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Kroger Co. v. Williams7/6/2005
Kroger produce manager who was the only employee on duty in the produce department on the morning of the incident, testified that only five minutes before Williams' fall he walked through the produce department area where the fall occurred. As he did so, he looked on the floor to make sure it was clean. Smith saw no bean on the floor. Smith then proceeded to the produce preparation area, where there was a wall in place that prevented him from seeing the floor area where Williams fell only a few minutes later. Based on Williams' own testimony as well as Smith's unrebutted testimony, it is clear that Williams cannot establish that a Kroger employee was in a position to have easily seen and removed the bean before she slipped and fell. Bolton v. Wal-Mart Stores, Inc., supra.
Second, there is an absence of evidence showing that the pole bean "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." Id. While Williams argues that there is a factual dispute over whether Smith's examination of the produce area before her fall constituted a "real inspection" or simply an informal "walk through," that issue need not be resolved in this case. As previously noted, Smith testified that five minutes before the fall, he looked at the floor where the fall later occurred and saw no pole bean. Smith's testimony went unrebutted. Thus, the only conclusion supported by record evidence is that there was no bean on the floor five minutes before Williams fell. Given the short amount of time the bean was actually on the floor, as a matter of law Williams cannot show that even if "Kroger employees . . . exercised reasonable care in inspecting and cleaning the premises," they would have discovered the bean on the floor before her fall. Lovins v. Kroger Co., 236 Ga. App. 585, 587 (1)(b)(ii) (511 SE2d 2) (1999) (proprietor lacked constructive knowledge when employee viewed area where fall occurred ten minutes before it happened and saw no hazards). See also Matthews v. Varsity, Inc., 248 Ga. App. 512, 514 (2) (546 SE2d 878) (2001) (no constructive knowledge when employee viewed stairs five minutes before fall and saw no liquids or other hazards); Mazur v. Food Giant, Inc., 183 Ga. App. 453 (359 SE2d 178) (1987) (undisputed testimony of store employee and manager that they "both walked past display case only ten to fifteen minutes prior to plaintiff's fall and saw no foreign matter on the floor" showed lack of constructive knowledge).
For these reasons, we conclude that there is an absence of any evidence in the record showing that Kroger had actual or constructive knowledge of the hazard in this case. Therefore, the trial court erred in denying Kroger's motion for summary judgment.
Judgment reversed. Blackburn, P. J., and Miller, J., concur.
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