Jackson v. CAMILLA TRADING POST, INC.

*169Andrews, Judge,

dissenting.

The trial court correctly granted summary judgment in favor of defendant Camilla Trading Post because the record shows that the substance in which Jackson slipped was clearly visible on the floor of the defendant’s store and she should have seen it in the exercise of ordinary care.

In opposition to the defendant’s motion for summary judgment, Jackson produced her own affidavit and the affidavit of her friend, Gilbert, who drove her to the store.

In her affidavit, Jackson stated that, after she looked át a refrigerator and agreed to purchase it, she started toward the front of the store and within about three or four feet from the refrigerator slipped and fell when she stepped in a slick and slippery substance on the floor of the store. She stated that, at the time of her fall, she “did not pay any attention to or notice any particular substance located on the floor in Defendant’s store.” However, she stated that she later observed and smelled an oily substance on her skirt and slip after she fell. She stated that the salesman who had shown her the refrigerator “was in a position to observe whatever the defect was which caused the floor to be slick and slippery,” but that, at the time she fell, the salesman was directly behind her.2

In his affidavit, Gilbert stated that when he saw Jackson on the floor of the store: “[He] observed on the concrete floor a slick, oily substance where Ms. Jackson had fallen. The substance on the floor appeared to be oil and it was located directly underneath and around Ms. Jackson.” He further stated that the oily substance was visible to him “and should have been visible to any employee of Defendant who was in the immediate area at the time Ms. Jackson fell.” He concluded that: “[I]t is apparent to undersigned that Ms. Jackson fell on the slick oily substance located on the floor where she fell which was observed by undersigned. The floor where the oily substance was observed by the undersigned was discolored by the presence of the oil.”

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Even *170if we assume, as Jackson contends, that the defendant had constructive knowledge of the substance on the floor because an employee of the defendant was in the area and had the means and opportunity to have seen and removed the hazard (see Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968)), Jackson cannot recover under the second prong of the two-part Alterman Foods, supra, test.

Decided July 14, 1995 Reconsideration denied July 26, 1995 Geer & Rentz, Donald D. Rentz, Jack F. Varner, for appellant. Moore, Clarke, Duvall & Rodgers, Luanne Clarke, for appellee.

Under the second prong of the Alterman Foods test, the defendant is entitled to summary judgment if the facts show that Jackson knew about the substance on the floor or in the exercise of ordinary care should have discovered it, unless the defendant somehow prevented her from discovering it. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). “The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” Alterman Foods, supra at 623.

Jackson’s own affidavits in opposition to summary judgment establish that she slipped and fell in a large area of oily substance on the floor that was observed by Gilbert at the time of the fall, which was visible to others in the area, and which clearly discolored the concrete floor. There is nothing in the record showing that the defendant prevented Jackson from discovering the clearly visible hazard. Since the hazard was clearly visible, and Jackson should have seen it in the exercise of ordinary care, the defendant was entitled to summary judgment. Smith, supra; Alterman Foods, supra; Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994).

Even though the trial court granted summary judgment on another basis, a judgment right for any reason will be affirmed. Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 78 (441 SE2d 421) (1994).

I am authorized to state that Presiding Judge Birdsong and Judge Smith join in this dissent.

Although the majority quotes from the trial court’s order finding that the store employee was walking immediately in front of Jackson when she slipped and fell, this finding is not supported by the record, which clearly shows that Jackson was walking in front of the employee when she slipped and fell.