Aрpellee-plaintiff fell when she stepped into motor oil which apparently had escaped from cans displayed on a shelf and then collected on the floor of an aisle in appellant-defеndant’s store. Appellee filed this action for damages and, after a period of discovery, appellant moved for summary judgment. The trial court denied appellant’s motion, but certified its order for immediate rеview. This appeal results from this court’s grant of appellant’s application for an interlocutory appeal.
1. In support of its motion for summary judgment, appellant produced the affidavits of three of its еmployees who had been on duty at the time that appellee fell. Each affiant asserted a lack of personal *254 knowledge as to the presence of the oil, the length of time that it may have been рresent on the floor, and the precise manner in which it had come to be there. In addition to this lack of actual personal knowledge, each affiant also denied receipt of notice, from any othеr source, of the presence of the oil on the floor prior to appellee’s fall. The affidavit of appellant’s manager contained this additional statement: “During the times I was in charge of a store for a shift, including while I was in charge of the store on the shift in which [appellee] allegedly fell, I customarily would patrol or instruct others to patrol the store three to four times per shift. Additionally, I instructed the employees in my charge tо keep a lookout for any condition which could possibly cause a hazard to customers or other employees, and to correct any such condition if discovered.” (Emphasis supplied.)
“ ‘(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) thаt the defendant had actual
or
constructive knowledge of the foreign substance. . . [Cit.]” (Emphasis supplied.)
Filmore v. Fulton-DeKalb Hosp. Auth.,
“Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. [Cit.] Liability 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. [Cits.]” (Emphasis supplied.)
Hughes v. Hosp. Auth. of Floyd County,
Nothing in appellant’s evidence shows directly or circumstantially the approximate length of time that the oil may have been allowed to remain on the floor. Nowhere in their affidavits did appellant’s employees specifically state at what time or even if, prior to the incident, the aisle in question had been inspected for foreign substances or had been ordered to be inspected. Construing the evidence most strongly against appellаnt, its manager’s affidavit went merely to the general existence of a customary inspection procedure and would not be sufficient to negate the possibility that, on this specific occasion, there had been a deviation from that procedure. If appellant’s manager cannot state that she was adhering to her customary inspection procedures on the specific day in question, the mere existence of such customary procedures would prove nothing. Compare
Continental Grain Co. v. Farmers Gin &c. Co.,
Moreover, even assuming that the affidavit of appellant’s mаnager could be construed both as a statement of the general existence of customary inspection procedures and also as an affirmation of her adherence to those customary procedures on the specific day of appellee’s fall, such evidence, standing alone, would not authorize the grant of appellant’s motion for summary judgment. The issue is not whether appellant had adhered to its customary inspection procedures. The issue is whether, under the existing circumstances, appellant’s failure to have discovered the specific foreign substance prior to appellee’s fall was the rеsult of the breach of appellant’s legal duty to inspect the premises. If so, an inference would arise from that breach of appellant’s constructive knowledge of the presence of the oil on its flоor. Appellant’s mere adherence to its customary inspection patrol “three to four times per shift” would not show that the failure to have discovered the oil was non-negligent. “ ‘ “An act in accordance with сustom is not relieved of its character as negligence as a matter of law merely because of the custom.” [Cit.] “By the great weight of modern American authority a custom either to take or to omit a precаution is generally admissible as bearing on what is proper conduct under the circumstances, but is not conclusive ... An actor will not be allowed
*256
to show conformity with his own individual habits in order to prove due care.” [Cits.] . . . “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” ’ [Cit.]”
Stuckey’s Carriage Inn v. Phillips,
The issue in this case is whether appellant’s lack of prior аctual knowledge of the presence of the oil is a factor which goes to show its liability rather than its non-liability for appellee’s fall. At trial, the burden will be on appellee to prove that, notwithstanding a lack оf actual knowledge, appellant had constructive knowledge insofar as, under the existing circumstances, the oil had been on the floor for a period of time sufficient for a reasonable inspection tо have discovered it and that the knowledge of its presence should accordingly be imputed to appellant. “ ‘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).’ [Cit.]”
Alterman Foods v. Ligon,
Since appellant did not meet its initial evidentiary burden as the movant for summary judgment, the burden never shifted to appellee tо produce evidence as to how long the oil may have been on the floor. It follows that, as to the issue of appellant’s constructive knowledge of the oil, the trial court did not err in denying summary judgment.
2. In her depositiоn, appellee stated that, had she been looking at the floor, she would have seen the oil before stepping into it. Placing its reliance upon this statement, appellant moved for summary judgment on the ground that аppellee’s failure to exercise ordinary care for her own safety was the proximate cause of her fall. The trial *257 court’s refusal to grant appellant’s motion on this ground is enumerated as error.
The mere fact that appellee was not looking ahead does not demand a finding that she was not exercising ordinary care for her own safety. “ ‘Looking continuously, without intermission, for defects in a floor is not required in all сircumstances. [Cits.] “What is ‘a reasonable lookout’ depends on all the circumstances at the time and place.” ’ [Cit.]”
Wakefield v. A. R. Winter Co.,
Judgment affirmed.