                               THIRD DIVISION
                                  GOBEIL,
                           COOMER and HODGES, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                   February 21, 2019




In the Court of Appeals of Georgia
 A18A1491. FREEMAN LOMAX et al. v. THE KROGER COMPANY.

      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 SE2d 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


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      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 SE2d 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 SE2d 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

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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

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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 SE2d 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


      1
        The plaintiffs do not contend that Kroger had actual knowledge of the water
puddle on the floor. Therefore, in order to demonstrate knowledge, the plaintiffs must
point to evidence that Kroger had constructive knowledge of the hazard. Prescott v.
Colonial Properties Trust, Inc., 283 Ga. App. 753, 754 (1) (642 SE2d 425) (2007).

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inspection procedures. Wallace v. Wal-Mart Stores, Inc., 272 Ga. App. 343, 345 (612

SE2d 528) (2005); see also Kroger Co. v. Brooks, 231 Ga. App. 650, 654 (1) (a) (500

SE2d 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 SE2d 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 SE2d 36) (1999) (citations, punctuation,

and footnotes omitted); see also Ingles Markets, Inc. v. Martin, 236 Ga. App. 810,

811 (513 SE2d 536) (1999) (citation and punctuation omitted) (“a plaintiff need not

show how long a substance has been on the floor unless the defendant has established




                                          6
that reasonable inspection procedures were in place and followed at the time of the

incident”).

      Here, there was conflicting evidence as to whether Kroger properly

implemented its inspection procedures on the date of Lomax’s accident. A clerk in

the store’s produce department was restocking produce prior to the time Lomax fell,

and surveillance video depicts the produce clerk walk by the area where Lomax fell

at 5:37 p.m. The clerk testified that he did not look down at the floor as he walked by

this area and did not observe a sizeable puddle of water at this time, but if he had, he

would have cleaned and removed it. The produce clerk also testified regarding the

store’s usual inspection procedures. Store employees were trained to inspect floors

and check for spills or other hazards. In the produce department, employees swept the

floor at the end of their shifts. The produce clerk’s shift did not end until 10 p.m., and

he had not yet performed a sweep of the produce section at the time Lomax fell, nor

had he performed an inspection of the floor.

      In its order granting the motion for JNOV, the trial court characterized the

produce clerk’s traversing the produce section where Lomax fell as a

“checkup/walkthrough” of the area. The jury viewed the surveillance footage of the

produce clerk and heard his testimony regarding the same. This evidence did not

                                            7
demand a finding that the clerk’s walk-through constituted an inspection, and the trial

court erred in substituting its own judgment for that of the jury on this issue. Augusta

Country Club, Inc. v. Blake, 280 Ga. App. 650, 655 (1) (a) (634 SE2d 812) (2006)

(where plaintiff presented some evidence that hazard would have been discovered if

defendant had followed its customary inspection and maintenance procedures, trial

court did not err in denying motion for directed verdict).

      The store’s manager also testified as to Kroger’s customary “store inspection

plan.” This policy requires employees to clean spills or debris from the floor if they

notice anything, and for courtesy clerks to perform six “complete sweep[s]” of the

store daily. These sweeps consist of an employee cleaning with a long broom in every

aisle and department. When employees perform floor sweeps, they electronically log

the sweeps into the store’s computer system using a numerical code. The store’s

sweep log for the date of Lomax’s fall showed that a courtesy clerk commenced a

storewide sweep at 5:29 p.m. and completed the sweep at 5:53 p.m. However,

surveillance video depicts the same clerk assisting customers at the cash register at

the time she supposedly clocked out for the complete sweep, and cleaning the store

restroom at the time she supposedly completed the sweep. The manager confirmed

that the courtesy clerk did not complete the sweep, and testified that the clerk may

                                           8
have clocked out for the sweep, but failed to perform the sweep. The manager was

unable to explain the discrepancy in the electronic sweep log and the surveillance

footage or to identify any employee who actually carried out the inspection

procedures, and the jury was authorized to resolve this conflict in the evidence

adversely to Kroger. See Shepard, 241 Ga. App. at 749 (1) (in slip and fall case, grant

of summary judgment in favor of defendant grocery store reversed where manager’s

affidavit did not reflect that he observed or had personal knowledge of the inspection

procedures carried out on day of plaintiff’s injury). The evidence adduced at trial and

outlined above permitted a conclusion that Kroger failed to adhere to reasonable

inspection procedures on the date of Lomax’s fall, and therefore had constructive

knowledge of the hazard. Accordingly, the trial court erred in setting aside the

verdict.

      Because there was evidence from which a jury could infer that Kroger had

constructive knowledge of the hazard (based on its failure to follow reasonable

inspection procedures), we need not reach the issue of whether sufficient evidence

existed to create a jury issue on whether Kroger employees were in the immediate

area of the hazard and could have easily seen and removed it. Kroger Co. v.

Schoenhoff, 324 Ga. App. 619, 623 (751 SE2d 438) (2013).

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      2. The Lomaxes also challenge the trial court’s grant of Kroger’s motion for

a new trial. We find no abuse of discretion and hence affirm the grant of a new trial.

      As required by OCGA § 9-11-50, at the time it ruled on the motion for a JNOV,

the trial court also ruled on Kroger’s motion for a new trial. The trial court

conditionally granted the motion based on its determination that the jury’s verdict was

contrary to the evidence and against the principles of justice and equity. See OCGA

§ 9-11-50 (c) (1) (“If the motion for [JNOV] . . . is granted, the court shall also rule

on the motion for a new trial, if any, by determining whether it should be granted if

the judgment is thereafter vacated or reversed and shall specify the grounds for

granting or denying the motion for new trial.”); see also OCGA §§ 5-5-20 (“In any

case when the verdict of a jury is found contrary to evidence and the principles of

justice and equity, the judge presiding may grant a new trial before another jury.”)

and 5-5-21 (“The presiding judge may exercise a sound discretion in granting or

refusing new trials in cases where the verdict may be decidedly and strongly against

the weight of the evidence even though there may appear to be some slight evidence

in favor of the finding.”).

      Unlike our assessment of a trial court’s grant of a motion for a JNOV, we

review the first grant of a new trial for an abuse of discretion. See OCGA § 5-5-50

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(“The first grant of a new trial shall not be disturbed by an appellate court unless the

appellant shows that the judge abused his discretion in granting it and that the law

and facts require the verdict notwithstanding the judgment of the presiding judge.”);

see also Thomas v. Wiley, 240 Ga. App. 135, 137 (3) (522 SE2d 714) (1999) (citation

omitted) (“in this state the trial judge is vested with the strongest of discretions to

review the case and to set the verdict aside if he is not satisfied with it”).

      Here, the trial court interpreted the surveillance video as evidence that Lomax

had superior knowledge of the hazard. Although there was conflicting evidence on

the issues as summarized above, the record contains evidence from which the jury

could have found that Kroger lacked knowledge of the hazard and followed

reasonable inspection procedures. Because the conflicting evidence would have

authorized the jury to return a verdict for Kroger, the facts do not require the verdict

notwithstanding the judgment of the presiding judge per OCGA § 5-5-50.

Accordingly, we find no abuse of the trial court’s discretion. See Mosley v. Warnock,

282 Ga. 488, 491 (2) (651 SE2d 696) (2007).

      Judgment affirmed in part and reversed in part. Coomer and Hodges, JJ.,

concur.



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