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Lomax v. The Kroger Co.

Court of Appeals of Georgia, Third Division

February 21, 2019

FREEMAN LOMAX et al.
v.
THE KROGER COMPANY.

          GOBEIL, COOMER and HODGES, JJ.

          Gobeil, Judge.

         This appeal arises from a premises liability/negligence action brought by Freeman Lomax ("Lomax") and his wife, Pattie Lomax (collectively, the "plaintiffs"), against The Kroger Company ("Kroger") after Lomax slipped and fell in a Kroger store. A jury found in favor of the plaintiffs and awarded damages, and the trial court entered judgment accordingly. Thereafter, the court entered an order (1) granting Kroger's motion for a judgment notwithstanding the verdict ("JNOV"), concluding that the plaintiffs failed to show that Kroger had actual or constructive knowledge of the hazardous condition and that Lomax had superior knowledge of the hazard and, (2) holding that should the JNOV be reversed, Kroger was entitled to a new trial because that the verdict was contrary to the evidence. The plaintiffs appeal that order, arguing that the trial court erred in finding that there was no evidence that Kroger had constructive knowledge of the hazard that caused Lomax to slip and fall because, according to the plaintiffs, (1) Kroger failed to follow reasonable floor inspection procedures and (2) a Kroger employee was in the immediate vicinity of the fall and could have removed the hazard. The plaintiffs also argue that the trial court erred by granting a new trial where the verdict was not contrary to the evidence. For the reasons that follow, we reverse in part and affirm in part.

         If the record contains "any evidence upon which the verdict can be based, the jury is free to disbelieve whatever facts are inconsistent with their conclusion and the court cannot substitute its conclusion for that of the jury and enter a [JNOV]." Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 647 (522 S.E.2d 467) (1999) (emphasis supplied).

When considering whether the trial court erred by granting a motion for JNOV, we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; a JNOV is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. Thus, a JNOV may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. If the evidence is conflicting, or if insufficient evidence exists to make a "one-way" verdict proper, a JNOV should not be granted.

Crook v. Foster, 333 Ga.App. 36, 38 (1) (775 S.E.2d 286) (2015) (citations and punctuation omitted; emphasis in original). When reviewing the grant or denial of a motion for JNOV, "appellate courts must view the evidence in the light most favorable to the party securing the jury verdict." Plane v. Uniforce MIS Services of Georgia, Inc., 232 Ga.App. 757, 758 (503 S.E.2d 621) (1998) (citation and punctuation omitted).

         Thus viewed in the light most favorable to the plaintiffs, the record shows that Freeman Lomax entered a Kroger store on January 24, 2014, at approximately 5:33 p.m. At 5:45 p.m., he entered the produce department, pushing a shopping cart containing a hand-held shopping basket and several grocery items. Lomax parked his shopping cart in the produce department and used the basket to return some of the grocery items to their respective shelves. At 5:53 p.m., Lomax returned to his shopping cart and, as he began pushing the cart, slipped on the tile floor and fell in a puddle of water, injuring his shoulder and head. A store security guard offered assistance, and called "for somebody to come and get [the] water" off the floor. While he was on the floor after the fall, Lomax observed water on the floor and noticed his clothes were "soaking wet." A nearby customer commented that the floor was wet after the fall. Lomax did not know the origin of the water on the floor or how long it had been there. Lomax sustained injuries to his shoulder and head and was taken from Kroger by ambulance to a hospital shortly after the fall.

         The plaintiffs sued Kroger for negligence and loss of consortium. At the close of the plaintiffs' case, Kroger moved for a directed verdict, arguing that there was no evidence that Kroger had actual or constructive knowledge of the water on the floor. The trial court denied the motion. At the close of all of the evidence, Kroger renewed its motion for a directed verdict, and the trial court again denied the motion. The jury returned a verdict for the plaintiffs on February 8, 2017, awarding damages to Lomax in the amount of $500, 000 on his negligence claim, and $200, 000 to Ms. Lomax for loss of consortium. The trial court then entered judgment on the jury's verdict. Kroger filed a motion for JNOV or, in the alternative, a motion for a new trial. Following a hearing on the motion, the trial court granted the motion for JNOV. The court further held that in the event the JNOV was vacated or reversed on appeal, Kroger would be entitled to a new trial.

         In granting the motion for JNOV, the trial court analyzed the surveillance video and ruled that the plaintiffs had failed to establish that any of Kroger's employees had either actual or constructive knowledge of the hazardous water puddle on the floor. Further, the trial court held that the evidence showed that Lomax had superior knowledge of the hazard.

         1. The plaintiffs argue that the trial court erred in finding there was no evidence in the record that Kroger had constructive knowledge of the water puddle on the floor. We agree.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove: (1) that the defendant had actual[1] 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). In slip and fall cases, constructive knowledge may be imputed to the owner/occupier where there is evidence that (1) an employee of the proprietor was in the immediate area of the hazard and could have easily seen and removed it; or (2) the hazard had been present long enough that the proprietor could have discovered it through reasonable inspection procedures. Wallace v. Wal-Mart Stores, Inc., 272 Ga.App. 343, 345 (612 S.E.2d 528) (2005); see also Kroger Co. v. Brooks, 231 Ga.App. 650, 654 (1) (a) (500 S.E.2d 391) (1998). With regard to the second method of showing constructive knowledge,

[t]he length of time the substance must remain on the floor before the owner should have discovered it and what constitutes a reasonable inspection procedure vary with each case, depending on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store's location.

Davis v. Bruno's Supermarkets, Inc., 263 Ga.App. 147, 150 (2) (587 S.E.2d 279) (2003) (citation and punctuation omitted). However, a plaintiff in a slip and fall action "need not show how long the hazard has been present" unless the owner has demonstrated that "it had a reasonable inspection program in place[] [and] that such program was actually carried out at the time of the incident." Shepard v. Winn Dixie Stores, Inc., 241 Ga.App. 746, 748 (1) (527 S.E.2d 36) (1999) (citations, punctuation, and footnotes omitted); see also Ingles Markets, Inc. v. Martin, 236 Ga.App. 810, 811 (513 S.E.2d 536) (1999) (citation and punctuation omitted) ("a plaintiff need not show how long a substance has been on ...


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