Recent Developments in Slip/Fall Law or That Grape on the Floor in the Produce Aisle is Still Keeping the Appellate Courts Busy

By Noel H. Benedict

Published in the Gwinnett Bar Association Newsletter

The Georgia Supreme Court landmark slip/fall decision of Robinson v. Kroger, 268 Ga. 735 (1997) was presumed by many to take most slip/fall cases out of the Appellate Courts, at least on summary judgments, as Defendant’s negligence and Plaintiff’s contributory negligence or assumption of risk could all be fact questions. That did not happen.

The Georgia Court of Appeals has given, through a series of cases, the Plaintiffs in slip/fall cases some very helpful ammunition and has given the Defendants another way to obtain a summary judgment.

For the Defendant, the new way to obtain a summary judgment is to establish that the Plaintiff had actual knowledge of the defective condition that caused the fall (such as that pesky little grape in the grocery produce aisle) and that the Plaintiff knew about that defective condition (the grape lying in wait) before the fateful step. The legal reasoning behind this approach is that the premises owner’s or occupier’s liability is based upon the premises owner’s superior knowledge of the defect. If the Plaintiff knows about the defect as well, prior to the fall, the knowledge is equal and the Plaintiff will lose. For example, in Yasinsac v. Colonial Oil Properties, Inc., 541 S.E. 2d 109, the Plaintiff had stepped up on the raised platform to a gas station attendant booth prior to her all. She had knowledge that the booth was on a raised platform, so when she stepped back, fell, and broke her hip, that equal knowledge barred her recovery. In Gilliam v. Fletcher Bright Company, 535 S.E. 2d 325, the Plaintiff’s claim was barred because she was generally aware of the ice and snow from the time she left her house until she reached the convenience store parking lot. Her knowledge of the ice and snow was equal to the Defendant’s knowledge at the time she fell, and her case was barred. In Means v. Marshall of MA, 532 S.E. 2d 740, 243 Ga. App. 419, the Plaintiff in the dressing room of the clothing store saw the tags, hangars, and garment paraphernalia on the floor. However, she somehow slipped on this debris when she went to chase after her granddaughter and her claim was barred by her equal knowledge of the debris on the floor.         

What the Court of Appeals has taken away, they have also given. In slip/fall cases, the Plaintiff will lose if the Plaintiff cannot establish the Defendant’s superior knowledge of the defect. See Jackson v. K-Mart Corporation, 529 S.E.2d 404, 242 Ga. App. 274, where the Plaintiff failed to show that the Defendant knew the doormat would roll up in the wind. Defendants will rarely admit that they knew about a defect and you cannot always catch an employee “staring at the grape before it is trod upon,” leaving the only realistic avenue for most Plaintiffs being that of constructive knowledge. In general, there are three ways a premises owner/occupier acquires constructive knowledge:

  1. They do not bother doing any sort of premises inspection looking for defects or danger.
  2. They have an inspection procedure, but their inspection procedure is inadequate.
  3. They have an inspection procedure, but the employees doing the inspection are not doing their job; the inspection is not done in accordance with their own procedure.

Generally, reasonableness of a store’s inspection procedure is a jury issue. In Shepherd v. Winn Dixie Stores, Inc., 527 S.E. 2d 36, 241 Ga. App. 745, the court held that an owner/occupier that fails to carry out periodic inspections has constructive knowledge of holes or other defects in the parking lot. In Jackson v. Waffle House, Inc., 573 S.E.2d 188, 245 Ga. App. 371, a slip/fall summary judgment for the Defendant was even reversed where the Plaintiff fell on ice, but there was a question as to the adequacy of the store’s inspection procedure. In Kauffman v. Eastern Food and Gas, Inc., 539 S.E. 2d 599, Defendant’s constructive knowledge of a hazardous condition can be inferred where there is evidence of a lack of reasonable inspection procedure. Hutchins v. J.H. Harvey Company, 524 S. E. 2d 289, 240 Ga. App. 582, generally held for a Defendant (owner/occupier) to win summary judgment claiming a lack of constructive knowledge, he must first show an adequate inspection procedure and then show that the procedure was followed; and, without that, constructive knowledge arises. See Daniels v. Atlanta National League Baseball Club, Inc., 524 S.E. 2d 801, 240 Ga. App. 751.

In slip/fall cases now, going back to our troublesome grape, the Plaintiffs want to show