ROBINSON v. KROGER COMPANY
S97G0065
Supreme Court of Georgia
December 3, 1997
268 Ga. 735 | 493 SE2d 403
BENHAM, Chief Justice.
Judgments affirmed. All the Justices concur.
DECIDED NOVEMBER 24, 1997.
Leitner, Williams, Dooley & Napolitan, David W. Noblit, Robert P. Manning, for appellants.
John R. Emmett, Davis & Kreitzer, John W. Davis, Jr., for appellees.
S97G0065. ROBINSON v. KROGER COMPANY.
(493 SE2d 403)
BENHAM, Chief Justice.
Invitee Henrietta Robinson sustained an injury to her knee in a Kroger supermarket when she slipped on a foreign substance on the store‘s floor and fell. The trial court granted summary judgment to Kroger in Mrs. Robinson‘s negligence action against the store, and the Court of Appeаls affirmed, ruling that the proximate cause of Mrs. Robinson‘s fall was her failure to exercise ordinary care for her personal safety. Robinson v. Kroger Co., 222 Ga. App. 711 (476 SE2d 29) (1996). We granted certiorari to examine “the proper standard for determining whether the plaintiff in a ‘slip and fall’ premises liability case has exercised ordinary care sufficient to prevail against a motion for summary judgment.” We reverse the judgment of the Court of Appeals and hold that an invitee‘s failure to exercise ordinary care for personal safety is not established as a matter of law by the invitee‘s admission that she did not look at the site on which she subsequently placed her foot. Rather, the issue is whether, taking into account all the circumstances existing at the time and placе of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.
1. The case law which has developed over the years in Georgia “slip and fall” premises liability appeals is pendulum-like. In 1980,
Since 1980, the decision in Alterman Foods has been cited repeatedly in appellate court decisions in “slip and fall” premises liability cases, and defendants have successfully mounted two-pronged attacks against plaintiffs by asserting that (1) the defendant lacked the requisite actual or constructive knowledge of the hazard, and (2) the plaintiff had actual knowledge of the hazard equal or superior to that of the defendant or, would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety. In light of the requirement that plaintiff establish both the defendant‘s knowledge and the lack of plaintiff‘s knowledge, a defendant was entitled to summary judgment, the appellate courts ruled, when either the first or second Alterman prong was not established. Weighted down by the conjunctive Alterman analysis, the pendulum made a dramatiс swing in the other direction as it became the rare case which escaped summary adjudication.
For several years after the Alterman decision, the focus of the
When the injured invitee attemptеd to explain that he fell due to a hazard of which he was not aware, the focus of the appellate analysis shifted from the plaintiff‘s voluntary exposure of self to the hazard to another aspect of the plaintiff‘s negligence — the plaintiff‘s purported failure to employ all senses in a reasonable measure to discover and avoid that which might cause personal injury.2 Because either of the two prongs of Alterman Foods was sharp enough to impale a plaintiff‘s case, resolution of a defendant‘s knowledge of the hazard‘s existence was oftentimes pretermitted in favor of an inquiry as to whether the injured plaintiff had fulfilled the invitee‘s duty to exercise ordinary care for personal safety. In Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991), it was determined that an invitee who did not see the hazard which caused the fall had failed, as a matter of law, to exercise the requisite ordinary care for personal safety when the invitee admitted he/she would have seen the hazard had the invitee been looking at the floor, and the invitee presented no evidence that the store was responsible for the invitee‘s failure to see the hazard. Thereafter, plaintiffs were repeatedly rebuffed based upon their admission that they would have seen the hazard had they been looking at the site where they placed their foot. See, e.g., Piggly Wiggly Southern v. James, 225 Ga. App. 846 (485 SE2d 223) (1997); Nails v. Food Lion, 221 Ga. App. 405 (471 SE2d 327) (1996) wherein it was held that “Nails’ apparent failure to watch where she was walking forecloses her recovery . . .“; Baker v. Winn Dixie, 219 Ga. App. 513 (465 SE2d 710) (1995); Bruno‘s v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994); Boykin v. North, 218 Ga. App. 435 (461 SE2d 598) (1995); Vermont American Cоrp. v. Day, 217 Ga. App. 65, 67 (456 SE2d 618) (1995); Piggly Wiggly Southern v. Weathers, 216 Ga. App. 12 (453 SE2d 74) (1995); Moore v. Winn Dixie Stores, 214 Ga. App. 157 (2) (b) (447 SE2d 122) (1994); J. H. Harvey Co. v. Kinchen, 213 Ga. App. 868 (446 SE2d 218) (1994); Winn Dixie v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994); Minor v. Super Discount Markets, 211 Ga. App. 123 (438 SE2d 384) (1993); J. H. Harvey
We granted a writ of certiorari to examine the appellate decisions which have as their crux a determination as a matter of law that an invitee failed to exercise ordinary care for personal safety. As a group, these rulings are suspect for several reasons. First, by routinely adjudicating as a matter of law questions of the plaintiff‘s and defendant‘s negligence, proximate cause, and the exercise of ordinary care, these decisions have made commonplace what is, in reality, an unusual circumstance in tort law, since
[a]s a general proposition issues of negligence, contributory negligence and lack of ordinary care for one‘s own safety are not susceptible of summary adjudication . but should be resolved by trial in the ordinary manner. [Cit.] The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. [Cit.]
