One type of tort litigation that always seems to be in the midst of change, is referred to as "premises liability" law. Within the arena of premises liability law, slip and fill cases have been one of the hottest topics for the past year or so. These cases range from situations where a claimant has slipped in a puddle of water in a grocery store to other situations where a claimant has tripped over a curb in a parking lot, or stepped into a pothole. While some predictability developed over time, at least to the extent that owners and proprietors were able to obtain summary judgment by showing that the injured invitee had failed to exercise ordinary care for his own safety, any resulting certainty was removed by the decision of the Georgia Supreme Court in Robinson v. Kroger Co., 268 Ga. 735, 493 S.E.2d 403 (1997).
Robinson seemingly turned the world of slip and fall law upside down by reminding trial courts that questions of negligence and comparative negligence, etc., should be decided by juries, and not by way of motions for summary judgment. The decision in Robinson v. Kroger Co. has probably increased by two-fold the number of slip and fall cases, which are presently being filed with the various trial courts in Georgia. The decision has also significantly diminished the number of summary judgments granted to landowners and commercial proprietors in these cases. The purpose of this paper will be to provide an outline of the underlying legal principles in this particular area of the law, and then to discuss how the decision in Robinson v. Kroger Co. has shifted the playing field so that it has become much more difficult for owners/proprietors to obtain summary judgment.
Although all premises liability cases are factually different, certain legal principles are generally applicable. For example, "The mere ownership of land or buildings does not render one liable for injuries sustained by a person who has entered thereon or therein; the owner is not an insurer of such persons, even when he is inviting them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground for liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted." Emory University v. Duncan, 182 Ga. App. 326, 328, 355 S.E.2d 446 (1987). See also, Cole v. Cracker Barrel, 210 Ga. App. 488, 436 S.E.2d 488 (1983). Before Robinson v. Kroger Co., these principles were relied on by owner/proprietors to obtain summary judgment.
When reviewing slip and fall cases before Robinson, the emphasis seemed to be on whether or not the injured invitee had exercised ordinary care for his own safety by looking where he was walking. Since Robinson, courts have been more interested in reviewing whether or not the owner/proprietor has exercised ordinary care to keep his premises safe before looking at whether or not the invitee (plaintiff) has exercised ordinary care for his own safety. This shift has made it more difficult for owners/proprietors to obtain summary judgment.
SLIP AND FALL
The pertinent standard of care or duty in slip and fall cases is statutory and is stated as "(W)here an owner or occupier of land, by expressed or implied invitation, induces or leads others to come upon his premises for any lawful purpose he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe."1 This statutory provision, together with subsequent case authority, establishes the standard of care owed to business invitees in slip and fall cases. See, O.C.G.A. § 51-3-1.
Typically, there are two types of slip and fall cases. There are those cases in which a "static" condition is involved and there are other cases in which a "foreign substance" is involved. Somewhat different legal principles are applied in each of these cases.
A static condition or defect can be defined as something which is not inherently dangerous in and of itself. Static conditions or defects are typically found in places where such conditions or defects are expected. Examples are cracks in sidewalks, depressed areas in pavement, manholes, curbs, drainage culverts, etc.
Static condition cases quite often also involve the "plain view" doctrine. With the plain view doctrine, the alleged effective condition is in "plain view" so that it can be avoided where a plaintiff exercises ordinary care for his own safety, or is looking where he is walking. Jeter v. Edwards, 180 Ga. App. 283, 349 S.E.2d 28 (1986). Where a static defect is in plain view, or open and obvious, there is no duty to warn.
In evaluating static condition/defect cases it must be understood that a person is not required to look constantly at the area in which he is walking. To say that a plaintiff could have seen a static defect had he been looking may not always be enough. Instead, the applicable standard is "Whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised prudence of the ordinarily careful person would use in a like situation." Robinson v. Kroger Co., 268 Ga. at 735. In Robinson, the Georgia Supreme Court reversed earlier appellate decisions which had held as a matter of law that an invitee's failure to see (before falling) the hazard which caused the invitee to fall constituted a failure to exercise ordinary care, and barred a recovery. "However, that one inspecting a post-fall scene can observe a hazard from a standing position is not dispositive of whether or not the injured invitee was exercising ordinary care for personal safety before the fall." Ibid. at 743.
A somewhat different example of the plain view doctrine occurs where a business invitee trips or falls over boxes or cartons placed in store aisles. Sears Roebuck & Co. v. Chandler, 152 Ga. App. 427, 428, 263 S.E.2d 171 (1979). In these cases, the courts have typically held that "[A] merchant. . . may place cartons and containers in the aisles while he places articles on display shelves, and a customer may expect to find such objects in the aisles; nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone." Riggs v. Great Atlantic Pacific Tea Co., 205 Ga. App. 608, 609, 423 S.E.2d 8 (1992). Before Robinson, summary judgment was not unusual in these cases so long as the plaintiff could not testify that he had been distracted by something created or done by the proprietor.
Likewise, warnings of conditions, which are, or should be, obvious are not required. An owner/proprietor does not have to post a sign on steps saying "This is a flight of steps"; nor do owners/proprietors have to post warnings on brick walls saying "Here is a brick wall". The duty to warn extends only to latent defects and dangers, not to open and obvious ones. Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47, 49, 183 S.E.2d 7 (1971). See also, Hospital Authority of Ben Hill County v. Bostic, 198 Ga. App. 500, 402 S.E.2d 103 (1991).
