Daniel v. JOHN Q. CARTER ENTERPRISES, INC.
460 S.E.2d 838
Ga. Ct. App.
1995
Check Treatment

DANIEL v. JOHN Q. CARTER ENTERPRISES, INC.

No. A95A0662

Court of Appeals of Georgia

July 14, 1995

July 28, 1995

218 Ga. App. 223 | 460 SE2d 838

ANDREWS, Judge.

fringe benefit package presented by Valic,” not to adopt the “Plan Design” document. The plan design is not “the fringe benefit package“; it is merely a summary of the plan in outline form. The complete package, with all its provisions, is contained in the document captioned “Murray County Board of Educatiоn Retirement Savings Plan.” That document provides clearly that the employer “shall have full authority to control and manage the operation and administration of the Plan and to amend or terminate the Plan at any time.” We therefore hold that the plan that became part of the employees’ сontracts under

, like that in
and
, itself provided for future modification and/or termination at the discretion of the employer. Since the terms of their employment contracts provided that the terms of the plan could be modified or changed in the future, the participating employees never acquired a proрerty right in the benefits like that acquired by the participating employees in
. Under the plan, the Board had the right to modify benefits in the manner undertaken in July 1991.

2. As in

, there is no property interest to be protected, so the Due Process Clause of the United States Constitution has no application here.

Judgment reversed. Birdsong, P. J., and Johnson, J., concur.

DECIDED JUNE 21, 1995 —
RECONSIDERATION DENIED JULY 28, 1995 —

Harben & Hartley, Phillip L. Hartley, Martha M. Pearson, for appellants.

Waycaster, Corn, Murray & Morris, Cynthia N. Johnson, Zimring, Ellin & Miller, Michael E. Kramer, for appellees.

A95A0662. DANIEL v. JOHN Q. CARTER ENTERPRISES, INC.
(460 SE2d 838)

ANDREWS, Judge.

Daniel sued John Q. Carter Enterprises, Inc. d/b/a McDonald‘s claiming that the defendant restaurant operator negligently failed to keep its premises in a safe condition, and that as a result of this negligence, she was injured when she slipped and fell in a puddle of liquid on the floor of the restaurant. Daniel appeals from the trial court‘s grant of summаry judgment in favor of the defendant.

Even assuming that Daniel was without knowledge of the liquid which caused her to slip and fall, the defendant restaurant operator was entitled to summary judgment because there is no evidence as to how the clear liquid was placed on the floor of the restaurant and no evidencе that the defendant had actual or constructive knowledge of the liquid on the floor.

“[I]n 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.”

. In other words, it is only ” ‘when the perilous instrumentality is known to thе owner or occupant and not known to the person injured that a recovery is permitted.’ [Cit.]”
. Since there is no evidence and no claim by Daniel that the defendant had actual knowledge of the liquid in which she slipped and fell, Daniel‘s claim must be based on a showing that the defendant had constructive knowledge of the presence of the liquid on the floor of the restaurant.

Two different classes of premises liability cases may be based on constructive knowledge. In the first class, “[c]onstructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of thе dangerous condition and could easily have noticed and removed the hazard.” (Citations and punctuation omitted.)

. Since there is no evidence that an employee of the defendant was in the immediate area of the hazard, Daniel‘s claim falls into the second class of constructive knowledgе cases. In the second class, “[l]iability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist.”
.

The issue in the second class of constructive knowledge cases “is whether, under the existing circumstances, [defendant‘s] failure to have discovered the specific foreign substance prior to [the plaintiff‘s] fall was the result of the breach of [the defendant‘s] legal duty to inspect the premises. If so, an inference would arise from that breach of [the defendant‘s] constructive knowledge of the presence of the [foreign substance] on its floor.”

. In seeking summary judgment, the defendant has the initial burden of showing that this theory of recovery is not viable by demonstrating that it exercised reasonable care in insрecting the premises.
. This burden may be carried by evidence of compliance with reasonable inspection proce-dures.
. “Evidence establishing an adherence to customary inspection and cleaning procedures on the specific day in question is required; while proof of the mere existence of such customary procedures is insufficient. [Cit.]”
;
;
. Once a defendant demonstrates a lack of actionable constructive knowledge by compliance with reasonable inspection procedures, ‍​‌‌‌​‌‌​‌​‌‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​‌‌‌​‌​​‌‌‌‌‌​​‌‌‍the burden shifts back to the plaintiff to show how long the foreign substance had been allowed tо remain on the floor.
. ” ‘Without such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.’
. ‘(T)he plaintiff must show that the . . . substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant.’
.”
. Of course, “[i]n the absence of evidence that [the defendant] conducted a reasonable inspection of the premises that would have discovered the foreign substance that caused the slickness on the floor, [the plaintiff would not be] required to present evidence establishing the length of time that the substance had been allowed to remain on the floor. [Cits.]”
.