Second, these decisions hаve placed in the limelight an invitee‘s duty to exercise reasonable care for personal safety and, in so doing, have relegated to the shadows the duty owed by an owner/occupier to an invitee. One who owns or occupies land and “by express or implied invitation, induces or leads others to come upon his premise for any lawful purpose, . . . is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”
An invitee is charged with exercising ordinary care for personal safety and using ordinary care to avoid thе effect of the owner/occupier‘s negligence after that negligence becomes apparent to the invitee or in the exercise of ordinary care the invitee should have learned of it. In the exercise of ordinary care, the invitee must use all senses to discover and avoid hurtful things. Alterman Foods v. Ligon, supra, 246 Ga. at 623. “The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces want[s] of such prudence as the ordinarily careful person would use in a like situation.” Wynne v. Southern Bell Tel. &c. Co., supra, 159 Ga. at 629. The invitee is not bound to avoid hazards not usually present on the premises and which the invitee, exercising ordinary care, did not observe (King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 (84 SE2d 686) (1954)), and the invitee is not required, in all circumstancеs, to look continuously at the floor, without intermission, for defects in the floor. Food Giant v. Cooke, 186 Ga. App. 253 (2) (366 SE2d 781) (1988); Fletcher v. Family Center, 169 Ga. App. 376 (2) (312 SE2d 856) (1983); Chotas v. J. P. Allen & Co., 113 Ga. App. 731 (149 SE2d 527) (1966). See also Amear v. Hall, 164 Ga. App. 163 (2) (296 SE2d 611) (1982) (“[A]n invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects. [Cit.]“); Ellington v. Tolar Constr. Co., supra, 237 Ga. at 238 (“looking continuously in all directions is not required in all circumstances [to exercise ordinary care for personal safety]“), and Chaves v. Kroger Co., supra, 213 Ga. App. 348. The invitee “is not barred of a recovery simply because by extreme care on his part it would have been possible for him to have discerned the articles negligently left in the aisles or passageways customarily used by the store patrons at the merchant‘s tacit invitation.” King Hardware Co. v. Teplis, supra, 91 Ga. App. at 15.3 What constitutes a reasonable lookout depends on all the circumstances at the time and place. Ellington v. Tolar Constr. Co., supra, 237 Ga. at 238.
Third, the “plain view” doctrine has undergone radical transmutation in recent appellate decisions. The doctrine is “that one is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be. . . .” Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 474 (249 SE2d 276) (1978). It originally was applied to a “clearly visible” pile of dirt in the road in Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351 (94 SE2d 612) (1956), and has since been applied to a display of merchandise stacked on the floor near a customer service island (Carr v. Sears, Roebuck & Co., 226 Ga. App. 768 (487 SE2d 415) (1997)); a broom in a grocery store (McCrary v. Bruno‘s, 219 Ga. App. 206 (464 SE2d 645) (1995); a common defect in pavement (Papera v. TOC Retail, 218 Ga. App. 777 (463 SE2d 61) (1995); Piggly Wiggly Southern v. Bennett, 217 Ga. App. 496 (458 SE2d 138) (1995)); a box containing boxes of trash bags in a store aisle (Vermont American Corp. v. Day, supra, 217 Ga. App. 65); a 2’ x 2’ x 5” bread tray placed in a grocery store aisle (Ramirеz v. Kroger Co., 207 Ga. App. 830 (429 SE2d 311) (1993)); a 12” x 18” x 5 1/2” box of canned goods in a grocery store aisle (Riggs v. Great A & P Tea Co., 205 Ga. App. 608 (423 SE2d 8) (1992)); and a 4 1/2’ x 2’ x 5 1/2’ merchandise transporter in a grocery