J. H. Harvey Co. v. Edwards , 219 Ga. App. 697 ( 1995 )

Blackburn, Judge.

Upon the grant of its application for discretionary appeal, J. H. Harvey Company appeals the trial court’s order denying its motion for summary judgment in the underlying slip and fall action.

While shopping for groceries, Alverna Edwards slipped and fell when she stepped on some green beans on the floor of a grocery store operated by J. H. Harvey Company (the store). Edwards and her husband¹ sued the store for injuries she sustained in the fall claiming that the green beans on the floor were a hazardous condition which the store negligently allowed to exist, and that her injuries resulting from the fall were proximately caused by the store’s failure to keep the premises safe.

Edwards testified at her deposition that she entered the store, got a shopping cart, picked up several items at the front of the store, and pushed the cart down the produce aisle up to a display of green beans on a table in the aisle. She testified that she saw a store employee standing there displaying or working with the beans. Edwards further testified that she does not look at the floor when she is using a shopping cart, but that if she had looked at the floor she could have seen the beans. Edwards was also asked by defense counsel during her deposition if she was distracted by anything in the produce section. She replied: “No; except the beans. I was looking at the beans.”

After her deposition, Edwards filed an affidavit in opposition to summary judgment in which she stated: “I entered [the store] and proceeded to the produce section. My attention was directed to a display stand, located in the center of the aisle, where a store employee was prepping string beans which had been placed on the stand. This gentleman and I exchanged greetings, after which the employee stated: ‘These are mighty pretty beans!’ I nodded my head in agreement, and thereafter responded: T think I’ll have a look at them.’ As I stepped forward, I slipped on several beans which were lying on the floor.”

“Where the party upon whom the burden of proof at trial does not lie, makes a motion for summary judgment, all of the evidence adduced on said motion, including the testimony of the party opposing the motion, is construed most strongly against the movant.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319) (1994). So construing Edwards’ deposition and affidavit, the testimony in both is consistent with the fact that at the exact moment she slipped Edwards was looking at the green bean display. Edwards deposed that a store employee was working with the beans at the time she fell, however, she was not questioned as to whether the employee said anything to her before her fall. Therefore, the averments in her affidavit were merely further explanation of the circumstances surrounding her fall which were not elicited during her deposition.

“In Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994), our Supreme Court held that the plaintiff’s explanation as to why he was not looking where he was going as he approached the check-out counter, that being, that he was looking at the cashier to tell him he was ready to check out, created a fact issue for jury determination. ‘This testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter.’ ” Sheriff’s Best Buy, supra at 291. In Sheriff’s Best Buy, a store employee greeted the plaintiff who fell as she responded to the greeting. Id. at 290. We applied the Supreme Court’s analysis from Barentine, supra, and determined that an even stronger case was made for finding that some evidence of reasonable care on the plaintiff’s part existed where communication was generated by the store employee, rather than by the plaintiff, as in Barentine. Id. at 291.

“Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is ‘a reasonable lookout’ depends on all the circumstances at the time and place. Moreover, appellant, as the movant for summary judgment, had the burden of showing that there was no diversion attributable to it which . . . caused [Edwards’] attention to be drawn away from the [floor]. Where a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury in colliding with what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant.” (Citations and punctuation omitted; emphasis supplied.) Food Giant v. Cooke, 186 Ga. App. 253, 257 (366 SE2d 781) (1988).

In the present case, our previous decision in Sheriff’s Best Buy, and the Supreme Court’s analysis in Barentine, preclude summary judgment for the defendant herein. The trial court’s denial of the defendant’s motion for summary judgment is affirmed.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Pope, P. J., Johnson and Ruffin, JJ., concur. Smith, J., concurs specially. Birdsong, P. J., and Andrews, J., dissent.

1 Mrs. Edwards’ husband was joined as a party plaintiff in the action by court order on the basis that he was entitled to assert a loss of consortium claim.