The record in this case shows that the restaurant conducted a routine inspection of the floor shortly before Daniel slipped and fell, which revealed no liquid on the floor. According to Daniel, she arrived at the restaurant somewhеre between 5:00 p.m. and 5:15 p.m., stood in line three to five minutes before she placed her order, waited “several more minutes” to receive her food, proceeded immediately to a counter to pick up some napkins and straws, and “maybe 10 seconds to 20 seconds” later arrived at the top of the steps where she stepped in the liquid and slipped and fell. In support of summary judgment, the defendant provided the affidavit and deposition testimony of the manager of the restaurant, who was on duty at the time of the fall. He stated that it was the normal procedure of the restaurant to inspect the floors every 30 minutes on the hour and half-hour by performing what was described as a “travel pass” of the entire restaurant. He stated that on the day Daniel fell, “the last time prior to the incident involving Mrs. Daniel when I would have instructed a crew person to perform a travel pass would have been at 5:00 p.m.” The manager further stаted that there was no report of any liquid on the floor in the area where Daniel slipped and fell.

Accordingly, the defendant provided evidence of adherence to a reasonable inspection procedure on the day of the fall which revealed no hazard on the floor somewhere between ten to twenty-five minutes prior to the fall, depending on when Daniel arrived at the restaurant between 5:00 p.m. and 5:15 p.m. There was no evidence that the premises were unusually dangerous, and “[i]t is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of faсts showing that the premises are unusually dangerous.”

. This evidence was sufficient to shift the burden to Daniel to prove how long the liquid had been on the floor.
; compare
(burden did not shift to plaintiff where normal inspection procedure explained, but manager had no memory as to whether the inspection procedure had beеn adhered to on the day of the fall);
(evidence failed to establish that any inspection had been made ‍​‌‌‌​‌‌​‌​‌‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​‌‌‌​‌​​‌‌‌‌‌​​‌‌‍on the day in question, so burden never shifted to plaintiff);
(burden did not shift where defendant offered no evidence as to what inspection procedures, if any, were in effect and no evidence as to adherence to any inspection procedures).

There was no evidence as to how long the liquid had been on the floor of the restaurant. Accordingly, there was no proof that the liquid had been on the floor for a period of time sufficient for it to have been discovered by a reasonable insрection.

. Since actual knowledge is not at issue and the record does not show that the defendant had any constructive knowledge of the hazard, the trial court correctly granted summary judgment in favor of the defendant.
;
;
.

Judgment affirmed. Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ., concur. McMurray, P. J., dissents. Smith, J., not participating.

MCMURRAY, Presiding Judge, dissenting.

I respectfully dissent as it is my view that genuine issues of material fact remain as to defendant‘s constructive knowledge of the clear liquid which allegedly caused plaintiff Dana Daniel‘s fall and as to defendant‘s maintenance of a distraction which prevented plaintiff Dana Daniel from discovering this hazаrd. In fact, with regard to the issue of defendant‘s constructive knowledge, I find no evidence to support the majority‘s statement that “[t]he record in this case shows that the restaurant [personnel] conducted a routine inspection of the floor shortly before Daniel slipped and fell, which revealed no liquid on the floor.”

On December 21, 1992, plaintiff Dana Daniel and her nine-year-old son arrived at defendant‘s fast-food restaurant (“McDonald‘s“) for an early dinner. They entered McDonald‘s and went to the order counter where they received their food along with a videotape, all which was placed on a single tray carried by plaintiff Dana Daniel. She then proceeded to a condiments counter where she obtained napkins, salt, pepper, and straws. While at the condiments counter, she noticed for the first time a Christmas tree located against a partition between the level on which she was located and a lower dining lеvel. The Christmas tree, a live tree in a stand with a fleecy white skirt underneath the tree, was located to the right of the steps down to the lower level. The skirt beneath the tree was rectangular in shape and one corner of the skirt was protruding out close to the steps and in her path so that plaintiff Dana Dаniel became concerned that she would step on it and possibly dislodge the tree or cause some other damage. In order to proceed down these steps, she stepped over to the left side of the steps while looking back to the right to be certain that she had avoided the skirt beneаth the tree. Her foot slipped on the landing at the top of the steps, and she fell down the steps. As she was falling, she looked over to the left and saw a small puddle of a clear liquid which looked like water but may have been “Sprite.”

