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                               http://www.gaappeals.us/rules


                                                                    March 10, 2017




In the Court of Appeals of Georgia
 A16A1724. JOHNSON v. ALL AMERICAN QUALITY FOODS, DO-066
     INC.

      DOYLE, Chief Judge.

      This case arises from the trial court’s order granting summary judgment to a

Food Depot grocery store in a slip-and-fall case filed by a shopper, Balinda Johnson,

against Food Depot’s parent company, All American Quality Foods, Inc. (“All

American”). Johnson appeals, arguing that the trial court erred by granting summary

judgment to All American. For the reasons that follow, we reverse.

      “Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. We review a grant or denial
of summary judgment de novo and construe the evidence in the light most favorable

to the nonmovant.”1

      So viewed, the record shows that Johnson was shopping in the Food Depot

when she slipped in a puddle of liquid from packaged meat. A surveillance camera

recorded a view of the area where Johnson fell, and it showed that seven minutes and

thirty seconds prior to the fall, Johnson, her friend Lorene Evans, and their children

traversed the area of Johnson’s fall. Additionally, immediately prior to her fall,

Johnson walked past the area, browsed either sides of the aisle for less than one

minute, and then walked back the way she had just come, at which point she slipped

and fell on her side.

      According to the inspection log sheet, an employee named Angelo completed

an inspection of the aisle where Johnson fell at 12:01 p.m., approximately 38 minutes

prior to the incident. After Johnson’s fall, the manager on duty, Chris Kempton,

completed an incident report and discovered a trail of “spots of blood and meat

products” in the aisle.



      1
       (Citations and punctuation omitted.) Samuels v. CBOCS, Inc., 319 Ga. App.
421, 422 (742 SE2d 141) (2012), quoting Home Builders Assn. of Savannah v.
Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

                                          2
      All American moved for summary judgment, contending that it had no actual

knowledge of the hazard, it had no constructive knowledge of the hazard and had a

reasonable inspection procedure, and Johnson had superior knowledge based on

traversing the area at least four times prior to the fall. Johnson responded, arguing

that there remained genuine issues of material fact as to when the hazard was created

and whether the inspection procedure was reasonable.

      After a hearing, the trial court issued an order granting All American’s motion

for summary judgment, finding that there was no dispute of material fact as to All

American’s lack of constructive knowledge of the spill. Moreover, the trial court

found that the inspection was reasonable as a matter of law.

      In her sole enumeration of error, Johnson contends that the trial court erred by

concluding as a matter of law that All American had established and carried out a

reasonable inspection on the day of the accident. Thus, Johnson contends that a fact-

finder could infer that All American had constructive notice of the hazard, and

therefore, the trial court erred by granting its summary judgment motion. We agree.

      As an initial matter, we note that Johnson traversed the area of her fall twice

before slipping in the substance during her third crossing. This, however, does not



                                          3
support a finding on summary judgment that Johnson knew or should have known

about the spill as a matter of law.2 That said,

      [All American] is liable for injuries caused by its failure to exercise
      ordinary care in keeping the premises and approaches safe. Thus, [All
      American] was required to exercise ordinary care to protect the invitee
      from unreasonable risks of harm of which the owner/occupier has
      superior knowledge. In a premises liability action, the plaintiff must
      plead and prove that: (1) the defendant had actual or constructive
      knowledge of the hazard; and (2) the plaintiff, despite exercising
      ordinary care for his or her own personal safety, lacked knowledge of
      the hazard due to the defendant’s actions or to conditions under the
      defendant’s control. Thus, to carry its initial burden and to survive a
      motion for summary judgment, a plaintiff must provide evidence that,
      when construed in his or her favor, would enable a rational trier of fact
      to find that the defendant had actual or constructive knowledge of the
      hazard.3

