeals from the trial court’s grant of summary
judgment in favor of Food Depot. For the following reasons, we affirm.
Under OCGA § 51-3-1, where the owner or occupier of land invites the public
to enter the premises for a lawful purpose, “he is liable in damages to such persons
for injuries caused by his failure to exercise ordinary care in keeping the premises and
approaches safe.” “To recover on a theory of premises liability [under OCGA § 51-3-
1], a plaintiff must show injury caused by a hazard on . . . [the] premises or
approaches that the owner or occupier should have removed in the exercise of
ordinary care for the safety of the invited public.” American Multi-Cinema, Inc. v.
Brown, 285 Ga. 442, 444 (679 SE2d 25) (2009). The fundamental basis for imposing
this liability is proof that the premises owner had superior knowledge of the hazard
on the premises that caused harm to the invitee. Robinson v. Kroger, 268 Ga. 735,
736-738 (493 SE2d 403) (1997). “[I]t is . . . only when the [hazard] is known to the
owner or occupant and not known to the person injured that a recovery is permitted.”
Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980) (citation and
punctuation omitted). Accordingly, to recover under OCGA § 51-3-1, a plaintiff has
the burden of proving: (1) that, prior to the slip and fall, the owner had actual
knowledge of the hazard which caused the slip and fall, or that, under the
circumstances, the owner was chargeable with constructive knowledge of the hazard,
and (2) that, despite the exercise of ordinary care, the plaintiff lacked knowledge of
the hazard prior to the slip and fall. American Multi-Cinema, 285 Ga. at 444;
Robinson, 268 Ga. at 736; Alterman Foods, 246 Ga. at 622-623. A plaintiff can prove
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the owner’s constructive knowledge of the hazard by showing: (1) that an employee
of the owner was in the immediate area of the hazard and could have easily seen the
hazard and removed it prior to the slip and fall, or (2) that the hazard had existed on
the premises for a sufficient length of time that it should have been discovered and
removed if the owner had exercised ordinary care to inspect the premises to keep it
safe. Id. at 622-623; Banks v. Colonial Stores, Inc., 117 Ga. App. 581, 584-585 (161
SE2d 366) (1968). Under OCGA § 51-3-1, an owner “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,”
which includes . . . “inspecting the premises to discover possible dangerous
conditions of which the owner/occupier does not have actual knowledge. . . .”
Robinson, 268 Ga. at 740. In the absence of facts showing that the premises are
unusually dangerous, an owner has no duty to continuously patrol the premises to
discover and remove possible hazards. Alderman Foods, 246 Ga. at 622. It follows
that an owner normally “is permitted a reasonable time to exercise care in inspecting
the premises” (Id. at 622) and “a reasonable time after notice of a hazardous condition
to exercise care in correcting such condition.” Pickering Corp. v. Goodwin, 243 Ga.
App. 831, 832 (534 SE2d 518) (2000).
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The facts relevant to Youngblood’s claim under OCGA § 51-3-1 showed the
following: It is undisputed that, while shopping on the Food Depot store premises,
Youngblood stepped in a puddle of water on the floor in aisle 10 of the store (the
beverage aisle) and slipped and fell. Youngblood said she did not see the clear liquid
before she slipped and fell. The record shows that the water may have come from a
broken water bottle, but there is no evidence how the bottle was broken, or how the
water otherwise got on the floor. While Youngblood was somewhere on the store
premises, another store customer, who was checking out at the front of the store, told
the check-out cashier about a liquid spill in aisle 10 of the store. The cashier told the
check-out bagger, and the bagger then went to get a bucket and mop and a wet floor
sign and took those items to aisle 10 to put down the sign and clean up the spill. It is
unclear whether Youngblood slipped and fell in the spill before or after the cashier
was notified of the spill. In any event, when the bagger got to the spill with the clean-
up items, Youngblood had already slipped in the puddle and was lying on the floor.
