Hartman v. Clark ( 2017 )

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
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
May 10, 2017
In the Court of Appeals of Georgia
A17A1023. HARTMAN v. CLARK.
ANDREWS, Judge.
Latasha Hartman sued David Clark for damages after she slipped and fell at a
Chick-fil-A restaurant owned and operated by Clark. Clark subsequently moved for
summary judgment. The trial court granted Clark’s motion, and Hartman appeals. For
reasons that follow, we affirm.
Summary judgment is appropriate when no genuine issues of material fact
remain and the moving party is entitled to judgment as a matter of law. See OCGA
§ 9-11-56 (c). We review a trial court’s summary judgment ruling de novo, construing
“the evidence most favorably towards the nonmoving party, who is given the benefit
of all reasonable doubts and possible inferences.”All American Quality Foods v.
Smith, 340 Ga. App. 393 (797 SE2d 259) (2017) (punctuation omitted).
So viewed, the record shows that Hartman visited Clark’s Chick-fil-A for
dinner on February 6, 2013. After eating, Hartman left her table to visit the restroom.
She entered the restroom, walked directly into the handicap stall, and used the
facility, remaining in the stall five to ten minutes. She then exited, taking about two
steps before she fell backwards, twisting her ankle and injuring her back. At her
deposition, Hartman asserted that she slipped on water. She also testified, however,
that there was no water on the floor when she entered the restroom and walked to the
stall.
In Georgia, “proof of a fall, without more, does not give rise to liability on the
part of a proprietor.” Id. at 395 (1) (punctuation omitted). To support a premises
liability claim, a plaintiff must show that the proprietor had superior knowledge –
either actual or constructive – of the hazard that caused the plaintiff’s injury. See id.Hartman does not contend that Clark had actual knowledge of the water on which she
slipped. Instead, she argues that questions of fact remain as to Clark’s constructive
knowledge of the hazard, precluding summary judgment. We disagree.
A claimant may establish constructive knowledge by presenting “evidence that
the hazardous condition lasted so long that it would have been discovered and
removed if the proprietor had exercised reasonable care in inspecting the premises.”
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Id. (punctuation omitted). According to Hartman, the evidence raises factual
questions about Clark’s inspection procedures and whether they were followed on
February 6, 2013. For a proprietor to be liable, however, “the hazardous condition
must have been in place on the premises for a sufficient period of time such that [he]
should have discovered and removed the hazard.” Id. at 395 (1) (a) (punctuation
omitted). And Hartman testified unequivocally that no water was on the floor when
she entered the restroom five to ten minutes before she fell.
The undisputed evidence shows that, at most, the water on which Hartman
slipped remained on the floor for ten minutes. Regardless of when restaurant
employees last inspected the restroom, this limited period of time was “insufficient
as a matter of law to hold that [Clark] should have discovered and removed the liquid
prior to [Hartman’s] fall.” Id. at 396 (inspection-related evidence irrelevant where
evidence showed that hazardous substance was on grocery store floor only six or
seven minutes); see also Gleaton v. APAC-Georgia, 228 Ga. App. 52, 55 (2) (491
SE2d 138 (1997) (“In cases involving grocery stores, parking lots, and restaurants,
we have found that 15 or 20 minutes was a legally insufficient amount of time for a
proprietor to discover a foreign substance on the floor.”); Mazur v. Food Giant, 183
Ga. App. 453, 454 (1) (359 SE2d 178) (1987) (“Where it appears a foreign object had
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not been present for more than 10 to 15 minutes, the allegations show no actionable
negligence on the part of the proprietor in failing to discover it.”) (punctuation
omitted).
On appeal, Hartman urges us to interpret her deposition testimony as meaning
that she “merely did not see the water on the floor when entering the stall.” But her
testimony does not permit such interpretation. Hartman clearly stated that there was
no water on the floor when she walked into the restroom. She never asserted that she
did not see the water. And she made no subsequent effort to modify or explain her
testimony. See Sunlink Health Sys. v. Pettigrew, 286 Ga. App. 339, 341 (649 SE2d
532) (2007) (“It is well established that on summary judgment a party’s
self-contradictory testimony, if unexplained, must be construed against the
party-witness, even when the party-witness is the respondent rather than the
movant.”). Furthermore, although Hartman argues that the water at issue could not
have “miraculous[ly] appear[ed],” she testified that she could not remember whether
anyone else (i.e., a person who could have spilled the water) was in the restroom
while she occupied the handicap stall.
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The record contains no evidence that Clark had superior knowledge of the
hazard on which Hartman fell. Accordingly, the trial court properly granted Clark’s
motion for summary judgment. See All American Quality Foods, supra.
Judgment affirmed. Ellington, P. J., and Rickman, J., concur.
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