Walmart Stores East L. P. v. Benson.
Walmart Stores East L. P. v. Benson.
Opinion
*74 In this premises liability action, Catherine Benson sued Walmart Stores East L. P. and Scott Ferrell in the State Court of Gwinnett County seeking damages for injuries sustained when she slipped and fell while shopping at a Walmart. Following this Court's grant of their application for interlocutory appeal, Walmart and Ferrell appeal from the trial court's denial of their motion for summary judgment contending, among other things, that there is no evidence that Walmart had superior knowledge of any hazardous condition and that there is no evidence that Ferrell, a store manager, directed, participated, or cooperated in any act leading to Benson's fall. We *75 reverse for the reasons set forth below.
A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant [or denial] of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. Our review of the grant or denial of a motion for summary judgment is de novo.
(Citations and punctuation omitted.)
Johnson v. Omondi
,
So viewed, the evidence shows the following. On the afternoon of July 5, 2013, Benson slipped and fell in a Walmart in Rome, Georgia. It had been raining earlier in the day. Benson entered the store, where the floor was dry, walked down a nearby aisle, and slipped. According to Benson, one of her feet went forward, and the other back, and she did a "split," falling down on one knee and then backward onto the floor. She did not see anything on the floor before she fell. She testified, however, that she landed in a "clear ... liquid" substance and that her pants were wet after she fell.
Walmart did not have camera coverage of the exact location of Benson's fall. The record contains surveillance video footage showing the vestibule and portions of the aisles near the entrance of the store from approximately an hour before, and shortly after, Benson's fall. On the video, Benson can be seen entering the store, walking across the floor mats and past the caution cones placed inside the entrance, and then down an aisle to her right, where she fell off view of the camera.
The evidence also showed that the Walmart location was a large commercial establishment selling groceries, among other products, with a high volume of customer traffic. Walmart's policy required its employees to keep a look out for and to immediately address spills or other hazards, and its maintenance personnel were trained to circulate through the store and perform any necessary cleaning and maintenance. On rainy days, the store may place caution cones at the front end of the store and place mats at the front entrance to help prevent slip and fall accidents. Employees were also trained to *76 "dry mop" the vestibule and aisles as necessary. According to the testimony of a Walmart *28 manager then employed at the store at issue, these policies were in effect and being followed on the date of Benson's fall.
The surveillance video shows Walmart employee Lena Brand beginning to mop the aisle where Benson fell 24 to 26 minutes before the fall. Brand's testimony showed that on rainy days it was her normal practice to dry mop the vestibule as well as the aisle where Benson fell. The surveillance video, consistent with Brand's testimony, shows her repeatedly dry mopping the vestibule and nearby aisles, sometimes going out of view of the camera in the process. According to Brand, she inspected for hazards while dry mopping, and, if there had been any clear liquid on the floor, she would have seen it and mopped it.
[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.
Robinson v. Kroger Co
.,
Stated another way,
the true basis for liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. In order to recover, the plaintiff must prove that the defendant had superior knowledge of a dangerous condition that was unknown to the plaintiff and that caused the plaintiff's injuries.
(Citations and punctuation omitted.)
Adamchick v. Cracker Barrel Old Country Store,Inc.
,
1. Walmart contends that the trial court erred in denying its motion for summary judgment because there is no evidence that it had superior knowledge of any hazardous condition. As Benson conceded below, there is no evidence that Walmart had actual *77 knowledge of the alleged hazard. If a defendant does not have actual knowledge of the alleged hazard,
the case turns on whether constructive knowledge of the alleged hazard can be imputed to the owner/occupier. Constructive knowledge can be established in two ways. First, constructive knowledge can be demonstrated by showing that an employee was positioned in the immediate vicinity and had the opportunity and means to discover and remove the hazard. Second, constructive knowledge may be shown by evidence that the alleged hazard was present for such a length of time that it would have been discovered had the proprietor exercised reasonable care in inspecting the premises.
(Citation and punctuation omitted.)
Blocker v. Walmart Stores, Inc.
,
(a) The evidence does not show, nor does Benson contend, that there was any Walmart employee in the area who had the opportunity and means to remove the alleged hazard after the aisle was mopped by Brand. Benson argues, however, that a jury could conclude that Brand caused or exacerbated the hazardous condition. See generally
Gilbert v. Auto. Purchasing Serv.
,
[S]ummary adjudication as to constructive knowledge arising from the duty to inspect is not authorized absent plain, palpable and undisputable proof that customary inspection procedures or cleaning practices were in place, were actually followed and were adequate to guard against known or foreseeable dangers at the time of the patron's alleged injuries.
Burnett v. Ingles Markets
,
Benson maintains that whether Brand mopped the area where she fell remains an issue of fact because that portion of the aisle is not shown on the video. However, in light of the testimony of Brand and the manager, in addition to video showing Brand mopping down the aisle in the direction where Benson fell, the evidence shows only that Brand inspected and mopped the area of the fall. Benson also argues that, even if the floor where she fell had been inspected and mopped less than a half hour beforehand, the reasonableness of Walmart's inspection procedure remains an issue for the jury because the fall occurred in a high traffic area of the store where groceries were located. As we have said, "[t]he nature of a supermarket's ... business creates conditions which cause slip and falls to occur with some frequency. Under those circumstances, we have held that premises owners have a duty to inspect with greater frequency." (Citation and punctuation omitted.)
Food Lion, LLC v. Walker
,
Here, the origin and composition of the clear liquid on which Benson slipped is unknown. There is, however, no evidence that the alleged hazard was associated with any of the products sold on the
*79
premises or that Walmart was then aware of a specific hazard to its customers other than that which might be posed by an accumulation of rainwater. See
Food Lion
, supra (where plaintiff slipped on a mixture of water and chicken blood, and defendant supermarket knew its fresh chicken was on sale and that it inevitably dripped a mixture of blood and water on the floor, an issue of material fact remained as to whether the supermarket's inspection procedures were reasonable notwithstanding that a manager had come through the area where plaintiff fell 15 to 20 minutes beforehand and saw no wetness on the floor);
Shepard v. Winn Dixie Stores
,
Because it had been raining earlier in the day, a trier of fact could conclude that
*30
Walmart was on notice that its customers would track rainwater into the store. See, e.g.,
Season All Flower Shop, Inc. v. Rorie
,
Although Benson might have slipped on a clear liquid substance other than rainwater, the evidence shows that the area where Benson fell was inspected and cleaned less than 30 minutes before she fell, and that before her fall Walmart was actively pursuing an inspection procedure adequate to address the presence of liquid near the entrance to the store, whatever the source and nature of the liquid. Accordingly, we conclude that Walmart's procedures were, under the circumstances, reasonable as a matter of law. See
Hopkins v. Kmart Corp.
,
2. Walmart and Ferrell also contend that, because Ferrell was not the owner or occupier of the Walmart where Benson fell and there is no evidence of his individual negligence, he is entitled to summary
*81
judgment. See
Dempsey v. Southeastern Indus. Contracting Co.
,
3. Walmart's other claim of error is moot.
Judgment reversed .
Andrews and Rickman, JJ., concur.
Reference
- Full Case Name
- Wal-Mart Stores East L.P. v. Catherine Benson
- Cited By
- 10 cases
- Status
- Published