      2
        See Food Lion v. Walker, 290 Ga. App. 574, 577-578 (3) (660 SE2d 426)
(2008); McCoy v. Winn Dixie Stores, 238 Ga. App. 543, 544 (519 SE2d 689) (1999)
(holding that a question of fact exists as to whether plaintiff should have seen a
puddle — a non-static hazard — prior to a fall). See also Wiley v. Liberty Southern,
Inc., 243 Ga. App. 110, 111-112 (532 SE2d 456) (2000) (“At its root, the issue . . .
is whether taking into account all the circumstances existing at the time and place of
[the plaintiff’s] fall, [the plaintiff] exercised the prudence the ordinarily careful
person would use in a like situation.”), quoting Robinson v. Kroger Co., 268 Ga. 735
(493 SE2d 403) (1997).
      3
      (Citation and punctuation omitted.) Samuels, 319 Ga. App. at 423, quoting
American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009);

                                           4
      We agree with the trial court, and Johnson does not contend, that All American

did not have actual knowledge of the hazard. Thus,

      [t]o establish constructive knowledge, [Johnson] must show that (1) a
      store employee was in the immediate area of the hazard and could have
      easily seen the substance or (2) the foreign substance remained long
      enough that ordinary diligence by the store employees should have
      discovered it. Constructive knowledge may be inferred when there is
      evidence that the owner lacked a reasonable inspection procedure. In
      order to prevail at summary judgment based on lack of constructive
      knowledge, the owner must demonstrate not only that it had a reasonable
      inspection program in place, but that such program was actually carried
      out at the time of the incident. In addition, to withstand a motion for
      summary judgment, the plaintiff need not show how long the hazard had
      been present unless the owner has demonstrated its inspection
      procedures.4


Here, there is evidence that All American had an inspection procedure that called for

inspections every hour, which allegedly occurred approximately 38 minutes prior to

Johnson’s fall. And although a time-stamped list of inspections supposedly performed

that day was appended to Kempton’s affidavit, the record shows that Kempton

himself did not perform the inspections and thus could not swear that they were


Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).
      4
          (Citations and punctuation omitted.) Walker, 290 Ga. App. at 576 (1).

                                          5
performed as noted on the printout.5 But pretermitting whether the printout and

Kempton’s affidavit were sufficient to support the grant of summary judgment, this

Court has found that questions of fact exist based on reasonableness of an inspection

procedures even if the inspection occurred as little as 15 minutes to 20 minutes prior

to a fall.6 “The nature of a supermarket’s . . . business creates conditions which cause

slip and falls to occur with some frequency. Under those circumstances, we have held

that premises owners have a duty to inspect with greater frequency.”7 Thus, in this

case, the trial court erred by finding as a matter of law that All American’s hourly

inspection procedure shielded it from liability, and a jury question exists as to




      5
       See Davis v. Bruno’s Supermarkets, 263 Ga. App. 147, 149-150 (1) (587
SE2d 279) (2003).
      6
        See Burnett v. Ingles Mkts, 236 Ga. App. 865, 867-868 (514 SE2d 65) (1999);
Jones v. Krystal Co., 231 Ga. App. 102, 103-104 (b) (498 SE2d 565) (1998). See also
Davis, 263 Ga. App. at 150 (2) (holding that “an inspection may be required more
frequently than every 30 minutes”).
      7
          (Punctuation omitted.) Walker, 290 Ga. App. at 576 (1).

                                           6
whether All American’s procedure was reasonable.8 Accordingly, we reverse the trial

court’s grant of summary judgment to All American.

      Judgment reversed. Barnes, P. J., McFadden, P. J., Ray, and Rickman, JJ.,

concur. Miller, P. J., concurs fully and specially. Andrews, McMillian, and Self., JJ.,

dissent.




      8
           See id. at 576-577 (1).

                                          7
 A16A1724. JOHNSON v. ALL AMERICAN QUALITY FOODS.



      MILLER, Presiding Judge, concurring fully and specially.

