Slip and Fall In a Grocery Store Injury Action
In Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 S.E.2d 403) (1997), our Supreme Court reiterated that in 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;
(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.
X sued H Company for damages after she allegedly fell in a H's grocery store.
X appeals from the trial court's grant of summary judgment to H.
Because the record shows X had actual knowledge of the box that caused her fall, we affirm.
It also lightened the evidentiary load placed upon slip-and-fall plaintiffs opposing summary judgment by requiring a defendant to produce evidence showing negligence on the part of the plaintiff before the plaintiff is required to produce rebuttal evidence on this issue. Id. at 748.
The evidence in this case consists of a deposition and affidavit from X and the deposition of a H's employee. X testified in her deposition that when she turned onto the dairy aisle to get butter and eggs, she saw three or four store employees stocking shelves and a lot of boxes on the aisle floor and on pallets.
X pushed her grocery cart around the boxes in order to get to the butter and eggs. She then walked around the front of her cart, stepped around a box that was right in front of her cart, and picked up a carton of butter. While placing the butter in her cart, she fell over the box she had previously stepped around.
At times, X testified that she fell over some other boxes in addition to the box located in front of her cart. Because these boxes had been opened and broken down, they were lying flat on the floor.
X agreed, however, that the box in front of her cart was the main box over which she fell. In an affidavit signed by X three months after her deposition, she swore that she "fell over a box." (Emphasis supplied.) In both her deposition and affidavit, X swore that she did not talk with any H's employees before her fall.
Curtis Bess, a former H's employee, testified that he was stocking goods in the dairy aisle when X fell. Bess testified that he placed a case of butter he planned to stock next to the dairy cooler.
According to Bess, X approached him with a coupon in her hand and asked for his assistance in locating the item. As Bess showed X where the item was located, he warned X to be careful of the box he had placed against the dairy cooler.
He then turned around and walked away from X to get more butter from a cart to stock in the dairy cooler. When he turned back toward the dairy cooler with the butter in his hands, he saw X stumble over the same box about which he had warned her. According to Bess, X caught herself and never fell to the floor or against the dairy cooler.
In this appeal, X contends these facts do not justify summary judgment in favor of the defendant because issues of fact exist on whether she "had equal knowledge of the particular box she tripped over" and whether Bess "distracted [her] when he told her to watch out for the box." (Emphasis supplied.) We disagree.
First, the record shows that X had actual knowledge of the box that caused her to fall. Second, contrary to the assertions of her counsel on appeal, the record does not show that X was distracted from seeing the box as a result of Bess's warning to watch out for the box.
Instead, it shows that either (1) Bess warned X about the box well before her alleged fall or (2) nothing was said to X by a H's employee before her fall that could have caused a distraction.
Because the record shows that X had actual knowledge of the box over which she fell, the trial court did not err when it granted summary judgment to H. See McCoy v. West Bldg. Materials of Ga., 232 Ga. App. 620, 622 (502 S.E.2d 559) (1998).