In another case, a manhole cover and drainage culvert were considered to be static conditions about which the landowner had no duty to warn invitees since they were both in plain view. Metropolitan Atlanta Rapid Transit Authority v. Fife, 220 Ga. App. 298, 469 S.E.2d 420 (1996). In this particular case, summary judgment was granted to MARTA after the court examined a post-accident photograph and the plaintiff admitted that both the manhole cover and adjacent drainage culvert appeared to be in plain view in the picture. This was despite the fact that the plaintiff had testified that she had not noticed either the manhole cover or the drainage covert as she walked to her waiting sister's car because she was looking at the car door handle which she anticipated using to open the door. Also of significance was the fact that the plaintiff's sister was not waiting in an area set aside and "marked" as a pick up area. The Court held that where an invitee departs from a designated route, which is maintained by an owner for the invitee safety, then "the degree of caution required by the invitee's duty to exercise ordinary care for her own safety and heightened by any increased risk resulting from that choice." See also, Gaydos v. Grupe R.E. Investors, 211 Ga. App. 811, 813, 440 S.E.2d 545 (1994).
Other static condition cases have involved discussions of the route selected by the invitee to cross the property of another. "It is incumbent upon the plaintiff to use the degree of care necessary under the circumstances to avoid injury to herself... Griner v. Groover, 97 Ga. App. 753, 757, 104 S.E.2d 504 (1958). The reasonable selection of a route of travel is a part of the invitee's duty to exercise ordinary care for her own safety. While an invitee need not necessarily choose the safest route across the owner/occupier's property, the invitee must exercise ordinary care in selecting and using whichever route is chosen. See, Peacock v. Adams, 118 Ga. App. 728, 165 S.E.2d 664 (1968), for the proposition that where an invitee voluntarily departs from the route designated and maintained by the owner/occupier for the invitee's safety and convenience, the degree of caution required by the invitee's duty to exercise ordinary care for his own safety is heightened by any increased risk resulting from the choice. Where an invitee knowingly departs from a route designated by the owner/proprietor, and uses an unauthorized route to cross the owner's property, the invitee assumes the risk of any hazards which exist on the unauthorized route unless the hazard is also common to the designated route and the owner has notice that the unauthorized route is being regularly used by invitees. Gaydos v. Grupe Real Estate Investors, 211 Ga. App. at 813.
In Gaydos, the plaintiff departed from a sidewalk between a building and a parking lot to take a short cut across a grassy lawn. As the plaintiff approached the parking lot, she tripped over the curb. The Court held that "(E)ven if the alleged parking lot or curb defect in this case was not completely visible upon ordinary inspection from the direction Gaydos approached it, she was aware of the lack of visibility and should have exercised greater caution for her own safety. Gaydos' failure to react to the diminished visibility of the parking lot beyond the curb, and conduct herself accordingly, itself constituted a failure to exercise ordinary care for her own safety."
Another type of static condition/defect case involves raised or elevated surfaces. In Steinberg v. Barwick Pharmacy, Inc., 213 Ga. App. 122, 444 S.E.2d 341 (1994), the Court of Appeals held that a plaintiff, who had previously negotiated a raised platform in a pharmacy, could not recover for injuries sustained when she fell while stepping off of the platform as she left the store. "Where the case involves a static condition, the rule is well established that 'the basis of the proprietor's liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does (Cit.)." Ibid. at 123-124. See also, Powell v. Woodridge Condominium Assn., 206 Ga. App. 176, 177, 424 S.E.2d 855 (1992), where the Court of Appeals reaffirmed that a change in elevation, in this case, common area stairs at a condominium complex, was not inherently dangerous so long as there was evidence that there was nothing unusual or dangerous in the manner in which the stairs were constructed; and Lane v. Maxwell Brothers & Asbill, Inc., 136 Ga. App. 712, 713, 222 S.E.2d 184 (1975), where the Court of Appeals held that "When they (platforms) are placed so as not to threaten or endanger those visiting the store, within full view and observation, the merchant is not liable for accidents caused by the carelessness and inattention of others." Even where a static condition is defective (or hazardous), if the plaintiff has successfully negotiated the immediate area in which the defective condition is located on a previous occasion, and is aware of the defective condition, recovery may be barred. See, Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292(1), 435 S.E.2d 764 (1993). In such cases, plaintiff cannot show superior knowledge on the part of the landowner.
A change in elevation and even a lack of warning of the change of elevation, has been held not sufficient to show the negligent design and/or maintenance of an entrance. Lowe v. MacErich Real Estate Co., 213 Ga. App. 299, 444 S.E.2d 389(1994). In this case, the plaintiff contended that the trial court had erred by granting the defendant's motion for summary judgment on the basis that there were genuine issues of material fact concerning whether or not the defendant was negligent in designing and maintaining an entrance which:
- had an optical illusion that concealed a change in elevation (slope);
- lacked warnings notifying pedestrians that they were approaching a slope, and;
- was too slick.
The Court of Appeals disagreed and said that although an expert had opined that the slope was concealed by an optical illusion and that the defendant was negligent in failing to provide warnings of the slope, the mere fact that there was a slope did not in and of itself constitute negligence. See also, Pilgreen v. Hanson, 89 Ga. App. 703, 709(1), 81 S.E.2d 18 (1954). The Court of Appeals also pointed out that the plaintiff's expert had not testified that the slope was too steep or unsafe for pedestrians, and there was no evidence that a change in the elevation had caused the plaintiff's fall. Similarly, the Court pointed out that there had been no showing that the plaintiff's fall had been caused by a purported lack of traction. See also, Haire v. City of Macon, 200 Ga. App. 744, 745, 409 S.E.2d 670 (1991); and Butts v. Academy of Beauty, 117 Ga. App. 222, 160 S.E.2d 222 (1968).