Youngblood confirmed that she slipped and fell before a store employee arrived and
found her on the floor, and she could not say how long she had been on the floor
before a store employee arrived. There was no evidence that the cashier, after being
notified of the spill, delayed telling the bagger about the spill, and no evidence that
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the bagger delayed getting the clean-up items and going to the spill. Other evidence
showed that Food Depot had an inspection policy in place that was performed at the
store on the day of the slip and fall; that pursuant to this policy, aisle 10 was
inspected about 20 minutes before the slip and fall; and the inspection showed no
spill or other hazard in the aisle at that time. There was no evidence that any store
employee was in the immediate area of the water spill at issue who could have easily
seen the hazard and removed it prior to the slip and fall. There was no evidence of
any unusually dangerous condition on the store premises requiring more frequent or
continuous inspections to discover and remove recurring hazards. In fact, there was
no evidence of any other slip and fall at the store other than the present incident.
On these facts, Food Depot moved for summary judgment pursuant to OCGA
§ 9-11-56.
To prevail on a motion for summary judgment [under OCGA § 9-11-56],
the moving party must demonstrate that there is no genuine issue of
material fact and that the undisputed facts, viewed in the light most
favorable to the nonmoving party, warrant judgment as a matter of law.
The moving party may carry this burden either by (1) presenting
evidence negating an essential element of the nonmoving party’s claim,
i.e., affirmatively disproving the element with evidence which makes it
impossible for the nonmoving party to prove the element at trial; or (2)
demonstrating an absence of evidence to support an essential element of
the nonmoving party’s claim. If the moving party discharges this burden,
the nonmoving party cannot rest on its pleadings, but rather must point
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to specific evidence giving rise to a triable issue. On appeal, we review
de novo the trial court’s ruling on a motion for summary judgment,
construing all facts and reasonable inferences therefrom in the light most
favorable to the nonmovant.
Parks v. Multimedia Technologies, Inc., 239 Ga. App. 282, 286-287 (520 SE2d 517)
(1999) (citations and punctuation omitted) ; Lau’s Corp. v. Haskins, 261 Ga. 491, 495
(405 SE2d 474) (1991).
Applying these principles, the record supports the trial court’s grant of
summary judgment in favor of Food Depot. The parties do not dispute that a factual
issue exists as to whether Youngblood (in the exercise of ordinary care for her own
safety) should have discovered and avoided the spilled water on the floor. See
Robinson, 268 Ga. at 741-743. Rather, the trial court granted Food Depot’s motion
for summary judgment by finding: (1) that there was no evidence showing Food
Depot had constructive knowledge of the hazardous spill prior to Youngblood’s slip
and fall; and (2) that, even construing the record to show that Food Depot acquired
actual knowledge of the spill (when the cashier was told about the spill) prior to
Youngblood’s slip and fall, there was no evidence that, after the cashier was told
about the spill, Food Depot failed to exercise ordinary care to attempt to remove the
spill before Youngblood slipped and fell.
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As to the trial court’s finding that no evidence showed constructive knowledge,
this was supported: (1) by the absence of any evidence that a Food Depot employee
was in the immediate area of the spill who could have easily seen the hazard and
removed it prior to the slip and fall (Alderman Foods, 246 Ga. at 622-623), and (2)
by evidence that Food Depot performed an inspection procedure prior to the slip and
fall that was adequate, as a matter of law, to show the exercise of ordinary care to
keep the premises safe under OCGA § 51-3-1. Evidence showed that Food Depot
inspected the area of the store where Youngblood slipped and fell about 20 minutes
prior to the slip and fall, and that, at that time, no spill or other hazard was present.
Where the owner performs an inspection showing that no hazard existed in an area
within a brief period prior to an invitee’s injury as a result of a hazard occurring in
the same area, this is sufficient to establish, as a matter of law, that the owner
exercised ordinary care under OCGA § 51-3-1 to inspect the premises to keep it safe,
and to show that the owner had no constructive knowledge of the hazard. Matthews
v. The Varsity, Inc., 248 Ga. App. 512, 514 (546 SE2d 878) (2001) (inspection 20
minutes prior to incident found adequate as matter of law).
