This appeal arises from the grant of summary judgment to defendant Camp Oil Company in a negligence action brought by plaintiff Virginia Flood for injuries she sustained when she slipped and fell at a convenience store operated by defendant. Plaintiff testified at her deposition that she went to the store to purchase gasoline for her car. She pulled up to a self-service pump island and then went into the store to pre-pay for the gasoline. It was raining and the concrete pavement on the premises was wet. As she walked from the pump toward her car with the nozzle in her hand she slipped and fell, sliding approximately three feet. She testified she was being careful because the water on the pavement “[looked] like it does at any service station. It . . . looked oily, you know, like it had something mixed in with it.” Before she was transported to the hospital by ambulance her son arrived and, according to his affidavit, he observed a large quantity of an oily liquid on and around the pump island which he believed to be diesel fuel. Plaintiff claims she fell because defendant was negligent in failing to keep the premises free from the hazard caused by the diesel fuel mixed with water on the pavement.
Defendant presented the affidavit of the store manager who had been away from the store and drove up to the premises just before plaintiff fell. The manager went to assist plaintiff when she noticed plaintiff sitting on the pavement. According to the manager, she inspected the area where plaintiff had fallen and observed no foreign substance on the pavement. She also attested it was her practice to inspect the premises routinely and to clean up any spills seen by an employee or reported by a customer. On the day in question, she received no reports of spills or foreign substances on the grounds from either customers or employees. Plaintiff submitted the affidavit of the clerk on duty at the store on the day in question. The clerk had been at work for about two hours when plaintiff fell. According to the clerk, her primary responsibility was to operate the cash register inside the store and then to inspect and clean the fuel pump island when she was not otherwise occupied inside the store. On the afternoon in question, she had been too busy operating the cash register inside the store to inspect the fuel pump island. Immediately after plaintiff fell, however, she received reports from several customers that fuel was spilled over the concrete near the pump island. According to the clerk, one of the fuel pumps “was always leaking on and off” and, when so informed by a customer, she would place a sign on the pump indicating it was out of order. Plaintiff’s son also attested he had observed a large quantity of an oily liquid, which he believed to be diesel fuel, on and around the pump island at defendant’s store *452 on a date prior to the day plaintiff fell.
The trial court granted summary judgment to defendant on the ground that the record shows plaintiff possessed knowledge of the allegedly dangerous condition equal to that of defendant. Plaintiff’s statements concerning her observations of the condition of the pavement show she was aware the wet pavement was oily to the degree that wet pavement at any service station could be oily. In this case, however, plaintiff has alleged a particular hazard, in excess to that normally caused by rain water at a service station was created by diesel fuel leaking from a pump. No evidence was presented to show plaintiff had equal knowledge of this hazard. Thus, the facts of this case are distinguishable from those cases cited by the trial court in support of its conclusion that plaintiff is precluded from recovering because of her equal knowledge. See, e.g.,
Kersey v. C. S. R. A. &c Auth.,
Whether defendant is entitled to summary judgment then depends upon whether defendant presented sufficient evidence to show it had neither actual nor superior constructive knowledge of the alleged hazard. “The evidence of record would appear to be sufficient to show that [defendant] lacked
actual
knowledge of the [substance] prior to [plaintiff’s] fall. Thus, the ultimate issue to be resolved is whether that evidence would also be sufficient to show that [defend
*453
ant] had no
constructive
knowledge of the foreign substance.”
Food Giant v. Cooke,
The evidence is undisputed that no employee of defendant was in the vicinity of plaintiff when she fell. “ ‘Thus, [plaintiff’s] sole avenue of possible recovery is one in which constructive knowledge on the part of [defendant] is premised upon [defendant’s] failure to exercise reasonable care in inspecting and keeping the premises in (a) safe condition. The (issue thus becomes whether the) [affidavit] executed by [defendant’s manager negates] recovery of that theory.’ ” (Citations omitted.) Id. at 254-255. Even though the manager attested it was her practice to inspect the premises routinely, her affidavit does not indicate she inspected the premises at all on the day in question and thus proves nothing. Id. See also
Hamner v. Emory Univ.,
“The burden was, of course, on [defendant] as movant on motion for summary judgment to negate this theory of liability by presenting evidence that it had in fact exercised reasonable care in inspecting the premises. Inasmuch as the evidence submitted by [defendant] on this issue failed to establish that any inspection at all had been made on the day in question, we must conclude that this burden of proof was not met. Thus, the burden never shifted to [plaintiff] to produce evidence that the [foreign substance] had been present on the pavement ... for a period of time sufficient to have been discovered by a reasonable inspection procedure. [Cits.] Although the burden would be on [plaintiff] to present such evidence at trial in order to establish a prima facie case based on the constructive knowledge theory, ‘(o)n a motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party . . . even as to issues upon which the opposing party would have the trial burden. . . .’ [Cit.] Therefore, we hold that the trial court erred in granting [defendant’s] motion for summary judgment.”
Boss v. Food Giant,
Judgment reversed.