dissenting.
I respectfully dissent from the majority’s opinion. The trial court’s grant of summary judgment was proper for two reasons.
First, the evidence here established that Kroger had complied with its duty to Chaves. In support of its motion for summary judgment, Kroger submitted the affidavit of a clerk, Larry Dewberry, in which he stated that he observed another Kroger clerk sweeping the area in which the fall occurred minutes before Chaves fell. After the aisle was swept and about two minutes before the fall, Dewberry checked the aisle to make sure that there were no foreign substances on the floor. He determined that the floor was completely clear and dry.
Chaves submitted the affidavit of Kroger employee Westbrook for the purpose of showing that Kroger knew that the substance was on the floor. In it, Westbrook stated that he had cleaned the aisle and was returning to the area to clean water he had seen running out from the freezer. Westbrook stated: “[o]n my way to clean the floor, I saw Chavez [sic] fall.” Even according to the plaintiff’s evidence, Kroger was exercising ordinary care in keeping the premises safe.
Kroger had done all that was possible to eradicate any spill from the area and had complied with its duty under Georgia law. “While a proprietor is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show that the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980).” Smith v. *352Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202) (1992); see also Wiley v. Winn-Dixie Stores, 204 Ga. App. 570 (420 SE2d 20) (1992). Here, the evidence is that a Kroger employee was on his way to the area to clean it, and that the area had been inspected no more than two minutes earlier. Given these facts, Kroger complied with its duty under Georgia law and this essential element of Chaves’ complaint was pierced.
Decided May 27, 1994. S. George Handelsman, for appellant. Webb, Carlock, Copeland, Semler & Stair, Gregory H. Wheeler, for appellee.Secondly, there is no showing that Chaves exercised ordinary care for his own safety. At his deposition, Chaves testified that he was not looking at the floor at the time of his fall, but that he was pushing his buggy and was looking at his shopping list. He stated that he did not know what substance caused his fall. In a case similar to the instant one, Minor v. Super Discount Markets, 211 Ga. App. 123 (438 SE2d 384) (1993), this court stated: “[w]hen the perilous condition is known to the proprietor and not known to the person injured, a recovery is permitted, but the person injured is not excused from the duty to exercise ordinary care for her own safety.” Minor, supra at 124. “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.” (Citations omitted.) Alterman Foods, supra at 623. Here, Chaves failed to exercise the requisite ordinary care for his own safety and should be barred from recovery.
I am authorized to state that Presiding Judge Birdsong and Judge Blackburn join in this dissent.