KMart Corp. v. Jackson

Ruffin, Judge.

Marian Jackson sued KMart Corporation for injuries she sustained when she slipped in a pool of detergent and injured her back.1 Jackson underwent multiple surgeries as a result of her injury and continues to take medication for her ongoing back problems. The jury awarded her $462,000 in damages. In its sole enumeration of error on appeal, KMart argues that the trial court erred in failing to grant a directed verdict because Jackson failed to prove that KMart had either actual or constructive knowledge of the hazardous condition that caused Jackson to slip. For reasons which follow, we affirm.

“The granting of . . . [a] directed verdict is a very, very grave matter.” (Punctuation omitted.) Svc. Merchandise v. Jackson, 221 Ga. App. 897, 898 (1) (473 SE2d 209) (1996). In directing a verdict, the trial court takes the case away from the jury and substitutes its own judgment for the combined judgment of the jury. Id. In reviewing the trial court’s denial of a motion for directed verdict, we construe the evidence most favorably to the party opposing the motion, and we will not reverse the ruling unless the evidence and all reasonable deductions therefrom demand a particular verdict. Id.; OCGA § 9-11-50 (a). “ ‘On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the “any evidence” standard.’ ” Kroger Co. v. Brooks, 231 Ga. App, 650, 651 (500 SE2d 391) (1998).

Viewed in a light most favorable to Jackson, the evidence showed that she visited a KMart store on July 3, 1991. While Jackson was turning into an aisle that contained cleaning supplies, her shopping cart slipped away. As Jackson grabbed for the cart, she began to slide in a puddle of yellow liquid detergent. Although Jackson never fell, she testified that she “stiffened up” and “felt like lightning was going through” her. After Jackson stopped, she turned around and saw a pool of yellow liquid that spanned the breadth of the aisle and approximately two-thirds of its length.2 She also saw a bottle cap, but did not see an empty bottle on the floor. She looked at the shelves and saw a bottle without a cap. According to Jackson, immediately after she slipped she was approached by Kennis and a stock boy.3 She testified that it appeared as if the two were approaching the spill. Kennis asked Jackson “did you go through that,” and Jackson responded *177affirmatively. Kennis then told the stock boy to stand by the spill to make sure no one else walked down the aisle while Kennis went to get a mop. Kennis returned with the mop and directed the stock boy to clean the spill. Although Kennis saw an empty detergent bottle, he could not recall who found the bottle or where it was located. Kennis also could not recall the name of the stock boy who cleaned the spill, and at trial, Kennis was the only KMart employee to testify. According to Kennis, he did not know about the spill until he walked up and saw Jackson standing near the puddle.

In order to recover for her injuries, Jackson must prove “(1) that [KMart] had actual or constructive knowledge of the hazard; and (2) that [she] lacked knowledge of the hazard despite the exercise of ordinary care.” (Punctuation omitted.) Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 509 (2) (496 SE2d 732) (1998). Here, KMart asserts that Kennis’ unequivocal, uncontradicted testimony that he did not know about the spill before Jackson slipped warrants a directed verdict. We disagree.

As an initial matter, the jury arguably could have found that KMart had actual knowledge of the spill notwithstanding Kennis’ testimony to the contrary. There were marked discrepancies between Kennis’ and Jackson’s testimony regarding the sequence of events. Compare Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (a) (512 SE2d 2) (where evidence uncontradicted, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists). Whereas Jackson testified that Kennis and the stock boy approached the spill together, Kennis testified that he was patrolling the store alone and sent for the stock boy only after he saw Jackson near the spill. The jury apparently believed Jackson that Kennis was with the stock boy. If the jury felt Kennis was not truthful, they could have concluded he had something to hide — namely, the reason he was with the stock boy. It is not unreasonable to infer that Kennis, the store manager, directed a stock boy to clean up the spill. We also note that KMart never identified the stock boy. KMart’s failure to identify him permits the jury to infer that he could have seen the spill, and that KMart should thus be charged with actual knowledge. See Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).

Moreover, even if KMart did not have actual knowledge, the jury was authorized to conclude that the store had constructive knowledge. Constructive knowledge can be established “in one of two ways: by evidence that an employee was in the immediate area of the hazard and could easily have discovered and removed it, or by showing that the owner did not use reasonable care in inspecting the premises.” Deloach v. Food Lion, 228 Ga. App. 393, 394 (491 SE2d 845) (1997).

*178With regard to the second method, a jury may infer constructive knowledge unless KMart shows “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.” Ingles Markets v. Martin, 236 Ga. .App. 810, 811 (513 SE2d 536) (1999). Kennis testified that KMart’s inspection policy consisted of having employees walk the store. According to Kennis, as a manager, he would walk from “associate to associate” and that associates would “walk and make sure if there are any customers in the area that need help, whether they’re putting out the stock or ringing somebody up. We are constantly walking the store.” However, Kennis admitted that employees did not have “scheduled areas” for which they were responsible. Additionally, Kennis never testified that any KMart employee had the specific task of inspecting floors. Under these circumstances, we cannot say that KMart’s inspection procedure is reasonable as a matter of law. Rather, we believe that the facts gave rise to a jury issue on the reasonableness of KMart’s inspection policy and the jury was authorized to conclude that it was not reasonable. See Jones v. Krystal Co., 231 Ga. App. 102, 104-105 (d) (498 SE2d 565) (1998) (reasonableness of inspection policy was question for jury).

Additionally, we cannot say that KMart established, as a matter of law, that it actually carried out its inspection program on the day Jackson slipped. The only evidence presented in this regard was Ken-nis’ testimony that he was “walking the store” and his estimate that he had “been in [the] vicinity” of the spill “probably 15 minutes, at least” before he saw Jackson. Kennis never stated that he was in the aisle where Jackson slipped, nor did he state that, when he was in the vicinity, he inspected the floor. Compare Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362) (1992) (manager testified that the floor was inspected routinely and clerk averred he inspected the area 30 minutes prior to patron’s fall).

“The existence of. . . constructive knowledge is a matter for the jury when there is evidence from which it may be inferred.” (Punctuation omitted.) Brooks, supra at 654 (1) (a). Although the evidence of KMart’s constructive knowledge was not overwhelming, we must remember that

[i]t is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.

*179(Punctuation omitted.) McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 183 (2) (129 SE2d 408) (1962). As there was some evidence from which the jury could infer that KMart had actual or constructive knowledge, the trial court did not err in denying KMart’s motion for directed verdict.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Smith and Eldridge, JJ, concur. Andrews, P. J., dissents.

There was some evidence suggesting the liquid on the floor was bleach rather than detergent.

KMart store manager Jim Kennis testified the aisle was approximately five feet wide and twenty-five feet long. According to Kennis’ estimation, the spill was only two feet in diameter.

Kennis testified that he was patrolling the store when he saw Jackson and that the stock boy was not with him when he approached her.