FREEMAN LOMAX et al.
THE KROGER COMPANY.
GOBEIL, COOMER and HODGES, JJ.
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.
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)
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).
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.
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.
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
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 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 ...