store aisle (Kres v. Winn-Dixie Stores, 183 Ga. App. 854 (360 SE2d 415) (1987). However, it has been used in such a manner as to remove any reasonable limits on its application when it has repeatedly been held that a hazard which was not seen by the invitee before the fall but which could have been seen by the invitee had the invitee looked at the floor is a “plainly visible defect” in “plain view,” and the failure of the invitee to see such a hazard bars recovery under the “plain view” doctrine. See, e.g., McDonald‘s Restaurants of Ga. v. Banks, 219 Ga. App. 667, 672 (466 SE2d 240) (1995) (Andrews, J., dissenting); Piggly Wiggly Southern v. Brown, 219 Ga. App. 614, 619 (468 SE2d 387) (1995) (Andrews, J., dissenting); and the cases cited therein. See alsо cases wherein the appellate court ruled that, as long as the invitee‘s view was not obstructed, a hazard, no matter its size, was in “plain view” and precluded recovery if the hazard could have been seen had the invitee looked at the ground. E.g., Steele v. Rosehaven Chapel, 223 Ga. App. 523 (478 SE2d 596) (1996) (lone step at exit of funeral home); Wiley v. Family Dollar Store, 208 Ga. App. 461 (430 SE2d 839) (1993) (a one-inch seam between asphalt ramp leading to store and sidewalk); Emory Univ. v. Duncan, 182 Ga. App. 326 (355 SE2d 446) (1987) (a one-inch rise in concrete). However, that one inspecting a post-fall scene can observe a hazard from a standing position is not dispositive of whether or not the injured invitee was exercising ordinary care for personal safety before the fall. Thompson v. Regency Mall, 209 Ga. App. 1, 3 (432 SE2d 230) (1993). The “plain view” doctrine is the equivalent of the “constructive knowledge” aspect of voluntary negligence on the part of the plaintiff. Voluntary negligence is applicable when the invitee knew or should have known of the hazard and proceeded (see p. 737, supra), and the “plain view” doctrine is applied to a hazard in plain view at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall. Even though the invitee had no actual knowledge of the hazard before being injured, the invitee should have known of the hazard‘s presence.
In light of the above, we conclude that we must disapprove of the appellate decisions which hold as a matter of law that an invitee‘s failure to see before falling the hazard which caused the invitee to fall constitutes a failure to exercise ordinary care. We also take issue with the Court of Appeals’ holding in the case at bar that an invitee fails to exercise ordinary care for personal safety as a matter of law when the invitee admits she failed to look at the location where she subsequently placed her foot. Demanding as a matter of law that an invitee visually inspect each footfall requires an invitee to look continuously at the floor for defects, a task an invitee is not required to perform (Food Giant v. Cooke, supra) since the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe for the invitee and continues to exercise such care while the invitee remains on the premises. As reasonable minds can differ, taking into account all the circumstances at the time and place of the incident (Ellington v. Tolar Constr. Co., supra), the evidence does not plainly, palpably, and indisputably lead to the conclusion that the invitee‘s placement of her foot on a site she had not previously inspected visually is an act which is a “‘want of such prudence as the ordinarily careful person would use in a like situation.‘” Wynne v. Southern Bell, supra, 159 Ga. at 629. Accordingly, we reverse the Court of Appeals’ decision which affirmed the trial court‘s grant of summary judgment to the owner/occupier on the ground that the invitee as a matter of law did not exercise ordinary care for her personal safety.
