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Donastorg v. Rainbow USA, Inc.

Court of Appeals of Georgia, Third Division

June 29, 2017

DONASTORG
v.
RAINBOW USA, INC.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Rickman, Judge.

         In this premises liability action, Precious Donastorg sued Rainbow USA, Inc. to recover monetary damages for injuries she allegedly received after stepping on an anti-theft sensor pin while shopping in a clothing store owned and operated by Rainbow. The trial court granted summary judgment in favor of Rainbow upon concluding that Rainbow lacked superior knowledge of the hazard that injured Donastorg. Donastorg argues that genuine issues of material fact remain as to Rainbow's knowledge of the hazard such that the grant of summary judgment in its favor was improper. We agree and reverse.

We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant may obtain summary judgment by showing an absence of evidence supporting at least one essential element of the plaintiff's claim.

Kennestone Hosp. v. Harris, 285 Ga.App. 393, 393-394 (646 S.E.2d 490) (2007).

         The pertinent facts in this case are largely undisputed. The record shows that shortly after 4:00 p.m. on the afternoon in question, Donastorg was shopping with her daughter at a Rainbow clothing store when she stepped on an anti-theft sensor pin located on the store's floor. Donastorg stepped on the pin with her left foot as she removed an item of clothing from the clothing rack and held it up to her daughter. The pin, approximately the size of a thumb tack, went through Donastorg's sandal and punctured her foot, allegedly causing permanent nerve and/or tissue damage.

         Donastorg deposed that, at the time of the incident, a Rainbow employee was unloading new inventory immediately to Donastorg's right, and three additional employees were standing behind the cash registers approximately four to five feet away. Neither Donastorg nor any of the Rainbow employees saw the pin prior to Donastorg stepping on it, and it is unknown how the pin got onto the floor or when it surfaced there. The record contains no evidence that the sensor corresponding to the pin was ever located.

         Donastorg filed suit against Rainbow, alleging that Rainbow breached its duty of care by failing to keep its premises free from hazardous conditions that it knew or should have known existed. The evidence obtained during discovery showed that every Rainbow employee was trained on how to securely attach the security sensors to merchandise, and the sensors were attached to all or most of the items in the store.[1]Rainbow received new inventory daily, and its employees were continuously attaching security sensors to the newly received items. Although the employees generally attached the sensors in the stockroom where new items were received, they were also authorized to attach them on the storeroom floor during working hours.[2]

         Upon the purchase of an item, Rainbow employees would remove the security sensor at the cash registers during the checkout process; however, Rainbow suffered from shoplifters "every day" and "around the clock" who would pry off the sensors and dispose of them without regard.[3] The security sensors were also known to occasionally fall off of dropped items and there was testimony that stray pins had been found on the floor on previous occasions.[4] Rainbow's training manual specifically cautioned employees to ensure that the sensor pins were kept off the floor as "[t]hey could be stepped on and cause injury."

         The store policy mandated that the floor be swept twice daily-once immediately prior to the store opening and once at closing-and otherwise "if needed." The floor had been swept prior to the store's 10:00 a.m. opening on the day in question, approximately six hours before the incident. Rainbow introduced no evidence of any additional policies or procedures requiring that the storeroom floor be inspected or swept during working hours.

         Rainbow moved for summary judgment, asserting that it lacked the requisite knowledge of the hazard so as to absolve it of liability. The trial court granted Rainbow's motion, and this appeal follows.

         Under Georgia law, "[a]n owner or occupier of land has a legal duty, enforceable by lawsuit, to exercise ordinary care to keep and maintain its premises and the approaches in a condition that does not pose an unreasonable risk of foreseeable harm to the invited public." American Multi-Cinema, Inc. v. Brown, 285 Ga. 442 (679 S.E.2d 25) (2009); see OCGA § 51-3-1 ("Where an owner or occupier of land, by express 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."). Nevertheless, a property owner/occupier "is not an insurer of the safety of its invitees. The mere occurrence of an injury does not create a presumption of negligence." (Citation and punctuation omitted.) Kennestone Hosp., 285 Ga.App. at 394.

         Georgia has implemented a two-prong test in order to assess liability to a property owner/occupier on a premises liability claim involving a foreign object: "an invitee must 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 actions or conditions within the control of the owner/occupier." Robinson v. Kroger Co., 268 Ga. 735, 748-249 (2) (b) (493 S.E.2d 403) (1997). The record here is undisputed that Rainbow did not have actual knowledge of the existence of the pin that injured Donastorg and that Donastorg lacked knowledge of the pin despite exercising ordinary care for her own safety. Thus, this case turns on whether Rainbow had constructive knowledge of the hazard.

         A plaintiff may demonstrate a proprietor's constructive knowledge of a hazard by showing that "(1) a store employee was in the immediate area of the hazard and could have easily seen the [foreign object] or (2) the foreign [object] remained long enough that ordinary diligence by the store employees should have discovered it." (Punctuation and footnote omitted.) Johnson v. Al l American Quality Foods, Inc., Ga.App., *2 (Case No. A16A1724, decided Mar. 10, 2017); see Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 623 (272 S.E.2d 327) (1980).

         (1) Donastorg asserts that constructive knowledge may be inferred because several Rainbow employees were working in the area of the hazard and had the opportunity to discover and remove the pin prior to her injury. The employees' mere presence, however, is not in and of itself sufficient to survive summary judgment on the issue of constructive knowledge. See Kroger Co. v. Williams, 274 Ga.App. 177, 178 (617 S.E.2d 160) (2005). Rather, "it must be shown that the [employees were] in a position to have easily seen the [object] and removed it." (Citation and punctuation omitted; emphasis supplied.) Id. In light of the small nature of the pin, there is no evidence from which to conclude that any Rainbow employee-three of whom were four to five feet away and behind cash registers, and the other of whom was on the side of Donastorg opposite the pin-would have been in a position to have easily seen and removed it. It follows that Donastorg has failed to create a jury question as to this issue. See id. at 178-179; Bolton v. Wal Mart Stores, Inc., 257 Ga.App. 198 (570 S.E.2d 643) (2002).

         (2) The evidence does create a jury issue, however, as to whether Rainbow had constructive knowledge of the hazard using the second prong of the test, i.e., whether the pin had remained on the floor long enough that ordinary diligence by the store employees should have discovered it.

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. In addition, to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has demonstrated its inspection procedures.

         (Citation and punctuation omitted.) Food Lion, Inc. v. Walker, 290 Ga.App. 574, 576 (1) (660 S.E.2d 426) (2008). The reasonableness of an inspection procedure depends on the nature of the business, the size of ...


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