Caree v. Revco Discount Drug Centers of Georgia, Inc.

Sognier, Judge.

I respectfully dissent.

A plaintiff may establish that a proprietor had constructive knowledge of a dangerous condition under two sets of circumstances: (1) where an employee of the proprietor was in the immediate area of the dangerous condition and could have easily seen and removed the hazard, and (2) where the proprietor has breached his duty to exercise reasonable care in inspecting and keeping the premises in safe condition. Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (226 SE2d 142) (1976). I find no evidence in this case of either set of circumstances.

The record shows that appellee’s clerk had been in the location where appellant fell just four to five minutes before his fall and that no baby oil was on the floor at that time. Although there was some evidence that other employees were in the general vicinity of the spilled baby oil at the time appellant fell, as noted by the majority, there is no evidence that they had an opportunity to observe the baby oil puddle in the four to five-minute interval prior to appellant’s fall. The majority finds a genuine issue of material fact as to whether appellee had constructive knowledge of the spilled baby oil because a security guard was in “the precise location of appellant’s fall immediately prior to the occurrence.” However, an examination of the record shows no evidence of when the security guard was at that location, only that he was there “at some time,” either before or after appellant’s fall. I find this evidence insufficient to create a question of fact on the issue of appellee’s knowledge of the spilled baby oil and I find no question of fact elsewhere in the record from which a jury could infer any failure on appellee’s part to exercise reasonable care to keep its store in safe condition. See Gold & White v. Long, 159 Ga. App. 259, 260 (283 SE2d 45) (1981); Dillon v. Grand Union Co., 167 Ga. App. 381, 382 (1) (306 SE2d 670) (1983); Fincher v. Fox, 107 Ga. App. 695-700 (2) (131 SE2d 651) (1963); Jones v. West End Theatre Co., 94 Ga. App. 299, 303 (2) (94 SE2d 135) (1956). Therefore, I would affirm.

Decided June 25, 1985 Rehearing denied July 15, 1985 David Anderson Swift, for appellants. Edward M. Newsom, for appellee.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.