2. The decision to disapprove several recent slip-and-fall appellate decisions does not, however, end our inquiry, as our examination
(a) Stated succinctly, the distraction doctrine holds that “one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement оr when the attention has been necessarily diverted. . . .” Glover v. City Council of Augusta, 83 Ga. App. 314, 316 (63 SE2d 422) (1951). See also Alterman Foods v. Ligon, supra, 246 Ga. at 623. Application of the doctrine has the effect of excusing an invitee from exercising the otherwise required degree of care because of the circumstances created by the purported distraction. Stenhouse v. Winn Dixie Stores, supra, 147 Ga. App. at 475. “[T]his 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.” Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688) (1962). See also Yeaple v. Grand Union Co., 207 Ga. App. 15 (427 SE2d 13) (1992); Stenhouse v. Winn Dixie Stores, supra, 147 Ga. App. at 475. Thus, when an invitee asserts that the hazard was not seen before the injury because the invitee‘s attention was diverted, the examination of whether the inviteе exercised ordinary care for personal safety must take into account the circumstances surrounding the presence of the diversion. If the distraction has as its source the invitee, the invitee “can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.” Redding v. Sinclair Refining Co., supra, 105 Ga. App. at 379. A plaintiff‘s release of a cart was deemed a “self-induced” distraction in Sullenberger v. Grand Union Co., 201 Ga. App. 194 (410 SE2d 381) (1991), as was a plaintiff‘s conversation with companions (Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260 (427 SE2d 547) (1993)), and a tennis player‘s preoccupation with the game underway. Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210 (335 SE2d 451) (1985). Looking at displayed merchandise or a storе‘s aisle signage has been repeatedly found to constitute a self-induced distraction (Piggly Wiggly Southern v. James, supra, 225 Ga. App. 846; Moore v. Kroger Co., 221 Ga. App. 520 (471 SE2d 916) (1996); McIntyre v. Pic & Save Drug Co., 213 Ga. App. 58 (443 SE2d 874) (1994); Foodmax v. Terry, supra, 210 Ga. App. 510; Riggs v. Great A & P Tea Co., supra, 205 Ga. App. 608. But see Dill‘s Food City v. Johnson, 219 Ga. App. 654 (466 SE2d 250) (1995); Stenhouse v. Winn Dixie, supra, 147 Ga. App. 473; and Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 429 (263 SE2d 171) (1979), where the appellate court noted that the merchant “should be cognizant that the usual shopper travels the aisles with his attention
However, “[w]here the distraction comes from without, and is of such nature as naturally to divert the [invitee], and also of such nature that the defendant might naturally have anticipated it, the result is different.” Redding v. Sinclair Refining Co., supra, 105 Ga. App. at 379. See, e.g., Glover v. City Council of Augusta, supra, 83 Ga. App. 314 (store window display a distraction to pedestrians), and Magee v. Federated Dept. Stores, 187 Ga. App. 620 (371 SE2d 99) (1988), and Shackelford v. DeKalb Farmer‘s Market, 180 Ga. App. 348 (349 SE2d 241) (1986), which each held that a pedestrian‘s possible confrontation with vehicular traffic could constitute a distraction.
In 1994, this Court issued Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994), in which the court, without mentioning the distraction doctrine, held that invitee Barentine presented evidence of the exercise of reasonable care for persоnal safety when he offered a specific reason for not looking at the floor at the site where he slipped and fell. Barentine explained that, while he was walking toward the lone open cash register, he was looking at the attendant who was not standing at the cash register so that he could advise him he was ready to make his purchase. Consequently, he did not see the puddle of clear liquid into which he placed his foot and fell. Citing Food Giant v. Cooke, supra, 186 Ga. App. 253, this Court ruled that “[t]his testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter.” Barentine, supra, 264 Ga. at 225. Since the Barentine decision, the Court of Appeals has taken divergent paths when discussing the distraction theory in conjunction with an invitee‘s exercise of ordinary care for personal safety. When an employee-generated conversation is proffered as the reason why the invitee was not looking at the floor, the plaintiff has been found, citing Barantine, to have presented evidence of the exercise of reasonable care and thereby precluded summary judgment for the defendant. See J. H. Harvey, 219 Ga. App. 697; Sheriff‘s Best Buy v. Davis, 215 Ga. App. 290. Recently, the Court of Appeals determined that any conversation between a customer and an employee, regardless of who initiated communication, is some evidence of the invitee‘s exercise of ordinary
On the other hand, the appellate court took a more expansive view of Barentine in Ferguson v. Scadron, 227 Ga. App. 614 (489 SE2d 873) (1997), and ruled that the invitee‘s offer of a spеcific reason for not looking where he was going, regardless of the involvement of a store employee, created a jury question, since it was a circumstance where “the exercise of reasonable care demands a focus away from the floor.” Id. at 616. But see Freyer v. Silver, 227 Ga. App. 253 (488 SE2d 728) (1997) (McMurray, J., dissenting), and Parks-Nietzold v. J. C. Penney, 227 Ga. App. 724 (490 SE2d 133) (1997) (McMurray, J., dissenting), where the proffer of a plausible reason why the invitee was not looking at the floor did not preclude summary judgment in favor of the defendant.
We take this opportunity to clarify our holding in Barentine: when an invitee explains that he was not looking at the location of the hazard which caused injury because of something in the control of the owner/occupier, which purported distraction is of such a nature that the defendant might have anticipated that it would divert an invitee‘s attention, e.g., the conduct of a store employee, the premises construction or configuration, or a merchandise display of such a nature that its presence would not have been anticipated by the invitee, the invitee has presented “some evidence that [the invitee] exercised reasonable care for [the invitee‘s] own safety. . . .” Barentine v. Kroger, supra, 264 Ga. at 225. It will then be for the factfinder to determine if the injury sustained was proximately caused by the defendant‘s negligence and whether the plaintiff failed to exercise reasonable care for personal safety.
