Plaintiff Ligón filed suit against defendant Alterman Foods, Inc. for injuries she sustained to her knee when she slipped and fell while shopping in defendant’s store. Plaintiffs complaint averred that defendant’s slippery floor proximately caused her fall and that *621 defendant knew or should have known of the dangerous condition of the floor. No one actually saw plaintiff fall.
In her deposition plaintiff testified that she had gone to the store to shop sometime after 2:00 p. m. on Friday afternoon as she had customarily done for four years; that although it was raining outside she noticed no water or wet areas on the floor; that the floor was “slippery and highly polished as usual”; that she did not notice the floor to be any more slippery than it had been on any other day she had been in the store until her foot slipped out from under her; that she did not see what she had slipped on either before or after she fell; that she did not know if there was a foreign substance on the floor which had caused her fall or if her fall was due to the slipperiness of the floor itself; that there were no marks or streaks on the floor or stains on her clothing which would have indicated what it was she slipped on.
On cross-examination plaintiff testified that in 1965 she was involved in an automobile accident which resulted in one of her legs being longer than the other and that since that time she was forced to wear a built-up shoe on one foot to compensate for her disability. Plaintiff stated that the foot on which she wore the built-up shoe was the one that had slipped out from under her in defendant’s store.
In opposition to plaintiff’s testimony defendant introduced depositions from a shopper who had assisted the plaintiff after her fall. This shopper testified that she sat on the floor to cradle plaintiffs head in her lap until the Rescue Squad arrived and that she would have “definitely known” if there was anything “unusual” about the floor. The shopper testified that she saw nothing on the floor that could have caused the plaintiffs fall and that the floor was not slippery.
Defendant also introduced a deposition from a store employee who had gone to the aid of plaintiff after her fall. The employee stated that he had examined the area where the plaintiff fell and found no foreign substance anywhere near her. He further testified that each Tuesday night after the store was closed store employees would wash and wax the floor with a non-slip wax.
The trial court granted defendant’s motion for summary judgment. The Court of Appeals reversed, finding that “a genuine issue of material fact existed as to whether the floor was so slippery as to create an unreasonable risk that a store patron in [plaintiffs] circumstances would slip and fall on it.” See,
Ligon v. Alterman Foods, Inc.,
We reverse.
In the majority of the so-called “slip and fall” cases the plaintiff alleges either that he slipped on a foreign substance — grit, vegetable leaves, trash, objects which have fallen from store shelves, etc. — on defendant’s floor, or that defendant’s floor has been made dangerously slippery by waxing, oiling or otherwise treating it.
In cases involving foreign substances the customer does not ordinarily know if the substance which caused him to fall has been placed on the floor through negligence attributable to the owner or through that of someone other than the owner. While the owner or occupier of land is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, Code Ann. § 105-401, “[b]efore an owner can be held liable for the slippery conditions of his floors, produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care.”
Conaway v. McCrory Stores,
In other cases the proprietor may be liable if he fails to exercise reasonable care in inspecting and keeping the premises in safe *623 condition. To sustain a cause of action in the latter type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. Winn-Dixie Stores v. Hardy, supra. “The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case [the] (nature of the business, size of the store, the number of customers, the nature of the dangerous condition and [the store’s] location).” Sharpton v. Great A & P Tea Co., supra, at 285.
As stated above, not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence.
Sears, Roebuck & Co. v. Reid,
supra. “ ‘The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.”
McGrew v. S. S. Kresge Co.,
However, a store patron “is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when [his] attention has been... diverted.”
Glover v. City Council of Augusta,
Thus in order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.
The slip and fall cases involving foreign substances are inapplicable in ah instance where the plaintiff alleges that he fell
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because of the slippery wax, oil or other finish that defendant placed on the floor. Because the defendant applied or authorized the application of the floor treatment, he is presumed to have knowledge of its existence. See
American National Bank v. Howard,
The weight of authority in cases where the plaintiff slips and falls, allegedly due to the defendant’s negligence in maintaining a highly waxed and slippery floor, is that “proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.” 63 ALR2d 634, § 10 and cases cited therein.
1
To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state. See
Boatright v. Rich’s Inc.
and
Angel v. Varsity, Inc.
supra. “What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use.”
Herschel McDaniel Funeral Home v. Hines,
Thus the plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them.
The line of demarcation in the cases is a narrow one, but to say that the issue is one for the jury in every such case presents an intolerable burden on innocent or even the most diligent merchants.
In the case before us the plaintiff averred only that the “slippery and dangerous floor maintained by defendant” was the proximate cause of her fall. The defendant presented evidence of no defective condition in the floor. Plaintiff did not introduce any evidence of the quality of material used or the methods which defendant used in waxing and maintaining its floor. She merely stated that she slipped and fell, but that she could not determine what it was that caused her fall.
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“ ‘The purpose of .the Summary Judgment Act... is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.’ ”
Summer-Minter v. Giordano,
Defendant introduced testimony of witnesses who had examined the floor immediately after plaintiffs fall and who found neither a foreign substance nor any other defect in the floor. Defendant also introduced evidence that the floor had been waxed two and one-half days prior to plaintiffs fall and had been trafficked during that time by other customers. Defendant’s evidence was sufficient to pierce the pleadings of the plaintiff and to shift the burden to her to produce issuable evidence or suffer judgment. See
Meade v. Heimanson,
“The evidence [here] is not ambiguous, doubtful, or susceptible of more than one interpretation. There is no evidence that the defendant or its agents were guilty of any negligence. Indeed the record affirmatively shows the absence of any negligence by the defendant or its agents. The evidence simply shows that the plaintiff fell while shopping in the defendant’s store. This is insufficient.” Food Fair v. Mock, supra, at 423. Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go.
It cannot be inferred from a silent record that defendant negligently maintained its floor. Plaintiffs statements, taken in the light most favorable to her, are merely conclusions and are probative of nothing. The fact is they show that she proceeded on the floor with *626 full knowledge of its condition “as usual.”
The Court of Appeals erred in reversing the grant of defendant’s motion for summary judgment.
Judgment reversed.
Notes
In support of this position see Asmussen v. New Golden Hotel Co.,