KMart Corp. v. Jackson
KMart Corp. v. Jackson
Opinion of the Court
Marian Jackson sued KMart Corporation for injuries she sustained when she slipped in a pool of detergent and injured her back.
“The granting of . . . [a] directed verdict is a very, very grave matter.” (Punctuation omitted.) Svc. Merchandise v. Jackson, 221 Ga. App. 897, 898 (1) (473 SE2d 209) (1996). In directing a verdict, the trial court takes the case away from the jury and substitutes its own judgment for the combined judgment of the jury. Id. In reviewing the trial court’s denial of a motion for directed verdict, we construe the evidence most favorably to the party opposing the motion, and we will not reverse the ruling unless the evidence and all reasonable deductions therefrom demand a particular verdict. Id.; OCGA § 9-11-50 (a). “ ‘On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the “any evidence” standard.’ ” Kroger Co. v. Brooks, 231 Ga. App, 650, 651 (500 SE2d 391) (1998).
Viewed in a light most favorable to Jackson, the evidence showed that she visited a KMart store on July 3, 1991. While Jackson was turning into an aisle that contained cleaning supplies, her shopping cart slipped away. As Jackson grabbed for the cart, she began to slide in a puddle of yellow liquid detergent. Although Jackson never fell, she testified that she “stiffened up” and “felt like lightning was going through” her. After Jackson stopped, she turned around and saw a pool of yellow liquid that spanned the breadth of the aisle and approximately two-thirds of its length.
In order to recover for her injuries, Jackson must prove “(1) that [KMart] had actual or constructive knowledge of the hazard; and (2) that [she] lacked knowledge of the hazard despite the exercise of ordinary care.” (Punctuation omitted.) Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 509 (2) (496 SE2d 732) (1998). Here, KMart asserts that Kennis’ unequivocal, uncontradicted testimony that he did not know about the spill before Jackson slipped warrants a directed verdict. We disagree.
As an initial matter, the jury arguably could have found that KMart had actual knowledge of the spill notwithstanding Kennis’ testimony to the contrary. There were marked discrepancies between Kennis’ and Jackson’s testimony regarding the sequence of events. Compare Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (a) (512 SE2d 2) (where evidence uncontradicted, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists). Whereas Jackson testified that Kennis and the stock boy approached the spill together, Kennis testified that he was patrolling the store alone and sent for the stock boy only after he saw Jackson near the spill. The jury apparently believed Jackson that Kennis was with the stock boy. If the jury felt Kennis was not truthful, they could have concluded he had something to hide — namely, the reason he was with the stock boy. It is not unreasonable to infer that Kennis, the store manager, directed a stock boy to clean up the spill. We also note that KMart never identified the stock boy. KMart’s failure to identify him permits the jury to infer that he could have seen the spill, and that KMart should thus be charged with actual knowledge. See Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).
Moreover, even if KMart did not have actual knowledge, the jury was authorized to conclude that the store had constructive knowledge. Constructive knowledge can be established “in one of two ways: by evidence that an employee was in the immediate area of the hazard and could easily have discovered and removed it, or by showing that the owner did not use reasonable care in inspecting the premises.” Deloach v. Food Lion, 228 Ga. App. 393, 394 (491 SE2d 845) (1997).
Additionally, we cannot say that KMart established, as a matter of law, that it actually carried out its inspection program on the day Jackson slipped. The only evidence presented in this regard was Ken-nis’ testimony that he was “walking the store” and his estimate that he had “been in [the] vicinity” of the spill “probably 15 minutes, at least” before he saw Jackson. Kennis never stated that he was in the aisle where Jackson slipped, nor did he state that, when he was in the vicinity, he inspected the floor. Compare Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362) (1992) (manager testified that the floor was inspected routinely and clerk averred he inspected the area 30 minutes prior to patron’s fall).
“The existence of. . . constructive knowledge is a matter for the jury when there is evidence from which it may be inferred.” (Punctuation omitted.) Brooks, supra at 654 (1) (a). Although the evidence of KMart’s constructive knowledge was not overwhelming, we must remember that
[i]t is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.
Judgment affirmed.
There was some evidence suggesting the liquid on the floor was bleach rather than detergent.
KMart store manager Jim Kennis testified the aisle was approximately five feet wide and twenty-five feet long. According to Kennis’ estimation, the spill was only two feet in diameter.
Kennis testified that he was patrolling the store when he saw Jackson and that the stock boy was not with him when he approached her.
Dissenting Opinion
dissenting.
KMart Corporation was entitled to a directed verdict because there was an absence of evidence from which the jury could have reasonably concluded that KMart had actual or constructive knowledge of the hazard which caused Jackson to slip and suffer an injury.