In a similar outcome, the Georgia Court of Appeals held that a proprietor was justified in assuming that an invitee would see a small lip created where a parking lot joined a grocery cart ramp for a Piggly Wiggly grocery store, and would further realize the risk of the uneven pavement. Piggly Wiggly Southern, Inc. v. Bennett, 217 Ga. App. 496, 458 S.E. 2d 138 (1995). In its decision, the Court relied on earlier language that "It is common knowledge that small cracks, holes, and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one's ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved." Ibid. at 497. See also, Wiley v. Family Dollar Store, 208 Ga. App. 461, 462, 430 S.E.2d 839 (1993). Where the Court found that the uneven pavement upon which the plaintiff tripped was a "static, trifling defect and nothing obstructed" the plaintiff's view as she looked directly at it. The key to the Court's decision was probably the plaintiff's admission in her deposition that she had looked directly at the joint between the parking lot and the ramp as she stepped on it.
PLAIN VIEW DOCTRINE
If the plain view doctrine requires business invitees to exercise ordinary care for their own safety by looking where they are walking and seeing large objects which are in plain view and in locations where such objects are customarily placed and expected to be, it was not without limitation even before Robinson. For example, "[t]he fact that one who is inspecting a post-fall scene can observe a hazardous defect from a standing position is not dispositive of whether or not the injured party was exercising ordinary care for her own safety prior to the fall, with the attendant circumstances and a jury question exists as to such issue." See, Thompson v. Regency Mall Associates, 209 Ga. App. 1, 2, 432 S.E.2d 230 (1993). Likewise, while an invitee has an equal duty with the owner to use his eyesight to discover any defect or danger on the property, he is not obliged to continuously inspect the premises to discover latent defects. "Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place... It is clear, however, that the controller of the premises has a duty to inspect said premises and to maintain a premises safe from patent defects for the protection of invitees." Bodenheimer v. Southern Bell Telephone & Telegraph Co., 209 Ga. App. 248, 249, 433 S.E.2d 75 (1993).
An argument, which has long been used by plaintiffs to counter the "plain view" defense is that where the plaintiff's attention is distracted by a natural and usual cause, of which the owner was aware or created, a lesser degree of prudence may be sufficient to constitute ordinary care on the part of the plaintiff. This argument, known as the "distraction doctrine," is itself not without limitation. "Where the distraction is self-induced, the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence. Redding v. Sinclair Refining Co., 105 Ga. App. 375, 379, 124 S.E.2d 688 (1962). For example, summary judgment was granted to a Wal-Mart store the defendant where a customer, who while looking at a ceiling fan display, tripped over a box left in the aisle. See, Wal-Mart Stores v. Hester, 201 Ga. App. 478, 479, 411 S.E.2d 507 (1991). Likewise, summary judgment was found to be proper where a grocery store customer, who slipped and fell while pushing a grocery cart and looking at merchandise, admitted that she could have seen the wet and recently mopped floor, on which she fell, had she looked.
Both of these distraction doctrine cases would probably come out differently now because of the decision in Robinson v. Kroger Co. Most trial courts (and the Court of Appeals) would probably now find a question of fact concerning whether or not the "distraction" should have been anticipated by the owner/proprietor, and whether or not "under the totality of the circumstances" the owner/proprietor exercised ordinary care for the safety of the injured invitee.
FOREIGN SUBSTANCE CASES
Probably the most common type of slip and fall case occurs where an invitee slips and falls on some sort of foreign substance, such as a banana peel, oil, water, etc. These cases have never been as easy to defend as static condition cases since typically the foreign substance, or other hazardous condition, is not found in a place where it is expected to be. Although the statutory reference in these cases remains O.C.G.A. § 51-3-1, the standard of care seems, at least in application, to be somewhat higher than with a static condition. In order to recover in a slip and fall case of this nature, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance; and (2) that he, the plaintiff, was without knowledge of the substance, or for some reason attributable to the defendant, was prevented from discovering the foreign substance. See, Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980).
Actual knowledge is just that, actual knowledge, and is usually established when someone sees, hears, touches, or smells something. Constructive knowledge, on the other hand, is somewhat less certain. Constructive knowledge exists where someone "should" have known something. Constructive knowledge can be judicially established in slip and fall cases in one of two ways. First, constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the foreign substance and could have "easily" noticed and removed the hazard. Second, constructive knowledge may be established where the owner is shown to have failed to exercise reasonable care in inspecting the premises. See, Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 429, 408 S.E.2d 443, cert. denied., 200 Ga. 896 (1991).
"Normally a proprietor is permitted a reasonable amount of time to exercise care in inspecting the premises and maintaining them in a safe condition . . . The proprietor is under no duty to continuously patrol the premises in absence of facts showing that the premises are unusually dangerous . . ." While questions of fact often exist concerning whether or not the foreign substance was on the floor a sufficiently long period of time to be discovered by the proprietor, a line of cases has established that where the proprietor presents undisputed proof that he or his employee was in the immediate area of the fall no more than 10 to 15 minutes before the fall, and did not see the foreign substance, no actionable negligence against the proprietor can be established. See, Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565, 417 S.E.2d 202 (1992).
The mere proximity of an employee to the area in which the fall occurs is not sufficient to establish constructive knowledge. Evidence must be presented that the substance was either clearly visible or could have been easily seen and removed by the employee. See, Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 168, 424 S.E.2d 845 (1992).