      I agree with the majority that the facts in this case create a jury question as to

whether All American Quality Foods’s inspection procedures were unreasonable such

that the supermarket had constructive knowledge of the alleged hazard that caused

Ms. Johnson to fall. I write separately to emphasize that the fact-intensive nature of

slip-and-fall cases will typically preclude summary judgment and require a jury to

consider the merits. This does not mean, however, that this author is indicating that

a plaintiff who merely avoids summary judgment is entitled to recover before the jury.
      To survive summary judgment in a slip-and-fall case, the plaintiff must show

that the supermarket had actual or constructive knowledge of the hazard, and

constructive knowledge can be inferred from a lack of reasonable inspection

procedures. Ingles Markets. Inc. v. Martin, 236 Ga. App. 810, 811 (513 SE2d 536)

(1999). Whether an inspection procedure is “reasonable” depends on the facts and

circumstances of the case. Food Lion v. Walker, 290 Ga. App. 574, 576 (1) (660 SE2d

426) (2008). This Court has said that more frequent inspections may be necessary in

a supermarket setting, but we have never established a bright-line rule for what is a

reasonable interval. Cf. id. (holding that the nature of the supermarket business

requires more frequent inspections, but expressing no opinion on what the frequency

should be). Given the fact-intensive nature of these claims, we should not create a

bright-line rule.

      [S]ummary adjudication as to constructive knowledge arising from the
      duty to inspect is not authorized absent plain, palpable and undisputable
      proof that customary inspection procedures or cleaning practices were
      in place, were actually followed and were adequate to guard against
      known or foreseeable dangers at the time of the patron’s alleged injuries.




                                          2
(Citations and punctuation omitted.) Burnett v. Ingles Markets, 236 Ga. App. 865,

867 (514 SE2d 65) (1999). “The evidence in the case sub judice does not satisfy these

criteria.” Id.

       Certainly there are slip-and-fall cases that are appropriate for summary

judgment. See, e.g., Deloach v. Food Lion, Inc., 228 Ga. App. 393, (491 SE2d 845)

(1997) (summary judgment is proper where the plaintiff has failed to come forward

with evidence to create an issue of fact that the supermarket had constructive

knowledge of the hazard). See also Robinson v. Kroger Co., 268 Ga. 735, 737 (1)

(493 SE2d 403) (1997) (recognizing that summary judgment may be appropriate

where the plaintiff could not establish the defendant’s actual or constructive

knowledge of the hazard). Supermarket slip-and-fall cases turn on the facts, and any

determination of reasonableness of a supermarket’s inspection procedures must

depend on the particular facts of the case. The particular facts of this case do not

warrant adjudication at the summary judgment stage of the litigation.




                                         3
 A16A1724. JOHNSON v. ALL AMERICAN QUALITY FOODS,

       INC.

      ANDREWS, Judge, dissenting.

      I dissent because I believe the trial court correctly found as a matter of law that

the appellee carried out a reasonable inspection procedure and had neither actual nor

constructive knowledge of the hazard.

      1. To demonstrate its lack of constructive knowledge of the hazard in this case,

the appellee relied upon a report generated by an electronic inspection monitoring

system the store utilized. The appellant contends the report was inadmissible hearsay

on the ground the appellee failed to properly authenticate it as a business record.
      Under OCGA § 24-8-803 (6), a document shall not be excluded as hearsay,

where it is

      a memorandum, report, record, or data compilation, in any form, of acts,
      events, conditions, opinions, or diagnoses, if (A) made at or near the
      time of the described acts, events, conditions, opinions, or diagnoses;
      (B) made by, or from information transmitted by, a person with personal
      knowledge and a business duty to report; (C) kept in the course of a
      regularly conducted business activity; and (D) it was the regular practice
      of that business activity to make the memorandum, report, record, or
      data compilation, all as shown by the testimony of the custodian or other
      qualified witness or by certification that complies with paragraph (11)
      or (12) of Code Section 24-9-902 or by any other statute permitting
      certification.


      In this case, the appellee submitted the affidavit of the co-manager of the

grocery store who personally responded to the slip and fall incident. He explained

that it was the store’s policy to conduct formal inspections of the premises every hour

using the Gleason ESP monitoring system, which required the inspecting employee

to walk throughout the store and, at designated inspection sites, to hold a handheld

device up to sensors that recorded the inspection data. The co-manager identified the

system’s computer report attached to the affidavit as a “true and accurate copy of the

inspection report for the date in question.” The computer-generated inspection report,


                                          2
which reflects the date of the incident and was printed the day after the incident,

indicates the time of each inspection stop during each hourly inspection, the identity

of the employee, the number and location of the sensors, and the condition of the

inspected areas.

