In this sliр and fall case, Sallie Blocker appeals the grant of summary judgment to Wal-Mart Stores, Inc. (Wal-Mart), contending that material issues of fact exist as to Wal-Mart’s constructive knowledge as shown by (1) whether nearby Wal-Mart employees were in a position to discover the hazard on which Blocker slipped, and (2) whether Wal-Mart should have discovered the hazard according to its routine inspection procedure. We conclude that the trial court correctly ruled that nearby Wal-Mart employees were not in a position to easily see the hazard, but because therе was no evidence as to whether Wal-Mart carried out its routine inspection procedures, we must reverse the trial court’s ruling on that issue.
Summary judgment is proper when there is no genuine issue of matеrial fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c).Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
Matjoulis v. Integon Gen. Ins. Corp.
So viewed, the record shows that in September 2004, Blocker met a friend at Wal-Mart to grocery shoр for their church. As Blocker’s friend waited in the checkout line, Blocker decided to use the restroom located at the front of the store. On her way back from the restroom, Blocker slipped on a grape on the floor and fell, injuring her knee. Shortly after she fell, Wal-Mart employees attended to her and filled out an incident report based on what Blocker told them.
Blocker sued Wаl-Mart for her injury, claiming that Wal-Mart breached its duty to her to keep the store premises reasonably safe. Following discovery, Wal-Mart moved for summary judgment, arguing that it had neither actual nor constructive knowledge of the grape on which Blocker slipped. After a hearing, the trial court granted Wal-Mart’s motion, giving rise to this appeal.
[I]n order to recover for injuries sustained in a slip-and-fall аction, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of оrdinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiffs evidentiaryproof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff.
Robinson v. Kroger Co.
Wal-Mart’s summary judgment motion focused on the first prong above, i.e., Wal-Mart’s knowledge of the hazard.
Where, as here, it is undisputed the defendant lacked actual knowledge of any alleged hazard, the case turns on whether constructive knowledge of the alleged hazard can be imputed to the owner/occupier. Constructive knowledge can be established in two ways. First, constructive knowledge can be demonstrated by showing that an employee was positioned in the immediate vicinity and had the opportunity and means to discover and remove the hazard. Second, constructive knowledge may be shown by evidence that the alleged hazard was present for such a length of time that it would have been discoverеd had the proprietor exercised reasonable care in inspecting the premises.
(Citation omitted.) Washington v. J. D. Royer Wholesale Florist.
1. Blocker first contends that the trial court erred in ruling that Wal-Mart employees were not in a positiоn to discover and remove the grape on which Blocker fell. We disagree.
The undisputed record shows that Blocker slipped and fell within an arm’s length of the bagging counter at the end of a chеckout aisle. In her deposition, Blocker explained that she slipped on a grape as she walked past a line of people at the customer service desk and past othеr people who were standing at the end of the bagging counter of a checkout aisle. Blocker drew a diagram showing the location of the fall, which was between several peoрle. She further stated that as she fell, two people grabbed her and broke her fall.
Here, it is undisputed that Wal-Mart employees were checking out customers in the checkout lines near where Blocker fell. However,
[e]vidence that an employee was present in the area of the hazard is not sufficient, standing alone, to raise a jury question as to the proprietor’s constructive knowledge of the hazard. Rather, to prevent summary judgment, it must be shown that the employee was in a position to have easily seen the substance and removed it.
(Punctuation omitted; emphasis supplied.) Kroger Co. v. Williams,
2. Blocker also contends that the trial court erred in ruling that, in light of Wal-Mart’s inspection procedure, Blocker failed to meet her burden of proof of demonstrating how long the grape was present. We agree.
In order to prevail at summary judgment based on lack of constructivе knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. In addition, tо withstand a motion for summary judgment, the plaintiff need not show how long the hazard hadbeen present unless the owner has demonstrated its inspection procedures.
(Emphasis supplied.) Davis v. Bruno’s Supermarkets.
Here, Wal-Mart presented evidence from two employees. Both testified that Wal-Mart’s policy is to call employees to do “safety sweeps” once each hour, wherеby employees would look for hazards in their area. However, when asked about the particular day Blocker fell, neither employee could recall even that she fell, nor did they testify as to any safety sweeps done or called for on that day. One employee did testify to being the first on the scene, after being presented with the incident report he filled out, but he explained thаt he had no memory of the incident or day itself other than what was on the form, which did not address safety inspections. Therefore, WalMart presented no evidence as to whether or how frequently its insрection procedure was carried out on the day Blocker fell.
Even so, Wal-Mart relies on testimony from Blocker and her friend to show that the grape was on the floor for such a short period of time that any reasonable inspection procedure would not have revealed the hazard. To do this, Wal-Mart points to testimony from Blocker’s friend that Blocker “said [the grape] wаsn’t there when she went to the bathroom,” and testimony from Blocker that she did not see the grape on her way to the restroom, which was five to six minutes prior to her fall. Accordingly, Wal-Mart argues that the grаpe could not have been there more than five or six minutes, and any inspection procedure would have been futile in such a short interval.
However, to adopt this reasoning would require us to аbandon the proper view of the evidence at the summary judgment stage, i.e., most favorably to Blocker, the nonmovant. So viewed, the evidence on which Wal-Mart relies does not clearly еstablish what length of time the grape was on the floor, as Blocker also states in her testimony, “[I have] no idea how long it had been there.” The testimony on which Wal-Mart relies merely establishes that Bloсker did not see the grape on her way to the restroom. As “[t]he Supreme Court of Georgia has rejected any requirement that an invitee look continuously at the floor for defects,” Davis v. Bruno’s Supermarkets, supra,
Further, awareness of a hazard such аs a grape on the floor “is not necessarily imputed to an invitee who successfully traverses an area, but then slips or trips on a hazard while taking a different route across the same general area.” Ward v. Autry Petroleum Co.
Matjoulis v. Integon Gen. Ins. Corp.,
Robinson v. Kroger Co.,
Washington v. J. D. Royer Wholesale Florist,
Kroger Co. v. Williams,
Davis v. Bruno’s Supermarkets,
J. H. Harvey Co. v. Reddick,
Ward v. Autry Petroleum Co.,
Avery v. Cleveland Avenue Motel,