Likewise, the fact that a substance is found on the floor after a fall is not sufficient to establish liability. The issue remains whether or not the defendant had actual or constructive knowledge of the substance before the fall, and even then, the plaintiff must exercise ordinary care for his own safety. In other words, the foreign substance must have been located so that it could have been "easily" seen and removed by the defendant or his employee before an employee's proximity will be sufficient to establish constructive knowledge. Wiley v. Winn-Dixie, 204 Ga. App. at 572.
Even where an owner has an employee in the immediate vicinity of the dangerous condition, a lack of constructive knowledge can still be established by evidence of the owner's compliance with a reasonable inspection and/or cleaning procedure. The owner must, however, prove the existence of a customary inspection procedure, and then show compliance with the procedure at the time of the fall at issue. Jackson v. Wal-Mart Stores, Inc., 206 Ga. App. at 168-169.
Prior to the decision in Robinson v. Kroger Co., slip and fall cases had become an area in which defendants could quite often prevail by pointing out that the plaintiff had not exercised ordinary care for his own safety. A key decision was Alterman Foods, Inc. v. Ligon, where the Georgia Supreme Court held that in order to recover where a fall had been caused by a foreign substance, a plaintiff must show (1) that the proprietor/owner had actual or constructive knowledge of the alleged foreign substance; and (2) that he (the plaintiff) was without knowledge of the substance or, that for some reason attributable to the proprietor/owner, he was prevented from discovering the foreign substance. 246 Ga. at 623.
Defendants quite often were able to obtain summary judgment by getting a claimant to testify that he was not looking where he was walking at the time of his fall, and that if he had been looking, he could have seen the foreign substance. This amounted to evidence that the plaintiff had not exercised ordinary care for his own safety and that he could have seen the hazard had he been looking. See also, Lau's Corp. v. Haskins, 261 Ga. 491 (1), 405 S.E.2d 474 (1991) for the proposition that "A defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party's case (to obtain summary judgment); instead, the burden on the moving party may be discharged by pointing out . . . that there is an absence of evidence to support the non-moving party's case." (Explanation added.) Ibid. at 491.
Summary judgment almost always followed in these cases unless the plaintiff was able to show that he had been distracted, and that the distraction resulted from act or omission of the owner/proprietor. In fact, decisions went so far as to hold that even where a plaintiff had shown that the landowner was negligent, and that a defective condition existed on the property, the plaintiff could not recover where, by the exercise of ordinary care, he (the plaintiff) could have discovered the hazardous condition so as to prevent being injured. The Alterman decision was used by defendants to support an argument that invitees must exercise ordinary care for their own safety, using all their senses in reasonable measure to discover and avoid things which might cause them harm. 246 Ga. at 623. See also, Smith v. Wal-Mart Stores, 199 Ga. App. 808, 406 S.E.2d 234 (1991).
ROBINSON V. KROGER CO.
The scenario of summary judgments being granted to defendants in slip and fall cases based only on the plaintiffs' failure to exercise ordinary care for his own safety, and the attendant failure to look where he was walking, came to a halt with the Georgia Supreme Court's decision in Robinson v. Kroger Co. What the Georgia Supreme Court expressed in Robinson v. Kroger Co. was an objection to earlier appellate decisions which had focused more on whether or not the plaintiff had exercised ordinary care for his own safety than on whether or not the proprietor had known or should have known about the hazard. 268 Ga. at 740. "These decisions have placed in the limelight an invitee's duty to exercise reasonable care for personal safety and, in so doing, have relegated to the shadows the duty owed by an owner/occupier to an invitee." Ibid.
The Supreme Court also expressed displeasure with the manner in which the plain view doctrine had "undergone radical transmutation in recent appellate decisions." Ibid. at 742. The Court stated that "It has been used in such a manner as to remove any reasonable limits on its application when it has repeatedly been held that a hazard which was not seen by the invitee before the fall but which could have been seen by the invitee had the invitee looked at the floor is a plainly visible defect in plain view and failure of the invitee to see such a hazard bars recovery under the plain view doctrine." Ibid.
The Court then concluded by disapproving the earlier appellate decisions which had held as a matter of law that an invitee's failure to see the hazard which caused the fall constituted a failure to exercise ordinary care. "Demanding as a matter of law that an invitee visually inspect each foot fall requires an invitee to look continuously at the floor for defects, a task an invitee is not required to perform since the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe for the invitee and continues to exercise such care while the invitee remains on the premises." Ibid. at 743.
The Court's holding was that an invitee's failure to exercise ordinary care is not established "as a matter of law" by the invitee's admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. 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." The Court further held that an invitee presents some evidence of the exercise of ordinary care for his own safety when he explains that something in the control of the owner/occupier, and of such a nature that the owner/occupier knew or should have known of its distractive quality, caused him not to look at the area of the hazard.
Although the Robinson court reaffirmed the Alterman test that a plaintiff in a slip and fall case must show (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 in the control of the owner/occupier, the Court held that the plaintiff's evidentiary burden of establishing the second prong should not be shouldered until the defendant establishes negligence on the part of the plaintiff, i.e., that the plaintiff intentionally and unreasonably exposed himself to a hazard of which he knew, or in the exercise of ordinary care, should have known. Perhaps more importantly, the Supreme Court reminded lower courts that "As a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one's own safety are not susceptible of summary adjudication . . . but should be resolved by trial in the ordinary manner." Ibid. at 748.