There is no evidence in the record which could support a reasonable inference that KMart had actual knowledge of the spilled liquid before Jackson stepped in it. The only direct evidence on this issue was testimony from the KMart store manager that he was not aware of the spill until he saw Jackson standing in an aisle of the store next to a large, obviously visible spill of brightly colored liquid and asked her what happened. The manager recalled that the spill was about two feet long and two feet wide, while Jackson remembered that the spill was a bright yellow liquid covering the entire width of the aisle. The manager testified that, as part of KMart’s policy of keeping the premises clean and safe, he walked the store on a constant basis over the course of his shift, and that he discovered Jackson standing next to the spill while he was patrolling the store. The manager further testified that he had walked that vicinity of the store about 15 minutes prior to discovering the spill and Jackson standing next to it. Jackson testified that, when she saw the manager approach her, he was accompanied by a stock boy. The manager testified that there was no stock boy with him when he first discovered the spill. According to Jackson, neither the manager nor the stock boy had any cleaning equipment with them when they approached her. It was undisputed that a KMart stock boy later cleaned up the spill after it was discovered.
Based on this evidence, the majority finds that the jury could have reasonably concluded the manager was lying about the presence of the stock boy with him and then inferred that the lie was to conceal the fact that the manager was walking to the spill with the stock boy to direct the stock boy to clean up the spill — thus showing that KMart had prior actual knowledge of the spill. Majority op. p. 177. To draw these inferences from the bare fact that Jackson saw a stock boy with the manager is pure speculation. At best this evidence would support the mere possibility that KMart had prior actual knowledge of the spill. In fact, when Jackson’s counsel asked Jackson
Citing Straughter v. J H. Harvey Co., 232 Ga. App. 29, 30 (500 SE2d 353) (1998), the majority further concludes that KMart’s failure to identify the stock boy permits the jury to reasonably infer that the stock boy, and thus KMart, had prior actual knowledge of the spill. Majority op. p. 177. This conclusion is based on Straughter’s application of the rebuttable presumption created in OCGA § 24-4-22. Id. at 30-31. Section 24-4-22 provides that:
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.
By creating an adverse presumption of fact, this Code section imposes a penalty on a party for withholding evidence within the party’s power to produce and for relying on evidence of a weaker nature. Fields v. Yellow Cab Co. &c., 80 Ga. App. 569, 571 (56 SE2d 845) (1949); Speagle v. Nationwide &c. Ins. Co., 138 Ga. App. 384, 387 (226 SE2d 459) (1976). Without saying so explicitly, the majority concludes that it was within the power and control of KMart to identify and produce the stock boy and that its failure to do so gives rise to an adverse presumption of fact under OCGA § 24-4-22.This is a misapplication of the rule set forth in OCGA § 24-4-22.
There is absolutely no evidence that KMart knew of and withheld the identity of the stock boy. The manager testified that a stock boy cleaned up the spill after it was discovered, but that he could not recall his name. The record shows that Jackson’s injury occurred in 1991, that she did not file suit until 1996,
I also disagree with the majority’s conclusion that there was evidence in the record sufficient to show that KMart had constructive knowledge of the spill.
Constructive knowledge can be shown in either of two ways: (i) by presenting evidence that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard; or (ii) by presenting evidence that the substance was on the floor for such a time that (a) it would have been discovered had the proprietor exercised reasonable care in inspecting the premises and (b) upon being discovered, the substance would have been cleaned up had the proprietor exercised reasonable care in cleaning the premises.
Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (b) (512 SE2d 2) (1999). There was no evidence that an employee of KMart was in the immediate area of the hazard, so the issue as to constructive knowledge related to the second method of proof.
Under the second method of proving constructive knowledge, where the proprietor shows that it had a reasonable inspection procedure that was followed on the day of the injury, this is sufficient to show that reasonable care was exercised to keep the premises safe, and thus no constructive knowledge can be charged to the proprietor. Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362) (1992); Drake v. Kroger Co., 213 Ga. App. 72, 73 (443 SE2d 698) (1994). At the trial, the manager was specifically asked, “[H]ow did y’all go about making sure that the premises were clean and safe, the floors were safe for your customers?” The manager responded that, in addition to associates who were responsible for specific parts of the store, as manager he walked the entire store on a constant basis over the course of his shift, and that he had walked the vicinity of the store where Jackson was injured about 15 minutes prior to returning
Moreover, even if KMart had produced no evidence of adherence to reasonable inspection procedures on the day of the accident, the absence of any evidence showing how long the spill had been on the floor rendered it impossible for a jury to reasonably conclude that the spill had been on the floor long enough to havé been discovered by a reasonable inspection. If the spill had not been on the floor long enough to have been discovered by a reasonable inspection, then any failure by KMart to conduct a reasonable inspection could not be the cause of the accident.
On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
(Citations and punctuation omitted.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (2) (456 SE2d 93) (1995). As the Supreme Court held in Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991), in the context of summary judgment, a defendant who does not carry the burden of proof at trial is not required to produce evidence that its alleged negligence was not the proximate cause of the plaintiff’s injury. Rather, the absence of such evidence is sufficient to entitle the defendant to a favorable verdict. Id. Without any evidence as to how long the spill had been on the floor, it was a matter of pure speculation or conjecture for the jury to conclude that the spill had been there long enough so that the proximate cause of
No issue was raised on appeal as to application of the two-year statute of limitation in OCGA § 9-3-33, and the record is also silent on this issue.
Reference
- Full Case Name
- KMART CORPORATION v. JACKSON Et Al.
- Cited By
- 12 cases
- Status
- Published