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ROBINSON v. KROGER12/3/1997
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 Appeals 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 S.E.2d 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 place 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,
perceiving a tendency "to drift toward a jury issue in every `slip and fall' case[,]" this court granted a writ of certiorari and engaged in an analysis of the topic in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 S.E.2d 327) (1980). The court reiterated there, among other things, the statutory principle that an owner or occupier of land is charged with exercising ordinary care to keep the premises safe (OCGA § 51-3-1), and the fundamental basis for an owner or occupier's liability — that party's superior knowledge of the hazard encountered by the plaintiff. The court stated that an invitee might recover for personal injury suffered in a slip and fall "only when the perilous instrumentality is known to the owner or occupant and not known to the person injured. . . ." Id., at 622. The Alterman court pointed out that an invitee must exercise ordinary care for the invitee's personal safety, using all senses in reasonable measure to discover and avoid things which might cause the invitee harm. Id., at 622-623. The court concluded that "to state a cause of action . . . the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance." Id., at 623.
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 dramatic 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 th
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