Not unexpectedly, far fewer summary judgments have been granted to defendants in slip and fall cases since the decision in Robinson v. Kroger Co. While we have not done an exhaustive study of all slip and fall cases since the Robinson decision, it appears that both the Georgia trial and appellate courts are applying Robinson to both static condition and foreign substance cases. In fact, it appears that Robinson is being applied to all slip and fall cases, whether a foreign substance, static defect, or a rainy day is involved. It also appears that the ratio of decisions in which summary judgment is either granted to a landowner or affirmed, versus those decisions in which summary judgment is denied, or reversed, is now at least 2 to 1. Bottom line, it has become much more difficult for defendants to obtain summary judgment since Robinson. Though trial courts and appellate courts seem to have taken literally the Supreme Court's holding in Robinson that the fact that one inspecting a post-fall scene can observe a hazard from a standing position is not dispositive of whether or not the injured invitee was exercising ordinary care for his own safety before the fall. Much more now seems to be required.
THE AFTERMATH OF ROBINSON
One of the first cases cited after Robinson v. Kroger Co. was Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 496 S.E.2d 732 (1997). In Kelley, the Court of Appeals reaffirmed the two prong test set forth in Robinson v. Kroger Co. that in order to recover in a slip and fall case, a plaintiff must show (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/occupant.
In this particular case, the plaintiff could not establish that there had been any employees in the immediate area where he fell. The Court went on to state that while a proprietor is not required to warrant the safety of invitees, a proprietor's duty to exercise ordinary care for the safety of invitees includes inspecting the premises to discover possible dangerous conditions of which he does not already have actual knowledge, and then taking reasonable precaution to protect invitees. Summary judgment was denied to Piggly Wiggly because it could not produce evidence of a reasonable inspection and cleaning procedure.
This issue concerning whether or not an owner/proprietor had an inspection and cleaning procedure in place at the time an invitee slipped and fell had frequently been discussed before Robinson in cases where plaintiffs sought to rely on constructive knowledge on the part of the owner to establish liability. These earlier cases frequently held that to obtain summary judgment (and to defeat constructive knowledge), a landowner/proprietor had to present evidence that he had a reasonable cleaning and inspection procedure in place, and that the cleaning and inspection procedure was in fact being implemented at the time of the plaintiff's fall. With the decision in Lau's Corp. v. Haskins, decisions in slip and fall cases seemed to change and the emphasis on a proprietor's duty to show the implementation of a reasonable inspection procedure was not mentioned as frequently. This was because of language in Lau's Corp., which stated that to obtain summary judgment a defendant need not disprove the plaintiff's entire case. Instead, it was only necessary for a defendant to show the absence of evidence to support one material element of the plaintiff's cause of action. This brought about a shift in focus from the proprietor's duty to exercise ordinary care for the safety of invitees (which included the issue of cleaning and inspection) to whether or not the plaintiff had exercised ordinary care for his own safety. 261 Ga. at 491, 405 S.E.2d 474 (1991).
Robinson has returned the focus back to the proprietor's duty to exercise ordinary care for the safety of invitees with its holding that "A slip and fall plaintiff need not necessarily produce evidence which disproves a plaintiff's negligence to withstand a motion for summary judgment - the burden of coming forward with such evidence arises only after it has been established or assumed the defendant had actual or constructive knowledge of the hazard, and the defendant asserts evidence that the plaintiff's injuries were proximately caused either by the plaintiff's voluntary negligence, i.e., plaintiff's intentional and unreasonable exposure of self to a hazard of which plaintiff has knowledge, or by plaintiff's causal negligence, i.e., the plaintiff's failure to exercise ordinary care for personal safety . . . Only after the defendant has produced evidence of the plaintiff's negligence does the plaintiff have the burden of producing rebuttal evidence that the invitee's failure to ascertain the existence of the hazard was due to actions or conditions within the control of the defendant, which actions or conditions are of such nature that the defendant knew, or should have known, that they would have diverted the invitee's attention from looking where he was going . . . We hold that an invitee's failure to exercise ordinary care is not established as a matter of law by the invitee's admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised prudence the ordinarily careful person would use in a like situation. We further hold that an invitee presents some evidence of the exercise of reasonable care for personal safety when the invitee explains that something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality caused him not to look at the site of the hazard . . . [t]he plaintiff's evidentiary burden concerning the second prong (to show that he exercised ordinary care for his own safety) is not shouldered until the defendant establishes negligence on the part of the plaintiff - i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known." Robinson v. Kroger Co., 268 Ga. at 748-749 (explanation added).
A post Robinson case which examined the issue of inspection of the premises by the proprietor was Jones v. The Krystal Co., 231 Ga. App. 102, 498 S.E.2d 565 (1998). In this case, the plaintiff slipped in a spill of ice and cola on the floor of a Krystal restaurant. The plaintiff said that the spill was not visible from a standing position because of the color of the floor. The Court held that the proprietor's duty to exercise ordinary care to keep the premises safe included a duty to inspect the premises to discover possible dangerous conditions of which he was not otherwise aware, and to take reasonable precautions to protect invitees from dangers which are foreseeable from the arrangement and use of the premises.
Although the plaintiff in Jones v. The Krystal Co. was unable to say how long the spill had been on the floor, he did testify that he had been in the restaurant for at least 20 minutes and that he had not seen anyone inspecting or cleaning the floor. Based on this testimony, the Court found that the failure of Krystal to inspect the area for at least the 20 minutes the plaintiff had been present in the restaurant, created a question of fact concerning whether or not Krystal had constructive knowledge. The plaintiff also contended that the color of the cola and the color of the floor blended together to make it impossible to see the spill from a standing position.
