K-Mart Corp. v. Spruell
328 S.E.2d 577
Ga. Ct. App.
1985
Check Treatment

*1 dissenting. Presiding Judge, my view the trial court. I would affirm I dissent respectfully 870), Co., Ins. v. Ga. Mut. Bailey Co., Fire & Cas. v. Occidental Dobbins fundamentally inconsistent they

31), because should be overruled Intl. In Perry v. Supreme Court’s spirit of the Perry me My reading of leads Co., 251 Ga. 709 dem. (5), may “insured,” by OCGA 33-34-2 as defined § to conclude pre of an additional $50,000 upon the tender coverage demand properly applicant insurance in which the mium “in a case v. Intl. Indem. Perry optional benefits.” rejection of signed execute a part, OCGA 33-34-2 supra. pertinent § “ pol named means, in to the insured addition states: ‘Insured’ household, in the same residing spouse and children icy, his the named residents of spouse insured or his of either the relatives vehicle, insured household, struck any pedestrian insured’s using occupying the insured vehicle other or his the named insured implied permission express (Emphasis supplied.) spouse.” term is used was an “insured” as the Buyce the claimant Since (Williams) did applicant (5), since the insurance 33-34-2 OCGA § benefits, I optional would rejection of properly signed execute a $50,000 the benefit of entitled to demand the claimant was hold premium due. upon the tender of the additional coverage in this Judge joins Deen Presiding I state that am authorized to dissent. v. SPRUELL.

69842. K-MART CORPORATION Birdsong, at Mary Spruell went to a K-Mart store

Slip and Fall. Ms. buy Upon some thread. enter- 10:00 a.m. on March 9:30 or store, appropriate aisles she walked ing the route, all counter, by the same with- the thread and exited purchased shiny highly as if were clean and out incident. She noted the floors She ob- in all K-Mart stores. polished, the same as she had observed point back at her Upon arriving or amiss. nothing served unusual color thread. purchased wrong she had origin, Ms. noticed exchange for the K-Mart store to make an She returned to the same proceeded the store and of thread. She entered right color approximately an hour earlier. This was same route she had walked later, 11:00 or 11:30 a.m. at about store, Spruell slipped on a wet walking through

While forming spot approximately substance diameter on the floor three inches in grapefruit). the size did not see She and did possible origin. thought might not have been a idea of it unpolished identify wax but could not the substance sight, spot, smell. touch or she stated not see the looking she doubted could have seen if she it. had been at *2 long spot She had how no idea had but been floor assumed spot very long. not been had not see K-Mart employees in the immediate area and did not have idea whether employees might K-Mart spot. have been aware of the of existence Spruell No one saw her nor observed fall. Ms. spot allowing that K-Mart was to remain the floor any length deny spot might of time but could not originated though expressed source, from customer or other spot might doubt that the have come from customer’s shoes. Opposed evidence, to this state K-Mart established through depositions procedure and affidavits that the routine in the particular portion day, store involved was to wax a floor each every with the entire floor waxed once week. The store Daily, “non-slip” proce- used what was advertised as a wax. routine required manager janitorial employees dure the assistant to meet with (who responsible every cleaning night) every were morning prior opening Thereafter, tour the entire store area. department department supervisors, each control to- gether spected. manager, separately with the assistant toured and in- During employees hours, store all store were instructed to vigilance any safety proce- maintain to observe hazard. routine These daily including Spruell’s dures were followed the date of Ms. fall. evidence, Based state K-Mart moved the trial summary Spruell court for resisted arguing there were conflicts of fact such as whether she went with the (she manager insisting store to the where she fell she did not accompany manager place manager whereas the stated she place found). him showed but on the floor could be The trial court concluded there were summary judgment. issues contested and denied K-Mart sought interlocutory appeal.

K-Mart The trial granted review, court issued a certificate of immediate and this court appeal. summary isIt this denial of that forms the sole issue before this court. Held:

We conclude that as crucial issue of there are facts, no contested failed has standard required summary judgment. to withstand a motion for