While plaintiff Dana Daniel admitted that she could have seen the liquid if she had been looking in that direction, she maintains that she was distracted by the placement of the skirt beneath the tree. ” ’ “Looking continuously, without intermission, for defects in a floor is not required in all circumstances. (Cits.) ‘What is “a reasonable look-out” depends on all the circumstances at the time and place.’ ” (Cit.)’ [Cit.]”

. Wherе the defendant creates a distraction which would normally divert the plaintiff‘s attention from where she is going so as to be the proximate cause of her injury, this constitutes actionable negligence on the part of the defendant.
;
. In this instance, it is my view that jury issues remain as to whether the placement of the Christmas tree (and accompanying skirt) so close to the steps as to encroach upon the customer‘s path when using the steps ‍​‌‌‌​‌‌​‌​‌‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​‌‌‌​‌​​‌‌‌‌‌​​‌‌‍amounted to a distraction which excused the failure to maintain a lookout sufficient to spot the small amount of liquid on the floor and constituted the proximate cause of plaintiff Dana Daniel‘s injury.
;
;
.

By presenting evidence that plaintiff Dana Daniel was prevented from discovering the liquid on the floor for a reason attributable to defendant, I believe plaintiff raises genuine issues of material fact concerning one of the two prongs of the test applicable to foreign substаnce slip and fall cases. The second part of the test stated in

, requires that the plaintiff show that defendant had actual or constructive knowledge of the foreign substance, in this case, the liquid upon which plaintiff Dana Daniel slipped.

Constructive knowledge may be based upon a failure to exercisе reasonable care in inspecting the premises and in the absence of evidence of a reasonable inspection of the premises, a plaintiff is not required to establish how long a spill had remained on the floor.

. Evidence as to normal store procedures for inspecting floors doеs not provide proof that inspections were actually carried out in accordance with such policies.
. Although there is ample evidence as to defendant‘s normal procedure for inspecting floors in the case sub judice, there is no evidence that the inspections, which should have immеdiately preceded the incident at issue, were actually conducted.

The McDonald‘s manager on duty at the time plaintiff Dana Daniel fell states that it was normal procedure to inspect the floors of the restaurant every 30 minutes, but he never testified or deposed that such an inspection was aсtually conducted just before plaintiff Dana Daniel fell. He stated only that “the last time prior to the incident involving Mrs. Daniel when I would have instructed a crew person to perform a travel pass would have been at 5:00 p.m.” The majority takes this evidence to mean that such a “travel pass” was actually conducted. I cannot go along with this conclusion.

On summary judgment, supporting or opposing affidavits ‍​‌‌‌​‌‌​‌​‌‌​​‌​‌​​‌​​‌​‌‌​‌​‌​​‌‌‌​‌​​‌‌‌‌‌​​‌‌‍must be made on personal knowledge. OCGA § 9-11-56 (e). As is apparent by use of the term “would” in the restaurant manager‘s affidavit, the deponent could not swear, under penalty of perjury, that he has actual knowledge that an inspection of the restaurant floor was done at 5:00 p.m. on the day plaintiff Dana Daniel fell. The best the restaurant manager can muster is that he “would” have customarily asked a crew member to do it. The manager does not state that he actually told a crew member to perform the 5:00 p.m. inspection or that he observed an employee doing such an inspection. Under these circumstances, I dо not agree with the majority that “[t]he record in this case shows that the restaurant [personnel] conducted a routine inspection of the floor shortly before Daniel slipped and fell, which revealed no liquid on the floor.”

For the foregoing reasons, I believe that genuine issues of material fact remain аs to defendant‘s constructive knowledge of the clear liquid which allegedly caused plaintiff Dana Daniel‘s fall and as to defendant‘s maintenance of a distraction which prevented plaintiff Dana Daniel from discovering this hazard.

I would therefore reverse the trial court‘s grant of summary judgment in favor of defendant and permit the plaintiff here to have her day in court before a jury of her peers.

DECIDED JULY 14, 1995 —
RECONSIDERATION DENIED JULY 28, 1995 —

Hollberg, Weaver & Kytle, James W. Kytle, for appellant.

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Tammy S. Skinner, for appellee.