The Court in Jones, also referred back to Robinson to the extent that a plaintiff's evidentiary burden to show the second prong (that he lacked knowledge of the hazard despite the exercise of ordinary care) is not shouldered until the defendant establishes negligence on the part of the plaintiff, i.e., that the plaintiff intentionally unreasonably exposed himself to a hazard of which the plaintiff knew, or in the exercise of ordinary care, should have known.
The Court went on to state the obvious that actual knowledge is "actual" knowledge. Constructive knowledge, on the other hand, is something less than actual knowledge and can be established in one of two ways. First, constructive knowledge can be established by evidence that the landowners' employees were in the immediate vicinity of the hazardous condition, and could have easily noticed and removed the hazard. Second, constructive knowledge can be established by evidence showing that the substance had been on the floor for such a time that it would have been discovered had the proprietor exercised reasonable care in inspecting its premises. Since there was testimony that the spill on which the plaintiff fell was located in front of a counter, behind which Krystal employees worked, the Court found a question of fact on the issue of whether or not Krystal had constructive knowledge of the spill.
In another post Robinson decision, Sadtler v. Winn-Dixie Stores, the Georgia Court of Appeals reversed a trial court's decision to grant summary judgment where an 83-year-old plaintiff was injured after she struck her leg on a box which was stacked on the floor of a Winn-Dixie store, 230 Ga. App. 731, 498 S.E.2d 101 (1998). The plaintiff was pushing a buggy straight down an aisle. As the plaintiff was passing a stacked display, she turned to look at the items on display and struck her leg on a box which had been left on the floor. When asked why she had not seen the box, the plaintiff said that "it just weren't visible." In this case, the Court of Appeals relied on language from Robinson that "an invitee's failure to exercise ordinary care is not established as a matter of law with the invitee's admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. 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." Ibid. at 733.
Although the Court of Appeals in Sadtler found a question of fact concerning whether or not the plaintiff had exercised ordinary care for her own safety, the Court of Appeals did affirm a pre-Robinson principle that a merchant has a right to place articles in the aisles of his store, so long as the articles are not placed so as to constitute a hazard to customers who may use the aisles. Ibid. at 732. See also, Hester v. Wal-Mart Stores, Inc., 201 Ga. App. 478, 411 S.E.2d 507 (1991).
Where a plaintiff relies on constructive knowledge to establish liability, he may be required to show how long the hazardous condition existed to recover.
Since Robinson v. Kroger Co., the issue of constructive knowledge has become a question of fact for the jury more often than not. Constructive knowledge can be established by a showing that the proprietor had an employee in the immediate area who could have easily seen and removed the hazard. Constructive knowledge can also be shown by evidence that the owner failed to exercise reasonable care in inspecting the premises. This is because an owner/proprietor is allowed a reasonable opportunity to discover and remove any hazardous condition which may exist, or be created, on his property. What is a "reasonable" opportunity is most often left to the jury except where the defendant shows that an employee was in the area within fifteen minutes of the plaintiff's injury and can testify that the hazardous condition did not exist while he was in the area. Previous appellate holdings have established that anything less than fifteen minutes does not, as a matter of law, give the owner a "reasonable" opportunity to remove a hazardous condition. Without the requirement that the plaintiff show how long the hazardous condition existed, it would not be possible to determine whether the owner had been afforded a reasonable opportunity within which to inspect and remove the hazard.
THE CLEANING AND INSPECTION DEFENSE
One way a proprietor can obtain a post Robinson summary judgment is by demonstrating that it exercised reasonable care in inspecting its premises. This can be done by presenting evidence of compliance with a reasonable inspection procedure. Hopkins v. K-Mart Corp., 232 Ga. App. 515, 502 S.E.2d 476 (1998). In Hopkins, the plaintiff fell in a puddle of tea. K-Mart obtained summary judgment by presenting an affidavit from its manager that he had checked the check out aisles every 30 minutes on the busy Easter Sunday when the plaintiff had fallen, and that he had checked the aisle no more than 30 minutes before the plaintiff's fall, and that he had seen no foreign substance. "The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case, the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, the store's location." The Court went on to hold that the plaintiff had failed to show that K-Mart had not exercised reasonable care in inspecting its premises. As a consequence, the plaintiff could not show that K-Mart had actual or constructive knowledge of the spill. Summary judgment was upheld.
In a similar case, Hardee's obtained a post Robinson summary judgment where it presented proof that an employee had mopped its floor only minutes before the plaintiff walked across it, and slipped on a greasy spot. See, Hardee's Food Systems v. Green, 232 Ga. App.864, 502 S.E.2d 738 (1998). The plaintiff's theory was that she had slipped on a combination of water and an invisible greasy substance that had leaked from a nearby trash can. While the plaintiff admitted seeing water on the floor, she denied being aware of any grease. Since Hardee's denied actual knowledge of the hazardous condition, the plaintiff relied on constructive knowledge. Because Hardees presented evidence that the floor had been mopped and cleaned only minutes before the fall, and because the plaintiff was unable to present evidence concerning how long the grease had been on the floor, plaintiff was unable to establish constructive knowledge. This case seems to fall in line with those cases in which summary judgment has been granted where testimony is presented by an employee who was in the area within15 minutes of the fall, and who testified that no foreign substance was visible/present.
