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Foodmax, Inc. v. Terry
Citations: 436 S.E.2d 725; 210 Ga. App. 511; 93 Fulton County D. Rep. 3658; 1993 Ga. App. LEXIS 1254Docket: A93A1321
Court: Court of Appeals of Georgia; October 12, 1993; Georgia; State Appellate Court
Catherine Terry sued Foodmax, Inc. for injuries sustained from slipping on a dark substance resembling cola at a Foodmax supermarket. The trial court denied Foodmax's motion for summary judgment, prompting an interlocutory appeal to the Court of Appeals of Georgia. Evidence presented by Terry indicated she was searching for peas when she slipped on two small puddles of the substance, which she described as sticky and visible only if she had been looking at the floor. Two Foodmax employees, store manager Terry Slone and cashier Mary Stell, testified about the store’s policy requiring regular inspections for foreign substances. Slone inspected the area 20 minutes before the incident, and Stell did so five minutes prior, both reporting no foreign substances present. After the fall, both employees observed a puddle resembling cola. Foodmax contended that summary judgment should have been granted due to a lack of evidence regarding its knowledge of the substance. For a proprietor to be liable in slip and fall cases, it must be shown that the proprietor had actual or constructive knowledge of the hazardous condition. Constructive knowledge can be established if an employee was nearby and could have seen the substance or if the substance had been present long enough that it should have been discovered. Foodmax successfully argued against the first theory of constructive knowledge, as the employees' views were blocked by Terry. Furthermore, it provided conclusive evidence of a cleaning and inspection program being followed, which dismissed the second theory of constructive knowledge, as the inspections conducted before the fall showed no foreign substances. In the case involving Foodmax, the court determined that there was no actionable negligence regarding a foreign substance on the floor because it had not been present long enough (10 to 15 minutes) for the proprietor to discover it. The court noted that the thawing of frozen vegetables prior to the plaintiff's fall did not contradict evidence that they had only been there for a short time. Additionally, the plaintiff Terry's description of the substance as dry and sticky did not contradict direct evidence that it was not present five minutes before her fall. The court emphasized that the sticky nature of the substance could be explained by multiple factors, which did not imply that the owner had constructive knowledge of it. The court also ruled that Terry failed to exercise ordinary care for her own safety, as she could have seen the dark substance against the light floor had she looked down. Her claim that she was distracted searching for merchandise was dismissed, as the court stated that items on shelves do not constitute a distraction that absolves a plaintiff of the responsibility to look where they are walking. Ultimately, the trial court's denial of Foodmax's motion for summary judgment was reversed, indicating that there were no material facts to support a claim of negligence or a lack of ordinary care by Terry.