On May 18,1994, Marvin Jones, plaintiff-appellant, and his boss entered a Krystal restaurant at 12:25 a.m., ordered, were served, and sat at a table. When they were ready to leave after about 20 minutes, they took their trash to a trash receptacle near the front counter.
As plaintiff approached the trash receptacle, his feet shot out from under him, and he fell on his back. The fall occurred at 12:45 a.m., when the restaurant was not busy. Immediately prior to the fall, there were several Krystal employees at the front counter near the trash receptacle behind the counter. During the 20 minutes that the plaintiff had been in the Krystal, several other customers had been served by employees, which required employees to come to the counter near the trash receptacle where the spill was observable by them.
Plaintiff slipped on cola and melting ice on the floor, which he did not see in front of the counter. Plaintiff did not know how long it had been there or where the cola and ice came from. He was not looking at the floor at the time of the fall and was not distracted; the lighting was normal. However, the plaintiff testified that, had he looked at the floor, he would not be able to see the cola on the floor, because the cola blended in with brown floor color. The floor was made of tiles of brown, tan, and white, which hid the substance on the floor from normal observation. During the 20 minutes that the plaintiff was in the Krystal, he did not see any employee either inspect or clean the floor. The color of the floor and the placement of the trash receptacle opposite the counter where customers came and went raise issues as to the need for more frequent inspections.
Plaintiff filed suit against The Krystal Company, defendantappellee (“Krystal”), in the State Court of Fulton County. Krystal answered and later filed a motion for summary judgment based only on plaintiff’s deposition and did not file any affidavits as to the maintenance schedule followed on that or any other day. Summary judgment was granted. Plaintiff timely filed his notice of appeal.
The plaintiff’s enumerations of error all assert that the trial court erred in granting summary judgment for different reasons. We agree, because the defendant failed to pierce the complaint and to show that no evidence could be produced by the plaintiff to create a jury issue on the essential issue of knowledge of the danger by the defendant. The evidence raised the issue of constructive notice for jury determination.
(a) This is a classic slip and fall case in which the defendant relies upon plaintiff’s deposition only and in which the plaintiff in response to the motion for summary judgment under OCGA § 9-11-
*103
56 (e) produces evidence that the floor was of such construction that the brown, tan, and white floor tiles made the spill unnoticeable by customers but increased the duty to inspect upon the employees. There are no depositions of the Krystal employees to show the extent of their knowledge of the spill; plaintiff failed to file the interrogatory responses of the defendant. Thus, the case turns on constructive knowledge only.
Lau’s Corp. v. Haskins,
(b) There was no evidence in the record regarding how or when maintenance was normally conducted. Therefore, constructive knowledge arising from the duty to inspect was not negated by evidence of a policy of regular inspection and testimony that no foreign substance had been found at the last inspection.
FoodMax v. Terry,
The record does show from plaintiff’s evidence that, during the 20 minutes that plaintiff was in the Krystal prior to his injury, he did not see any inspection or maintenance performed. “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.” (Citations and punctuation omitted; emphasis in original.)
Thompson v. Regency Mall Assoc.,
(c) Plaintiff and his -witness established that the floor camouflaged the ice and cola, so that it could not be seen by them. This insulates the plaintiff from the consequences of his failure to exercise ordinary care for his owm safety in not looking at the floor. Because plaintiff may not have been able to see the spill and to avoid it, he was -without knowledge or the ability to discover the danger, which satisfies the second prong of the
Alterman
standard. See
Alterman Foods v. Ligon,
supra at 623; see also
Robinson v. Kroger Co.,
Constructive knowledge of the owmer/occupier of the hazard arises by inference when employees were in the immediate vicinity and had the opportunity to discover and remove the hazard.
Drake v. Kroger Co.,
(d) However, constructive knowledge can also arise from the failure to exercise reasonable care in inspecting the premises to keep them safe.
Smith v. Winn-Dixie Atlanta,
“As to [the duty to keep the premises safe], the owner has a duty to exercise ordinary care in keeping the premises safe. (Cits.) This includes a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. (Cits.)
