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Kroger Co. v. Williams7/6/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
Ruby Williams brought the instant action against the Kroger Company after she slipped and fell on a pole bean in the produce department of a Kroger grocery store located in Gwinnett County. Williams claimed that the torn rotator cuff she suffered as a result of her fall was caused by Kroger's failure to exercise ordinary care in keeping its premises safe for invitees. The trial court denied Kroger's motion for summary judgment, and we thereafter granted Kroger's application for discretionary review. We conclude that the undisputed evidence shows that Kroger had no actual or constructive knowledge of the hazard before Williams slipped and fell. Accordingly, we reverse.
In Robinson v. Kroger, 268 Ga. 735, 748-749 (2)(b) (493 SE2d 403) (1997), the Georgia Supreme Court held that recovery in a slip and fall action requires that "an invitee . . . 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 the actions or conditions within the control of the owner/occupier." Hardee's Food Systems v. Green, 232 Ga. App. 864, 865-866 (1) (502 SE2d 738) (1998). Our review of the record evidence, which is de novo in this context, leads us to conclude that, as a matter of law, Williams cannot meet the first prong of this test.
As an initial matter, Williams presented no evidence that any Kroger employee had actual knowledge of the bean on the floor before the incident. Indeed, Williams testified that before her fall, she saw no Kroger employees in the produce department. Moreover, when asked whether she had "any reason to think that anybody at the store knew that the green bean was on the floor," Williams answered, "Oh, no." Thus, Williams' personal injury claim can survive summary judgment only if there is some evidence in the record indicating that Kroger had constructive knowledge of the bean on the floor prior to her fall.
Constructive knowledge may be shown in two ways: by showing that an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition before the fall; or by showing that the substance had been on the floor for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises. Wentworth v. Eckerd Corp., 248 Ga. App. 94, 95 (545 SE2d 647) (2001); Roberson v. Winn-Dixie Atlanta, 247 Ga. App. 825 (544 SE2d 494) (2001).
Bolton v. Wal-Mart Stores, Inc., 257 Ga. App. 198 (570 SE2d 643) (2002). In the present case, Williams failed to come forward with any evidence to show Kroger had constructive knowledge in either of the two ways set forth in cases like Bolton.
First, there is an absence of evidence showing that any Kroger employees were "in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition before the fall." Id. Evidence that an employee was present in the area of the hazard is not sufficient, standing alone, to raise a jury question as to the proprietor's constructive knowledge of the hazard. Rather, to prevent summary judgment, " t must be shown that the employee was in a position to have easily seen the substance and removed it." (Citations omitted.) Id.
Williams admitted that she did not know how long the bean had been on the floor before she fell. Furthermore, as pointed out above, she did not see any Kroger employees in the produce department prior to her fall and had no reason to believe that any employee knew that the bean was on the floor. Additionally, Terry Smith, a
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