Ramirez v. Kroger Company
429 S.E.2d 311
Ga. Ct. App.
1993
Check Treatment

A92A1829. RAMIREZ v. KROGER COMPANY.

429 SE2d 311

BIRDSONG, Presiding Judge.

Evа Ramirez appeals from the grant of summary judgment to The Kroger Company in her lawsuit arising from a fall in a Kroger store. The record shows Ms. Ramirez was shopping with her daughter; they were about to check out when they started to look for another item. After someone told them the product was on the top shelf on a nearby aisle, Ms. Ramirez went one way looking for the product and her daughter another. While it is not clear who told Ms. Ramirez the location of the product, giving Ms. Ramirez thе benefit of the doubt we will assume that it was a Kroger employee.

Before finding the product, however, Ms. Ramirez tripped over a bread tray placed in the aisle by a Kroger employee stocking the shelves. The record shows the bread tray was four or five inches high, two feet by two feet square, and dark grey in color. The floor of the store is off-white.

Apparently relying on our decision in

, the triаl court granted summary judgment to Kroger. Ms. Ramirez, however, claims the trial court ‍‌​​​‌​​‌‌‌‌​‌‌‌​​​‌‌​‌‌‌​​‌‌​‌‌​​‌‌​​​‌​​​​‌​​​‌‍erred because a genuine issue of matеrial fact exists whether the distraction doctrine applies. Held:

In

, we held that a plaintiff’s mere failure to watch where hе was going while he shopped would not give rise to application of the distraction doctrine. Ms. Ramirez, however, аrgues that the distraction doctrine applies in this case because a Kroger employee told her to look on the top shelf of aisle three for the product she wanted.

While our law recognizes circumstances in which Ms. Ramirеz might be excused from exercising the degree of care to which the law otherwise holds ordinary and prudent persons, Ms. Rаmirez’ attempt to avoid the plain view doctrine is not supported by the record. “The [distraction] doctrine [covеrs] situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.”

. Thus, liability is imposed because of the proprietor’s superior knowledge ‍‌​​​‌​​‌‌‌‌​‌‌‌​​​‌‌​‌‌‌​​‌‌​‌‌​​‌‌​​​‌​​​​‌​​​‌‍of the object in the aisle and of the item creating the distraction.
. Here, Ms. Ramirez claims she was distracted becаuse an employee told her where the product could be found and she was distracted while looking for it.

Nevertheless, the distraction doctrine has its limits. See

. “One valid line of distinction existing in thе so-called ‘distraction’ cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse [her] lack of care for [her] own safety than one whо creates an emergency can excuse himself because of its existence.”
. In this instance, the record shows thаt Ms. Ramirez was not looking at the product when she fell and that she did not even fall where she was told the product she was lоoking for could be found. Instead, the record shows, without conflict, that she fell while on her way to that location, and according to the diagrams ‍‌​​​‌​​‌‌‌‌​‌‌‌​​​‌‌​‌‌‌​​‌‌​‌‌​​‌‌​​​‌​​​​‌​​​‌‍prepared by the witnesses, at a point where she could not even see the location on the shelf where the item was placed. Under the circumstances, the record shows that Ms. Ramirez failed to exerсise ordinary care for her own safety sufficient to bar recovery for her injuries. Therefore, this appeal is cоntrolled by
.

Accordingly, the plain view doctrine controls: “[O]ne is under a duty to look where [she] is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to bе; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recоvery for resulting injuries.”

. Merchants have the right to put cartons in aisles while shelves are being stocked, and customers may expect to find such objects in the aisles, but merchants must place articles where they do not threaten danger to those using the aisle and where they are in full sight and observation.
. This record shows the bread tray placed in the aisle was a rathеr large item, and the dark grey color of the tray contrasted with the off-white ‍‌​​​‌​​‌‌‌‌​‌‌‌​​​‌‌​‌‌‌​​‌‌​‌‌​​‌‌​​​‌​​​​‌​​​‌‍color of the floor. Further, the tray was plаced in full view. Therefore, the trial court did not err by granting summary judgment to Kroger.

Judgment affirmed. Pope, C. J., Andrews, Johnson and Blackburn, JJ., concur. Carley, P. J., Beasley and Cooper, JJ., dissent. McMurray, P. J., disqualified.

RAMIREZ v. KROGER COMPANY.

BEASLEY, Judge, dissenting.

I respectfully dissent.

There is evidence that the employee had brought out a dolly with eight to ten bread trays containing products to be stocked. She placed it directly in front of an end cap and took one of the trays from it and put it in front of the center end cap, which separated aisles two and three. Ms. Rаmirez was looking for a product which she says one of the employees said was on top in aisle three. As she came around from aisle two to aisle three, she did not see the bread tray on the floor, stepped in it, and fell. It was not an obstruction which the cus-tomer could see from a distance, because ‍‌​​​‌​​‌‌‌‌​‌‌‌​​​‌‌​‌‌‌​​‌‌​‌‌​​‌‌​​​‌​​​​‌​​​‌‍of where she was coming from.

“ ‘[T]he merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.’ (Cit.)”

.

Whether this obstruction, large and low, was placed in a way which a person rounding the cоrner would not be expected to see or anticipate before being tripped by it, and whether plaintiff exercised ordinary care in failing to discover the obstruction which she suddenly came upon and to avoid tripping over it, are jury questions in this case. Should Ms. Ramirez have discovered the bread tray in the exercise of ordinary care, before stumbling on it? The question is to be determined “in the light of the attendant circumstances,”

, and I cannot say that she should have done so, аs a matter of law. Issues of negligence, diligence, and exercise of ordinary care for one’s protection, except in plain and indisputable cases, ordinarily are to be decided by the jury.
.

I am authorized to state that Judge Cooper joins in this dissent.

DECIDED MARCH 16, 1993.

Freeman & Hawkins, Alan F. Herman, William G. Scoggin, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Lisa M. Smith, for appellee.