The Court in Hardee's Food Systems v. Green also referred to the earlier decision in Straughter v. J.H. Harvey Co.,232 Ga. App. 29, 500 S.E.2d 353 (1998), for the proposition that a plaintiff, in order to withstand a motion for summary judgment, need not show how long a substance has been on the floor unless the defendant has established that a reasonable inspection procedure was in place and followed at the time of the fall. This would seem to mean that for an owner/proprietor to obtain summary judgment, in cases where it is undisputed that the owner/proprietor did not have actual knowledge of the hazardous substance, the owner/proprietor must present proof that he had a reasonable inspection and cleaning procedure in place, which was being implemented at the time of the fall. Otherwise, the plaintiff (at the summary judgment phase), does not have an obligation to present evidence concerning how long the hazardous condition had existed to rely on constructive knowledge.
Although the decision in Robinson has certainly limited an owner's ability to obtain summary judgment, a plaintiff must still be able to show why he fell in order to recover. Kolomichuck v. Bruno's, 230 Ga. App. 638, 497 S.E.2d 10 (1998). In Kolomichuck, the plaintiff slipped and fell while pushing a cart down a grocery aisle on what he described as a surface with a "very high shine." The plaintiff denied seeing any sort of foreign substance, debris, etc., and basically admitted he did not know why he fell, or what caused his fall. The plaintiff also failed to present any evidence concerning the materials or methods used in waxing and maintaining the floors to establish that his fall had been caused by the manner in which the defendant waxed or maintained the floor. "In a slip and fall case allegedly resulting from the defendant's negligence in maintaining a highly waxed and slippery floor, the plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them." To simply fall is not enough.
Another principle which is still in place is that where an invitee has successfully negotiated an allegedly dangerous condition on previous occasions, he is presumed to have knowledge of it and cannot recover for a subsequent injury. Spires v. Hall, 230 Ga. App. 357, 496 S.E.2d 501 (1998). This principle is, however, pretty much limited to static conditions/defect cases. In Spires, the plaintiff collided with a gate positioned across a portion of a dirt road while he was operating a four-wheel all terrain vehicle. The plaintiff contended that the gate had been illegally placed in the road but admitted that he had negotiated the gate on earlier occasions.
Likewise, where a purported hazardous substance is located so that it is not visible to the plaintiff, the owner/occupant may also be excused. Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 496 S.E.2d 471 (1998). This is also true where the foreign substance is not visible because of its nature, such as a clear liquid, or where the foreign substance blends into the surrounding area.
In Haskins v. Piggly Wiggly Southern, the plaintiff slipped and fell in a puddle of water as she was walking between two cash registers. Plaintiff testified that even had she been looking down at the floor, she would not have been able to see the water. The plaintiff also testified that the water was not visible from a standing position and that she had to "get down" to see it. Fortunately for Piggly Wiggly, the plaintiff could not establish how long the water had been on the floor. The fact that a Piggly Wiggly employee was in the immediate area was not sufficient to prevent summary judgment. "Inasmuch as the purported hazard was not readily visible to Haskins, she did not establish that a Piggly Wiggly employee could have easily seen it and removed it. Showing that an employee was merely working in the immediate area of foreign substance is not enough; the employee must have been in the position to have easily seen the substance and removed it." Ibid. at 352.
Although Piggly Wiggly had a store policy requiring that management employees maintain a continuous lookout for spills so that corrective action could be taken, there was no evidence to establish when the floor had last been inspected. Without actual knowledge on the part of Piggly Wiggly, the plaintiff had to rely on constructive knowledge to establish the first prong of Robinson. Since the plaintiff could not testify how long the puddle had been on the floor, and since the puddle was not "easily seen" by the employee working in the immediate area, the plaintiff could not establish constructive knowledge, and summary judgment was appropriate.
A case with a somewhat different outcome was Ray v. Restaurant Management Services, 230 Ga. App. 145, 495 S.E.2d 613 (1998). In this case, a plaintiff slipped and fell on a hard boiled egg while leaving a booth while on her way out of a Shoney's Restaurant. Although the plaintiff was not able to establish actual knowledge on the part of Shoney's, there were two employees sweeping the floor in the immediate area which was enough to create constructive knowledge. "Therefore, even if Shoney's did not have actual knowledge of food on the floor, the presence of the employees in the immediate area is enough to impute constructive knowledge of the condition of the floor." Ibid. at 145. This decision seems to have been based on the fact that the employees were situated so they could have easily seen the egg.
The only defense presented by Shoney's was that the plaintiff had been negligent to the extent that she could have seen the hard boiled egg had she been looking. Shoney's also contended that the plaintiff had previously successfully negotiated the same area and should have been presumed to have knowledge of the alleged hazardous condition. Because the plaintiff's testimony was that the route she was taking when she slipped and fell was somewhat different from the route traversed earlier, and since the underlying testimony from the plaintiff did not include an admission that she could have seen the hazard had she looked, the trial court found a question of fact concerning whether or not the plaintiff had maintained a reasonable lookout for her own safety. "Whether an invitee maintained a reasonable lookout for her own safety depends on the facts and the circumstances at the time and place of the fall." Ibid. at 146.
One last case, which may be more demonstrative of the impact of Robinson v. Kroger is West Lumber Co. v. Beck, 231 Ga. App. 46, 497 S.E.2d 647 (1998). In this particular case, the plaintiff slipped and fell in some spilled paint while exiting a West Lumber store. A can of white paint had been knocked over by another customer near an exit several minutes earlier. West Lumber Company positioned two managers near the spill and began making announcements over the public address system calling for a cleaning crew. No warning cones or signs were used to mark the spill. The plaintiff walked past the two managers without hearing any warnings from employees, who were telling people to watch for the paint. The plaintiff testified that she was looking ahead in a normal manner.
