Piggly Wiggly Southern, Inc. v. Brown

Smith, Judge,

dissenting.

While I concur fully with Judge Andrews’ dissent, I write separately to point out that the majority in this case is attempting to create a new rule of law on the issue of actual and constructive knowledge, a rule which is contrary to the Georgia Supreme Court’s holding in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). See separate dissent in Dill’s Food City v. Johnson, 219 Ga. App. 654 (466 SE2d 250) (1995).

I am authorized to state that Judge Andrews and Judge Johnson join in this dissent.

On Motion for Reconsideration.

In response to Piggly Wiggly’s claim on reconsideration that we misconstrued the evidence regarding James Hampton’s knowledge of “water on the floor in the produce section on the morning Margaret Brown fell[,]” we point out that on appeal an appellate court is bound to construe the evidence with every reasonable inference and presumption in favor of the non-moving party on summary judgment. Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245). From this perspective, we quote James Hampton’s affidavit in its entirety: “1. My name is JAMES HAMPTON and I am competent in all respects to testify regarding the matters set forth herein. 2. On Saturday, September 14, 1991, I was employed by Piggly Wiggly Store in Hawkinsville, Georgia, as a bag boy. I got to work on that date sometime after 7 A.M. I was in the store at the checkout counter when Margaret Brown, whom I know by sight, came into the store. 3. My regular duty was to bag groceries for customers, but I would be called on also to work as a stock boy, moving old stock off the shelves and replacing with new stock. 4. On the morning of September 14, 1991,1 recall the produce man icing down the produce counter around 9:00 A.M. The way this is done is that the produce man would transport containers full of crushed ice from the stock room where the ice making machine is located over to the produce counter. On several occasions I have seen chunks of ice fall from the container to the floor while being transported. Also, I have seen chunks of ice fall to the floor while the produce man is pouring ice under the tray upon which the vegetables and fruits are placed. The produce man would usually have to make several trips from the ice maker to the produce counter in order to fill the area under the tray. 5. When the produce man is adding fresh ice or cleaning out the old ice by draining water he usually puts out a ‘Wet Floor’ sign which is a white triangle with black letters. I did not see this sign on the floor on the morning that Margaret Brown fell. 6. The produce man would be the person responsible for mopping around the produce section. I don’t remember seeing him mopping the floor on the morning of September 14, 1991. 7. During the period of time I worked at the Piggly Wiggly Store, I have seen puddles in and around the produce section caused by chunks of melted ice that had fallen to the floor. 8. During the time I worked at the Piggly Wiggly Store, I have on more than a few occasions seen water on the floor that has remained there for long periods of time. 9. I have never been given any specific instructions by the manager, Mr. Braddock, about inspecting the aisles for water or other substances on the floor. It was my understanding that each employee was responsible for his own area. My area would be around the check-out counter where I worked as a bagger. I have on occasions been called by a customer who had pointed out water or some other substance on the floor. On those occasions, I have mopped up the water or spilt substances. 10. On the morning of September 14, 1991, sometime between 10 a.m. and 11 a.m., I remember Margaret Brown being helped by Mr. Braddock and Patricia as she was slowing [sic] walking from the direction of the produce section towards the front of the store. She appeared to be in a lot of pain. I heard Ms. Brown say she had slipped in water. 11. I remember seeing water on the floor in the produce section on the morning Margaret Brown fell. To my best recollection the water remained on the floor for a long time after Ms. Brown had left the store.”

Motion for reconsideration denied.

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Decided December 5, 1995 Reconsideration denied December 20, 1995 Jones, Cork & Miller, Timothy Harden III, W. Kerry Howell, for appellants. Thomas M. Jackson, for appellee.