Barksdale v. Nuwar,
The facts and circumstances of this case give rise to a jury question regarding the reasonableness of the frequency of the inspections by the store owner as compared to food stores or even ordinary restaurants, i.e., non-fast food. This arises from the greater danger under the circumstances of this case. The reasons for the greater need for inspections in the exercise of ordinary care under the circumstances arise from the unique nature of fast food restaurants in *105 general, which is evident in this case. First, the time between inspections in this case was greater than ten minutes; second, the floor design camouflaged the presence of a foreign substance on the floor by its three-color floor tile pattern with grout separations; third, the dispensing of beverages and food to people in a hurry had increased the risk of spills; fourth, the trash receptacle was located in front of the counter, making it more likely that spills of beverages and food, or leaks in the trash receptacle, would allow beverages and ice to get on the floor and be seen by employees at the counter; fifth, the service counter generally would be continuously occupied by employees, who should be aware of any beverage or food spilled; sixth, the site of the fall was the area of greatest traffic in people coming or going; and seventh the area was small and as in the case of most fast food restaurants crowded during peak times in this small area, which would prevent customers being able to see the floor and cause distractions by the employees asking for orders. See Robinson v. Kroger Co., supra; Angel v. Varsity, Inc., supra at 508-509.
In this case, 20 minutes elapsed during which neither inspection nor cleaning occurred.
Strickland v. Howard,
supra at 308;
Rush v. Food Giant,
(e) Since there is no evidence in the record that Krystal employees conducted any inspection at any time on the evening in question or that an inspection and maintenance policy existed, and since the melting ice and cola were detectable in a reasonable inspection (because plaintiff was able to discover the spill after he searched for it), then it follows that, for purposes of the motion for summary judgment and a determination of constructive knowledge, a reasonable inspection by Krystal employees would have revealed the spill. Therefore, constructive knowledge can be inferred.
Daniel v. John Q.
*106
Carter Enterprises,
This case is distinguishable on both the law and facts from
Blake v. Kroger Co.,
(f) “On [defendant’s] motion for summary judgment [cit.], even assuming [defendant] had knowledge of the peril, it was [plaintiff’s] burden to come forward with specific evidence that [defendant’s] knowledge of the peril was superior, for that is the true ground of the proprietor’s liability.”
Minor v. Super Discount Markets,
While the plaintiff had the duty to come forward with evidence on summary judgment to create a material issue of fact on an essential issue under attack, i.e., knowledge of the danger by the defendant, on motion for summary judgment the plaintiff was entitled to all reasonable, favorable inferences drawn from the evidence. See
Lau’s Corp. v. Haskins,
supra at 491;
Padgett v. M & M Super Market,
The defendant cannot fail to produce evidence regarding its knowledge or lack of knowledge, without the risk that the presumption will arise that such evidence withheld was unfavorable. OCGA § 24-4-22 reads: “If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.” The legislative intent of OCGA § 24-4-22 was that a party should be penalized by the presumption for withholding evidence within their power to produce, and relying on evidence of an inferior nature.
Fields v: Yellow Cab Co.,
On motion for summary judgment, the defendant, as movant, must either present evidence that pierces plaintiff’s complaint as to an essential element or “must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Lau’s Corp. v. Haskins, supra at 495; Jackson v. Wal-Mart Stores, supra at 168. “The burden was upon [Krystal] as movant for summary judgment to establish no genuine issue remained as to its lack of constructive knowledge under both these theories either by adducing evidence, Food Giant [u Cook, supra], or by pointing out by reference to the record that there is an absence of evidence to support the case of [the plaintiff], the nonmoving party.” Jackson v. Wal-Mart Stores, supra at 168.
In this case, the defendant presented no evidence as to any inspection schedule or as to what the last inspection revealed; no employee testified. Spilling a drink and ice in front of the counter serviced by Krystal employees should have been seen or heard by them and would therefore give rise to a duty to inspect immediately and to clean up the spill. The plaintiff was entitled to have the presumption arise in his favor on summary judgment that defendant had actual knowledge of the spill or should have the inference of constructive knowledge. See
Shipley v. Handicaps Mobility Systems,
“In sum, we remind members of the judiciary that ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.”Robinson v. Kroger Co., supra at 748. This case fails to satisfy such high standard for the grant of summary judgment.
Judgment reversed.
Notes
A policy of inspection may be inadequate under the facts and circumstances of the case to guard against a known or foreseeable danger so that the existence of a policy does not automatically bar liability. Further, a reasonable and adequate policy of inspection may not have been, in fact, followed on that occasion.