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Wal-Mart Stores East L. P. v. Benson

Court of Appeals of Georgia, Third Division

October 4, 2017




         In this premises liability action, Catherine Benson sued Wal-Mart Stores East L. P. and Scott Ferrell in the State Court of Gwinnett County seeking damages for injuries sustained when she slipped and fell while shopping at a Wal-Mart. Following this Court's grant of their application for interlocutory appeal, Wal-Mart and Ferrell appeal from the trial court's denial of their motion for summary judgment contending, among other things, that there is no evidence that Wal-Mart had superior knowledge of any hazardous condition and that there is no evidence that Ferrell, a store manager, directed, participated, or cooperated in any act leading to Benson's fall. We reverse for the reasons set forth below.

A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant [or denial] of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. Our review of the grant or denial of a motion for summary judgment is de novo.

(Citations and punctuation omitted.) Johnson v. Omondi, 294 Ga. 74, 75-76 (751 S.E.2d 288) (2013).

         So viewed, the evidence shows the following. On the afternoon of July 5, 2013, Benson slipped and fell in a Wal-Mart in Rome, Georgia. It had been raining earlier in the day. Benson entered the store, where the floor was dry, walked down a nearby aisle, and slipped. According to Benson, one of her feet went forward, and the other back, and she did a "split, " falling down on one knee and then backwards on to the floor. She did not see anything on the floor before she fell. She testified, however, that she landed in a "clear . . . liquid" substance, and that her pants were wet after she fell.

         Wal-Mart did not have camera coverage of the exact location of Benson's fall. The record contains surveillance video footage showing the vestibule and portions of the aisles near the entrance of the store from approximately an hour before, and shortly after, Benson's fall. On the video, Benson can be seen entering the store, walking across the floor mats and past the caution cones placed inside the entrance, and then down an aisle to her right, where she fell off view of the camera.

         The evidence also showed that the Wal-Mart location was a large commercial establishment selling groceries, among other products, with a high volume of customer traffic. Wal-Mart's policy required its employees to keep a look out for and to immediately address spills or other hazards, and its maintenance personnel were trained to circulate through the store and perform any necessary cleaning and maintenance. On rainy days, the store may place caution cones at the front end of the store and place mats at the front entrance to help prevent slip and fall accidents. Employees were also trained to "dry mop" the vestibule and aisles as necessary. According to the testimony of a Wal-Mart manager then employed at the store at issue, these policies were in effect and being followed on the date of Benson's fall.

         The surveillance video shows Wal-Mart employee Lena Brand beginning to mop the aisle where Benson fell 24 to 26 minutes before the fall. Brand's testimony showed that on rainy days it was her normal practice to dry mop the vestibule as well as the aisle where Benson fell. The surveillance video, consistent with Brand's testimony, shows her repeatedly dry mopping the vestibule and nearby aisles, sometimes going out of view of the camera in the process. According to Brand, she inspected for hazards while dry mopping, and, if there had been any clear liquid on the floor, she would have seen it and mopped it.

         "[I]n order to recover for injuries sustained in a slip-and-fall action, 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, 748-749 (2) (b) (493 S.E.2d 403) (1997). As to the second prong, "the plaintiff's evidentiary proof . . . 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." Id. at 749 (2) (b).

         Stated another way,

the true basis for liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. In order to recover, the plaintiff must prove that the defendant had superior knowledge of a dangerous condition that was unknown to the plaintiff and that caused the plaintiff's injuries.

(Citations and punctuation omitted.) Adamchick v. Cracker Barrel Old Country Store, Inc., 281 Ga.App. 677, 678 (637 S.E.2d 44) (2006).

         1. Wal-Mart contends that the trial court erred in denying its motion for summary judgment because there is no evidence that it had superior knowledge of any hazardous condition. As Benson conceded below, there is no evidence that Wal-Mart had actual knowledge of the ...

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