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McDonald v. West Point Food Mart, Inc.

Court of Appeals of Georgia

July 2, 2015

McDONALD
v.
WEST POINT FOOD MART, INC

Trip and fall. Troup State Court. Before Judge Little.

Hinton & Powell, A. Jack Hinton, for appellant.

Hall Booth Smith, Mark D. Maholick, Megan M. Scheller, W. Scott Henwood, for appellee.

ANDREWS, Presiding Judge. Branch, J., concurs. Miller, J., concurs in judgment only.

OPINION

Page 775

Andrews, Presiding Judge.

Faye McDonald sued West Point Food Mart, Inc. alleging that injuries she suffered when she tripped and fell in a West Point-operated convenience store were proximately caused bye West Point's failure to exercise ordinary care pursuant to OCGA § 51-3-1 to keep the store premises safe for her as an invited customer. The trial court granted summary judgment in favor of West Point, and McDonald appeals. For the following reasons, we affirm.

McDonald went to the convenience store nearly every day to buy lottery tickets. This time the store was crowded, and she stood in the checkout line with other customers for about ten minutes to arrive at the sales counter to buy the tickets. She bought the tickets from the cashier at the sales counter and then turned from the counter to exit the store. According to McDonald, when she turned from the counter, " I stepped back, my foot got hung on something, and I fell." McDonald did not look down and did not see what caught her foot. But another customer in the store at the time saw what happened and provided the following statement by affidavit:

While in the West Point Food Mart store, I witnessed another customer set a case of beer on the floor while that customer was in line to check out. The case of beer was behind Faye McDonald. The Plaintiff, Faye McDonald, turned around and tripped over the case of beer. Upon tripping over the case of beer, she fell down.

McDonald testified that, while she was lying on the floor, the cashier came around the counter, and told her that she fell over some beer. The store operator, Lexander Singh, who was not present when McDonald fell, testified that a store cashier told him that a customer standing in line behind McDonald put a case of beer down on the floor, and that McDonald did not see the beer behind her on the floor and tripped and fell.[1] Singh also testified that he was aware that customers waiting in line to check out might sometimes sit a heavy shopping item on the floor.

The trial court granted summary judgment in favor of West Point on the basis that the store lacked superior knowledge of a hazard that caused the trip and fall. " To recover on a theory of premises liability [332 Ga.App. 754] [under OCGA § 51-3-1], a plaintiff must show injury caused by a hazard on ... [the] premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public." American Multi-Cinema v. Brown, 285 Ga. 442, 444 (679 S.E.2d 25) (2009). In Robinson v. Kroger Co., 268 Ga. 735, 736-738 (493 S.E.2d 403) (1997), the Supreme Court reaffirmed that the fundamental basis for imposing liability for breach of the duty set forth in OCGA § 51-3-1 is proof that the premises owner or occupier had superior knowledge of such a hazard on the premises that caused harm to the invitee. Accordingly, to prove that West Point was liable on the basis that it had superior knowledge of a hazard, McDonald had the burden of proving: (1) that West Point had actual or constructive knowledge of a hazard which it should have removed or prevented in the

Page 776

exercise of ordinary care and which caused the trip and fall, and (2) that, despite exercising ordinary care for her own safety, McDonald lacked knowledge of the hazard due to West Point's actions or conditions under its control. American Multi-Cinema, 285 Ga. at 444; Robinson, 268 Ga. at 735; Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 S.E.2d 327) (1980).

There was evidence in the record sufficient to create a question of fact as to whether McDonald was exercising ordinary care for her own safety when she tripped and fell without seeing the case of beer placed on the floor behind her. There was also hearsay testimony from McDonald and Singh (introduced without objection) that a cashier told them another customer in line behind McDonald put a case of beer down on the floor while waiting to check out, and that McDonald tripped on the case and fell as she turned from the sales counter to leave. Accordingly, there was some evidence ...


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