Pylant v. Samuels, Inc.

Adams, Judge.

Plaintiff Clifton Pylant brought suit against Samuels, Inc. d/b/a Samuels Truck Stop & Restaurant (Samuels) to recover for injuries he allegedly sustained when he slipped and fell in a shower stall owned and operated by Samuels. The trial court granted summary judgment to Samuels, and Pylant filed this appeal. Because we find *359that summary judgment was not appropriate in this case, we reverse the judgment of the trial court.

When viewed in the light most favorable to Pylant, the nonmovant, the record shows the following: Sometime during the evening of October 11, 1999, Pylant stopped at Samuels to eat .dinner with the intention of spending the night in his truck. Samuels has shower stalls and provides soap and towels for the use of its fuel customers; customers who do not purchase fuel can pay $5 for use of the shower. According to Pylant, the shower was filthy but he could not tell if it was “dirt or grease or just filth.” Pylant said he saw two white bars of used soap on the floor as he entered the shower, and that he used a paper towel to pick them up and throw them away. According to Pylant, he had just begun to shower and was washing his face and neck when he slipped and fell. Pylant testified that after he fell he looked down and saw the remains of another bar of soap and that it looked like a “smear.”

1. Pylant argues, and we agree, that disputed issues of material fact precluded summary judgment in this case.

An owner or occupier of land is liable to invitees for injuries caused by his failure to exercise ordinary care in keeping his premises and approaches safe. This duty of ordinary care requires the owner to protect the invitee from unreasonable risks of harm of which the owner has superior knowledge and to inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge. To recover for injuries sustained in a slip and fall action, therefore, the invitee must prove (1) that the owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite the exercise of ordinary care, due to the actions or conditions within the control of the owner.

(Footnote omitted.) Gilbert v. Automotive Purchasing Svc., 254 Ga. App. 770, 771 (563 SE2d 906) (2002).

There is no evidence that Samuels had actual knowledge of the condition of its shower; however, Pylant claims that Samuels did have constructive knowledge. It is well established that:

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 *360time of the incident. [Avery v. Cleveland Avenue Motel, 239 Ga. App. 644, 645-646 (2) (521 SE2d 668) (1999); see Ingles Markets v. Martin, 236 Ga. App. 810, 811 (513 SE2d 536) (1999); Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).] In addition, on a motion for summary judgment, the owner must demonstrate its inspection procedures before the plaintiff must show how long the hazard has been present. [J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 469 (1) (b) (522 SE2d 749) (1999); Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).]

Hutchins v. J. H. Harvey Co., 240 Ga. App. 582, 585 (2) (524 SE2d 289) (1999).

In this case it is undisputed that Samuels did not have a regular inspection or cleaning program in place. Samuels’ owner testified at his deposition that no inspection program or regular cleaning schedule existed; rather, the facilities were cleaned “as needed” or whenever customers complained. Furthermore, Pylant testified that he threw away two bars of soap before entering the shower, which tends to suggest that at least two other patrons had showered before him and that no clean-up or inspection had occurred during the intervening time. Under these circumstances, a jury must decide whether Samuels breached its duty to keep its premises in a reasonably safe condition by failing to conduct or by negligently conducting inspections of its premises. OCGA § 51-3-1; Gilbert v. Automotive Purchasing Svc., 254 Ga. App. at 772; see also Crook v. RaceTrac Petroleum, 257 Ga. App. 179, 181 (570 SE2d 584) (2002) (when the nature of the business is likely to produce a spill or other hazard, frequent inspections may be necessary, and reasonableness of inspection program is for the jury); Gill v. Cooper Tire &c. Co., 231 Ga. App. 482, 485 (3) (499 SE2d 85) (1998) (unusually dangerous condition may impose duty to provide constant patrol of the premises).

2. Samuels contends, however, that summary judgment was appropriately granted because Pylant failed to exercise care for his own safety once he discerned the hazardous condition of the shower.

It is a plaintiff’s knowledge of the specific hazard (precipitating a) slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which plaintiff observes and avoids. Whether or not plaintiff exercised reasonable care under the facts and circumstances for his own safety is a question for the jury.

(Citations, punctuation and footnotes omitted.) Helton v. Riverwood Intl. Corp., 261 Ga. App. 62, 64 (581 SE2d 687) (2003).

*361Although Pylant testified that the shower floor was dirty either with dirt, grease, or just filth, he has never contended that these substances made the floor noticeably slippery or caused him to fall; rather he has steadfastly maintained that he slipped on a used piece or smear of soap which he did not see prior to his fall. Pylant was obviously exercising care for his own safety when he saw and disposed of the two used bars of soap before he entered the shower; the fact that he did not see each piece or smear that had been left on the floor does not establish that he failed to exercise reasonable care for his own safety as a matter of law. The evidence as to this issue was not “plain, palpable, and undisputed,” Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997), and Samuels was not entitled to summary judgment on this basis. Hutchins v. J. H. Harvey Co., 240 Ga. App. at 586 (3); Stephens v. Kroger Co., 236 Ga. App. 871, 873 (2) (513 SE2d 22) (1999); Gill v. Cooper Tire, 231 Ga. App. at 486 (5).

Judgment reversed.

Johnson, P. J., Blackburn, P. J., Eldridge, Barnes and Mikell, JJ, concur. Andrews, P. J., dissents.