      The obvious purpose of the monitoring system was to contemporaneously

document compliance with the store’s inspection procedure. Nothing about the

computer report suggests any lack of trustworthiness, and the co-manager’s affidavit

sufficiently authenticated the inspection report. See, e.g., Loyal v. State, 300 Ga.

App. 65 (684 SE2d 124) (2009) (warehouse electronic security log); Hamilton v.

State, 297 Ga. App. 47, 48 (1) (676 SE2d 773) (2009) (motel electronic key card

interrogation log).

      2. “[S]ummary adjudication as to constructive knowledge arising from the duty

to inspect is not authorized absent plain, palpable and undisputable proof that

customary inspection procedures or cleaning practices were in place, were actually

followed and were adequate to guard against known or foreseeable dangers at the

time of the patron’s alleged injuries. [Cit.]” Burnett v. Ingles Markets, 236 Ga. App.

865, 867 (514 SE2d 65) (1999).




                                          3
      In the instant case, the affidavit of the store’s co-manager indicated that part

of its inspection procedure was requiring employees to be on the lookout for hazards

as they went about their jobs during the day. The affidavit and the inspection report

also established the store had a regular procedure of formally inspecting the store

every hour, and the procedure was followed on the day of the incident. In fact, the

inspection report reflects that during the 13-hour period running from 7:55 a.m. to

9:08 p.m. on the day of the incident, a total of 9 hazard clean-ups were recorded,

attesting to the effectiveness of the inspection procedure. That averages out to a

hazard occurring approximately every 1.4 hours, compared to the appellee’s

inspection schedule of every hour.

      The appellee further showed the following: (1) the area where the appellant

fell was inspected approximately 37 minutes before the fall; (2) the substance on the

floor appeared to be meat product or blood; (3) the store’s surveillance video showed

the appellant’s friend traversing the area approximately six minutes before the fall

occurred, with packages of meat in her shopping cart; (4) the video also showed

several other patrons, including the appellant, traversing the area safely during the six

minutes preceding the fall; (5) no store employees were in the immediate area of the




                                           4
hazard; and (6) the store had no knowledge of any leaks from its red meat packaging

prior to this incident.

      Once a defendant demonstrates a lack of actionable constructive
      knowledge by compliance with reasonable inspection procedures, the
      burden shifts back to the plaintiff to show how long the foreign
      substance had been allowed to remain on the floor. The plaintiff must
      show that the substance was on the floor for a length of time sufficient
      for knowledge of it to be imputed to the defendant.


(Citations and punctuation omitted.) Hopkins v. Kmart Corp., 232 Ga. App. 515, 518

(2) (502 SE2d 476) (1998). In the instant case, the appellee presented evidence

showing it carried out a reasonable and effective inspection procedure, but in turn the

appellant came forward with no competent evidence showing anything else that

would impute constructive knowledge of the hazard to the appellee.

      This Court has occasionally found jury issues on the reasonableness of

inspection procedures where the inspections occurred at even shorter intervals than

in this case, but in those cases the store proprietor had some notice of the risk of a

particular hazard. See Food Lion, LLC v. Walker, 290 Ga. App. 574, 576 (1) (660

SE2d 426) (2008). In that regard, the appellant claimed to have overheard a store

employee named “Bob,” but who otherwise was unidentified, remarking that store



                                          5
personnel had not been packaging the meat correctly. But that utterance would not

qualify as an admission under OCGA § 24-8-801, and constituted inadmissible

hearsay. The record is devoid of anything else that would have put the appellant on

notice of the need for more frequent inspections.

      The evidence showed that neither party here had actual knowledge of the

hazard. And as the appellee carried out a reasonable inspection procedure on the day

of the incident and the appellant failed to show anything else that could impute

knowledge of the hazard to the appellee, the majority opinion is in error in reversing

the trial court’s grant of summary judgment for the appellee.

      I am authorized to state that Judge McMillian and Judge Self join in this

dissent.




                                          6