(b) Our review of the recent developments in slip-and-fall case law has also led us to re-examine certain language in Alterman Foods v. Ligon, specifically thе portion of that opinion which states that, “in order to state a cause of action,” an invitee must show that an owner/occupier had actual or constructive knowledge of the foreign substance and that the invitee was without knowledge of the foreign substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. 246 Ga. at 623. In effect, that statement placed upon the plaintiff the onus of proving both the defendant‘s knowledge and the plaintiff‘s lack of negligence in order to stay in court. At the time Alterman Foods was decided and for a decade thereafter, the unusually heavy burden with which the plaintiff was saddled was not overwhelming since a defendant moving for summary judgment had the burden of prоducing evidence which negated at least one essential element of the plaintiff‘s case. Id. at 625. See also Begin v. Ga. Championship Wrestling, supra, 172 Ga. App. 293; Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (2) (170 SE2d 737) (1969). As a result, a defendant who
The rule has been, and continues to be, that on motion for summary judgment, regardless of which party would have the burden of proof at trial, if a material fact has been alleged in the complaint, can be reasonably drawn from the pleadings, or has been raised by the evidence placed in the record by any party, the defendant-movant has the burden of proving the non-existence of that fact and it is not until the movant carries its own burden that the burden then shifts to the plaintiff-respondent. [Cits.]
After this Court‘s decision in Lau‘s Corp v. Haskins, supra, 261 Ga. 491, the weighty burden placed on slip-and-fall plaintiffs by Alterman Foods was made manifest. Under Lau‘s Corp., a defendant movant who did not bear the burden of proof at trial need no longer “affirmatively disprove the nonmoving party‘s case; instead, the burden on the moving party may be discharged by pointing out by reference to the . . . record that there is an absence of evidence to support the nonmoving party‘s case.” Id. at 491. Since the defendant had only to point to the deficiency in the plaintiff‘s case and no longer had to affirmatively negate by the presentation of evidence an essential element of the plaintiff‘s case, in order for a plaintiff to survive a motion for summary judgment, the plaintiff was required to establish both the defendant‘s knowledge of the foreign substance and the plaintiff‘s lack of negligence either before the defendant moved for summary judgment or in response to that motion. See, e.g., Kroger Co. v. Farley, 225 Ga. App. 766 (484 SE2d 742) (1997); Coffey v. Wal-Mart Stores, supra, 224 Ga. App. 824; Blake v. Kroger Co., 224 Ga. App. 140 (480 SE2d 199) (1996), wherein it was stated, “Under Lau‘s Corp., the defendant proprietor has no burden whatsoever on summary judgment to produce evidence to negate the plaintiff‘s theory of recovery“; Brown v. Amerson, 220 Ga. App. 318 (469 SE2d 723) (1996); J. H. Harvey Co. v. Kinchen, supra, 213 Ga. App. 868. Because the Lau‘s Corp. decision modified the practical application of the Alterman Foods’ standard, we must modify Alterman Foods somewhat in order to regain balance in the allocation of the burden of proof.
A slip-and-fall plaintiff need not necessarily produce evidence whiсh disproves the plaintiff‘s negligence to withstand a motion for
In sum, we remind members of the judiciary that the “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. We hold that an invitee‘s failure to exercise ordinary care is not established as a matter of law by the invitee‘s admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation. We further hold that an invitee presents some evidence of the exercise of reasonable care for personal safety when the invitee explains that something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality caused him not to look at the site of the hazard. Finally, we reaffirm that, in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or
Judgment reversed. All the Justices concur, except Fletcher, P. J., who concurs in Division 1 and in the judgmеnt.
HUNSTEIN, Justice, concurring.
While I fully join the majority‘s opinion, I would prefer to resolve slip and fall cases on the basis of pure comparative negligence. However, I recognize that resolution would require legislative change, which I urge the General Assembly to consider.
DECIDED DECEMBER 3, 1997.
The Rushing Firm, F. Joseph Rushing, for appellant.
Webb, Carlock, Copeland, Semler & Stair, James R. Doyle II, Douglas A. Wilde, for appellee.
Reynolds & McArthur, Charles M. Cork III, Kunes & Kunes, G. Gerald Kunes, amici curiae.
BENHAM
CHIEF JUSTICE