The trial court also correctly found that, even if Food Depot acquired actual
knowledge of the spill just prior to Youngblood’s slip and fall, the present facts show
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as a matter of law that, after acquiring this knowledge, Food Depot exercised ordinary
care to attempt to remove the hazard prior to the slip and fall. The evidence showed
that, while Youngblood was on the store premises, Food Depot acquired actual
knowledge of the spill at issue when another store customer told a check-out cashier
about the spill. Construing the evidence in favor of Youngblood to show that she
slipped and fell after the cashier was told about the spill, there is no evidence that
Food Depot failed to exercise ordinary care after acquiring actual knowledge. An
owner with knowledge of a hazard superior to that of an invitee is not an insurer of
the invitee’s safety, but has a duty under OCGA § 51-3-1 to exercise ordinary care to
protect the invitee from the hazard. Robinson, 268 Ga. at 740. An owner is normally
permitted “a reasonable time after notice of a hazardous condition to exercise care in
correcting such condition.” Pickering Corp., 243 Ga. App. at 832.
Exactly what constitutes “ordinary care” varies with the circumstances
and the magnitude of the danger to be guarded against. Since it is
impossible to prescribe definite rules in advance for every combination
of circumstances which may arise, the details of the standard must be
filled in each particular case. But, to be negligent, the conduct must be
unreasonable in light of the recognizable risk of harm. The particular
standard of care to be applied and whether the owner breached that
standard are usually issues to be decided by a jury. However, these
issues may be decided by the court in plain and palpable cases where
reasonable minds cannot differ as to the conclusion to be reached.
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Lau’s Corp., 261 Ga. at 493 (citations and punctuation omitted). The trial court
correctly found that this was such a plain and palpable case. After being given notice
of the spill, Food Depot exercised ordinary care and acted within a reasonable time
when the store cashier dispatched the bagger to clean up the spill, the bagger obtained
items to remove the spill, went to the location of the spill, and discovered that
Youngblood’s slip and fall had already occurred. There was no evidence showing
how long Youngblood had been on the floor before the bagger arrived, and no
evidence that, after being notified of the spill, the cashier or the bagger delayed their
response to remove the spill.
Youngblood points to evidence that Food Depot trained its employees to
respond to spills discovered on the floor by having one employee stand over the spill
while a coworker brings a mop and bucket. Youngblood claims that the failure of the
Food Depot employees to adhere to this training in the present case created a factual
issue as to whether Food Depot exercised ordinary care in responding after receiving
notice of the spill. We find no merit to this claim. Even if adherence to this training
might have reduced the chance of Youngblood’s slip and fall – a matter of pure
speculation – this does not change the fact that, under the circumstances, Food Depot
responded within a reasonable time and exercised ordinary care after receiving notice
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of the spill. To the extent Food Depot policies or training regarding spills established
a standard of care in excess of the standard of ordinary care applicable under the
circumstances, the trial court correctly refused to hold Food Depot to the heightened
standard. Although a company’s private policy may be admissible for the purpose of
illustrating negligence (or lack thereof) under circumstances to which the policy
would be applicable, the policy does not establish the governing standard of care.
Foster v. Southern R. Co., 42 Ga. App. 830, 832 (157 SE 371) (1931); Southern R.
Co. v. Allen, 88 Ga. App. 435, 449-450 (77 SE2d 277) (1953); Evershine Products,
Inc. v. Schmitt, 130 Ga. App. 34, 38 (202 SE2d 228) (1973).
The trial court correctly concluded there was no basis to impose liability under
OCGA § 51-3-1 and that Food Depot was entitled to summary judgment.
Judgment affirmed. Doyle, C. J., concurs. Ray, J., concurs in judgment only.
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