The uncontested evidence before the trial court showed that Ms. equal knowledge had at least the floor conditions. It cer- tainly did show a situation where K-Mart knew of situation situation) such a itself with acquaint measures failed take situation to ob- in an inferior Spruell that Ms. nor a situation Investors, Corporate Property McIntyre serve. (288 does or the customer involving substances “In cases has been him which caused if the substance dinarily know owner or attributable through negligence placed on the owner or owner. While the than the someone other to exercise his failure liable to invitees for occupier of land is owner can be held . . . safe care ‘[b]efore pres floors, produced for the conditions proof thereon, necessary is ence of would have known substance or show he was aware should Conaway v. Mc care.’ reasonable of its exercised Accord Boat Stores, Crory Inc., Thus it Rich’s, right v. instrumentality is known perilous is ‘when the said that a recov person injured and not known to the occupant owner or Reid, Co. v. Roebuck & ery permitted.’ is 532) (1974). Normally permitted a reasona is *3 premises maintaining and inspecting care in ble time exercise Hardy, App. Stores v. 138 Ga. Winn-Dixie them in a safe condition. Barn, Young, (226 (1976); Burger App. Inc. v. 131 Ga. 342 SE2d (207 234) (1974). However, (4) is under no proprietor 828 SE2d continuously patrol premises showing absence facts duty to Varsity, Inc., Angel . . premises usually . dangerous. (148 451) (1966). Knowledge part App. 507 SE2d the floor that could proprietor foreign is a substance on may or constructive. In patrons cause be either actual and may constructive knowl proprietor some cases the be held have proprietor ‘was in employee if the of the edge shows easily have dangerous area of the condition and could immediate Sharpton . . v. Great seen the and removed the hazard’ . substance (145 Tea 112 Ga. SE2d A&P may “In be he fails to exercise other cases safe condi- inspecting reasonable care type To a action in the latter case the tion. sustain cause of length a foreign must show that the substance was for to the defendant. knowledge imputed time sufficient for of it to be Hardy, supra. Winn-Dixie Stores

. only must show that defendant “[N]ot . foreign . . cus- knowledge presence of the ‘[t]he safety . . . his must tomer must exercise care for own [h]e amounting to use of in a reasonable measure ordi- make all senses might those cause nary avoiding things care in discovering hurt to him.

“Thus order to state a cause of action a case plaintiff alleges that due to an act of negligence defendant slipped fell on foreign floor, substance on the defendant’s (1) plaintiff must show had actual or constructive (2) knowledge substance and was knowledge without of the substance or some reason attributable prevented the defendant was from discovering substance.” (272 620, 327). Alterman Foods v. Ligon, 246 Ga. 622-23 SE2d us, the case before Ms. Spruell averred sole proximate cause of injuries due a “defect” on floor, composed substance and that the present K-Mart, because of the negligence of with rea sonable precaution K-Mart could been aware of its existence. spite of her allegations, Spruell presented no evidence a defec (as tive floor opposed thereon), to a substance use evidence of the quality a material or present of material hazard, that could or that K-Mart actually knew of the condition either or constructively did not have or utilize safety precautions. efficient and effective When motion is made supported, an adverse party may rest upon mere denials in pleadings, but must set forth specific affidavit or otherwise showing there is a genuine done, issue for trial. If this is judgment, proper, otherwise shall be entered party. Bradley deficient Bank, 821, Tattnall 657); 170 Ga. 825-827 Food Mock, 820). Fair Such is the situ ation which confronts us in this case. It follows that the trial court erred finding viable issues of in failing case and to grant K-Mart summary judgment. Summer-Minter & Assoc. v. Giordano, 173); Corp., Holland v. Sanfax

Judgment Sognier, J., reversed. Carley, J., concurs. concurs specially.

Decided

Guerry Moore, R. for appellant. Thomason,

Larry W. appellee. Judge, concurring specially. Carley, I am agree constrained to majority that, of this case appeal, as shown record on Alterman Foods Ligon, 327) (1980) 246 Ga. 620 mandates entitlement However, to recently, I do note that Supreme fully explained Ligón Court has more in so as a matter of law in favor of defendant preclude to in used of materials application negligent evidence of there is “some Co.,& Sears, Roebuck Martin treating the floor.” Martin, testified 174) petitioner “the However proper with years’ experience, familiar, forty on based that she was opinion floors, her that offered polishing methods of which she was able of wax application her due to excessive fall was & Roebuck Martin the floor.” to as she walked across feel Martin, testimony of Ms. Co., supra, Even under is not “unpolished wax” have been “spot” might case that Supreme applied Alterman as the test of sufficient in Martin. Court BANK & TRUST RAILROAD

69051. DANIEL GEORGIA et al. COMPANY (328 SE2d 9, 1983, against Georgia Rail- plaintiff brought suit On March “bank”) (hereinafter Company & referred to as the road Bank Trust pros- malicious seeking damages 12 merchants 31, 1979, August on complaint, alleged In her that plaintiff ecution. that, thereafter, purse; the unknown person pilfered her unknown name; person checking plaintiff’s at the bank opened a account person merchant defen- the unknown issued checks bank; dants; that when the checks that the checks were drawn on merchants; bank, the checks to the presented returned thereupon criminal the merchants caused 18 warrants issue plaintiff, “issuing worthless against the offense charging checks”; knew known that that the merchants or should have checks; on issue the was arrested warrants; that, 1981, pursuant September in each criminal prosequi nolle entered the record It was further brought against plaintiff. cases open permitting bank the unknown discourage plaintiff’s name, failing the merchants account and, arrest, plaintiff’s from taking out the criminal warrants after criminal failing encourage the defendants to dismiss the warrants. defendants, regard plaintiff alleged they With the merchant checks, out the warrants negligently accepted negligently took knowing maliciously prosecuted complaint issue checks. Defendants answered answer, thereof. In its the bank and denied the material discovery, the Following of limitation defense. also asserted statute