Catherine Terry brought this action against Foodmax, Inc. for injuries she allegedly sustained when she slipped and fell on a foreign substance at a Foodmax supermarket. The trial court denied Food-max’s motion for summary judgment and we granted Foodmax’s application for interlocutory appeal.
Reviewing the evidence in favor of Terry as the nonmovant on a motion for summary judgment, the record reveals that Terry was walking down an aisle of the Foodmax store searching the shelves for some peas when she slipped and fell on two small puddles of a dark substance resembling cola. Terry testified in her deposition that her husband was pushing a grocery cart and she was walking at least five feet behind him. She stated that, after falling, she saw a dark substance on the floor that had dried and was sticky. She stated that the floor of the store was a light color and that had she been looking at the floor she would have seen the substance; however, she “was looking for what she was getting.”
By affidavit, Terry Slone, the store manager, and Mary Stell, a cashier, testified that Foodmax had a policy whereby all store employees were required to visually inspect the floors for any foreign substances and to remove and clean any such substances. Slone stated that he had conducted a visual inspection of the area where Terry fell approximately 20 minutes before the fall and that no foreign substances were present at that time. Stell stated that she had inspected the area where Terry fell approximately five minutes before the fall and saw no foreign substance. Stell further testified that at the time of the fall she and another employee were walking five to ten feet behind Terry and could not have seen the foreign substance on the floor because Terry was blocking their view. Both Slone and Stell conceded that after the fall they saw a small puddle of brown liquid near where Terry fell. Slone also stated that the substance appeared to be cola.
1. Foodmax argues that summary judgment should have been granted because no evidence exists that it had knowledge of the foreign substance on the floor. In order to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised.
Alterman Foods v. Ligon,
As to the second theory, a lack of actionable constructive knowledge may be established by presenting conclusive evidence that a customary inspection and cleaning program was in place and had been complied with on the day in question.
Mallory v. Piggly Wiggly Southern,
In
Mazur,
this court held that the fact that the frozen vegetables on which the plaintiff slipped had thawed was not inconsistent with testimony that the vegetables had not been present ten to fifteen minutes earlier. Id. at 454 (1). We likewise reject Terry’s contention that her testimony regarding the dry and sticky nature of the substance controverted the direct evidence in Stell’s affidavit that the substance was not there five minutes before the fall. The mere fact that the cola appeared to be dry and sticky is not inconsistent with the testimony that it was not present five minutes earlier since cola is by its very nature sticky and it could have appeared dry by virtue of having dust tracked in it or having been run over by a grocery cart. See also
Queen,
supra at 250 (1). “[A] fact shown by direct, uncontradicted, reasonable and unimpeached evidence cannot be disproved by circumstantial evidence consistent with such direct evidence.” (Citations and punctuation omitted.)
Mazur,
supra at 454 (1). Thus, the existence of multiple alternative reasons for the sticky nature of the spot distinguishes this case from those in which the nature or condition of the foreign substance raised a reasonable inference that sufficient time had passed since the substance appeared to charge the owner with constructive knowledge. See, e.g.,
Mitchell v. Rainey,
2. Foodmax also alleges the trial court erred in finding a material question of fact existed as to whether Terry exercised ordinary care for her own safety. “In order to recover for a slip and fall resulting from a foreign substance . . . the plaintiff must also show that he was without knowledge of its presence. 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.” (Citations and punctuation omitted.)
Smith v. Wal-Mart Stores,
Judgment reversed.