Appellant Piggly Wiggly Southern, Inc. appeals the order of the trial court denying it summary judgment in this slip and fall case filed by appellee/plaintiff Betty Jean James. Held:
Because it appears that appellee failed to adduce evidence from which a trier of fact could infer that appellant had superior knowledge of the claimed hazard, we conclude that the trial court erred in denying appellant’s motion for summary judgment.
Lau’s Corp. v. Haskins,
Appellee slipped and fell in a three-inch by five-inch puddle of reddish-colored ham juice, which was visible against the grocery store’s white floor.
At the time of the incident, the store was well lighted, and appellee had no trouble seeing. Appellee did not see the puddle because she was looking toward the milk department at the time of the incident; milk was the next item she was going to purchase. Voluntarily looking at merchandise or aisle signs displayed in a store does not constitute a distraction in a slip and fall case; one cannot claim the benefit of a self-induced distraction. Compare
McIntyre v. Pic &c. Drug Co.,
Further, appellee offered no reason to explain why she could not have seen the red liquid had she been looking where she was going. In fact, appellee testified she did not even look to see if a foreign object was on the floor after her fall. Rather, after her fall, store employees observed the reddish or pink substance on the floor where appellee had been. One employee testified, without refutation, that it looked as if appellee’s foot had gone through this reddish or pinkish liquid. Appellee was lying beside or over the liquid, and the employee could not see it until appellee was picked up from the floor. The meat manager who viewed the liquid was positive that it was ham juice. The store manager dust-mopped the area where appellee slipped only ten to fifteen minutes before the incident and stated that at that time the floor was clean and dry. Compare
Mazur v. Food Giant,
To state a cause of action in a slip and fall case, appellee/plaintiff must adduce evidence showing (1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.
Alterman Foods v. Ligón,
In this case, appellant met its burden under Lau’s Corp. There is no evidence in the record that appellant had actual knowledge of the spill; in fact, the evidence of the recent dust-mopping of the aisle tends to negate the existence of any constructive knowledge on the part of appellant. Even assuming without deciding that the employee’s presence near the location of appellee’s fall gives rise to an inference of constructive knowledge, appellee has not gone forward to point to specific evidence giving rise to a triable issue regarding whether in the exercise of reasonable care for her own safety, appellee still would have been unable to learn of the presence of the foreign substance causing her fall. See Lau’s Corp., supra at 491, 495. “Even if we assume [appellant] had actual or constructive knowledge of the hazard, the store would still be entitled to summary judgment if [appellee] knew about the hazard or should have discovered and avoided it, unless [appellant store] somehow prevented her from discovering it.” (Emphasis supplied.) Moore, supra at 521. Since appellee could have discovered the foreign substance in the exercise of ordinary care, her constructive knowledge of the substance at least equals if not exceeds that of appellant. In this regard, we find no evidence in this record that appellant prevented appellee from discovering the substance. Appellee has failed to go forward to point to the existence of specific evidence from which a trier of fact could conclude that appellant had superior knowledge of the substance. Accordingly, *848 we find that the trial court erred in denying appellant’s motion for summary judgment. Lau’s Corp., supra.
Judgment reversed.