Although the plaintiff admitted that the spill was in plain view, the Court of Appeals found a question of fact concerning whether or not West Lumber had taken adequate measures to protect its invitees. The Court also found a question of fact concerning whether or not the plaintiff would have seen the paint had she stopped to let her eyes adjust before walking out of the store. The plaintiff's deposition testimony was that because of the changed lighting conditions as she exited the store, she had not been able to fully use her eyesight, and had not seen the spill.
Despite these cases in which summary judgment has been denied to owners/proprietors at a rate of about 2 to 1, summary judgment still appears to be available where a plaintiff knowingly encounters a hazardous condition. For example, where an invitee decides to enter a spa or whirlpool bath by way of steps which she knows are unmarked, and cannot be seen, the plaintiff's failure to exercise ordinary care for her own safety will support summary judgment. Denham v. YMCA, 231 Ga. App. 197, 499 S.E.2d 94 (1998).
APPLICATION OF ROBINSON TO STATIC CONDITION CASES
While the decision in Robinson v. Kroger Co. is being applied in static condition/defect cases, its effect may not be quite as great as where a foreign substance is involved. One example is the decision in Tanner v. Lorango, 232 Ga. App. 599, 502 S.E.2d 599 (1998). Here the plaintiff caught the toe of her shoe in a moss sealed gap between a sidewalk which served as the entrance to a store in the store's parking lot. Photographs showed that although green moss growing in the separation concealed the depth of the gap between the light colored cement sidewalk and the black asphalt parking lot, the gap itself was plainly visible. "Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities in trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel. It is common knowledge that small cracks, holes, and uneven spots often develop in pavement, and it has been held that where there is nothing to obstruct or interfere with one's ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved."
APPLICATION OF ROBINSON TO RAINY DAY CASES
Rainy day cases are a somewhat different area of slip and fall law since "[I]t is a matter of common knowledge that some water will normally be present at a place where shoppers continually pass in and out during rainy weather. It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas." Smith v. Toys "R" Us, 233 Ga. App. 188, 504 S.E.2d 31(1998). See also, Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 138 S.E.2d 77 (1965).
Before the decision in Robinson, it was typically fairly easy to obtain summary judgment in rainy day slip and fall cases, at least where the owner/proprietor had taken reasonable steps to remove the wetness/moisture and to warn invitees, who might be crossing the wet area. Most of these cases involved wet flooring, etc., located just inside a store in an area where it was reasonable to assume that moisture would either be tracked in, or would blow in, during rain. A typical case was Hogans v. Food Giant, 185 Ga. App. 645, 365 S.E.2d 496 (1988), where the plaintiff slipped and fell on a rainy day very soon after she entered a grocery store. The court noted that although there was no mat at the front door, the plaintiff had been unable to prove any correlation between the absence of a mat and her slip and fall. Furthermore, the court stated that the absence of a mat was an open and obvious condition. Based on a long line of rainy day cases, the court held the plaintiff could not show a dangerous condition, and further, could not show that the defendant had superior knowledge of the condition. Ibid at 646. The court concluded its opinion by stating "[T]o presume that because a customer falls in a store the proprietor has somehow been negligent would make the proprietor an insurer of his customer's safety, a status not imposed by the law of this State." Ibid at 646. See also, Layne v. Food Giant, Inc., 186 Ga. App. 71, 366 S.E.2d 71 (1988), where the Georgia Court of Appeals affirmed summary judgment for Food Giant and held that it is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the floor is likely to be wet. The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in and of itself, but is a condition to which all who go out on a rainy day may be exposed and which all may expect to encounter. Ibid at 72.
With the decision in Robinson, even rainy day cases are now somewhat in doubt. The principle to be applied in rainy day cases in the aftermath of Robinson was enunciated in Smith v. Toys "R" Us, and was that store proprietors are not held liable to patrons who slip and fall on floors made wet by rain conditions where there has been no unusual accumulation of water and the proprietor has followed reasonable inspection and cleaning procedures. 233 Ga. App. at 191 - 192. After citing, and seemingly adopting, holdings from pre Robinson rainy day cases, the court changed course by applying the burden of proof holding from Robinson and stated, concerning whether or not the plaintiff had exercised ordinary care for her own safety, "[U]nder Robinson, a slip and fall plaintiff's burden of coming forward with evidence disproving his or her negligence arises only after it has been established or assumed that the defendant had actual constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff's injuries were proximately caused either by plaintiff's voluntary or casual negligence." 233 Ga. App. at 190.
Because no inspection and cleaning procedure had been implemented for 1-1/2 hours before the plaintiff fell, the court distinguished this case factually from earlier decisions, and found a question of fact concerning whether or not the plaintiff had exercised ordinary care for her own safety. As a consequence, the trial court's decision to grant summary judgment was reversed. On the issue of the plaintiff's duty to exercise ordinary care for her own safety, the court stated "[L]ooking continuously without intermission, for defects in a floor, is not required in all circumstances. What is a reasonable look out depends on all the circumstances of the time and place." 233 Ga. App. at 192. See also, Sutton v. Winn-Dixie Stores, 233 Ga. App. 424, 504 S.E.2d 245 (1998).
Very clearly with the decision in Robinson v. Kroger Company, it is now much more difficult for owners and proprietors to obtain summary judgment. In fact, summary judgment will now only be granted owners and proprietors in a very few cases. Those cases, will typically involve situations where a claimant can be shown to have knowingly encountered a dangerous/hazardous condition and then failed to exercise ordinary care for his own safety.