Rodriguez v. Piggly Wiggly Southern, Inc.

McMurray, Presiding Judge.

Plaintiff brought this “slip and fall” case against Piggly Wiggly Southern, Inc. She alleged that she was injured when she slipped and fell in a puddle of rainwater just inside the door of the grocery store. In the amended complaint, plaintiff maintained that at the time she entered defendant’s store, the floor was wet and extremely slippery; that defendant negligently removed a floor mat (in order to allow it to dry) and failed to replace it; and that defendant was negligent in permitting the floor to become and remain wet and in failing to warn plaintiff of the dangerous condition.

Defendant denied the material allegations of the complaint and moved for summary judgment. The motion was granted by the trial court and plaintiff appealed. Held:

On summary judgment, under OCGA § 9-11-56, “ ‘[t]he evidence must be construed most favorably to the opposing party, and the trial court must give him the benefit of all favorable inferences that may be drawn from the evidence. (Cits.)’ [Cit.]” Norton v. Ga. R. Bank & Trust, 253 Ga. 596, 603 (322 SE2d 870) (1984).

Viewing the evidence in favor of plaintiff, we find the following: Plaintiff often shopped in defendant’s store, going there about once a week. On the day in question, plaintiff, her husband and a friend drove to the store in a hard driving rain. It was still raining when they arrived. Plaintiff was dropped off in front of the store by her husband. She was sheltered from the weather by a twelve-foot canopy which extended out from the roof of the building. She did not notice that it was wet under the shelter or in the store. As she stepped inside the front door she fell when she slipped in a puddle of water approximately six inches in diameter and one-eighth of an inch deep. The store was crowded at the time. A floor mat, approximately three feet by five feet, which was normally inside the entrance to the store had been removed because it was wet. There was no indication to customers that the floor was wet or that the mat had been removed. The sole purpose of the mat was to keep dirt off the floor finish so it would not grind down the wax. Just inside the doorway was a built-in black rubber mat which was designed to electronically open the doors and which had rubber ridges on it that channel water. There was a mop and a bucket in the area of plaintiff’s fall to keep the floor mopped although store personnel were not aware of the particular puddle in which plaintiff slipped until after her fall.

“[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 knowl*80edge 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).

A proprietor may be held to have constructive knowledge of a hazardous substance on the floor if an employee of the proprietor was in the immediate area and could have seen the substance and taken measures to lessen the hazard. Caree v. Revco &c. Centers, 175 Ga. App. 487, 489 (333 SE2d 387). Although defendant’s employees were not aware of the particular puddle which caused plaintiff’s fall, a mop and bucket were in the immediate vicinity. Defendant’s store manager deposed that the mop and bucket were being used “to keep [the floor] mopped.” He averred further that the floor “was mopped all afternoon.” This evidence indicates that defendant’s employees were in the area of plaintiff’s fall continuously and that they were aware that the floor needed to be mopped on a regular basis. Given these facts, we think a question of fact exists as to whether defendant had constructive knowledge of the water puddle. See Piggly Wiggly Southern v. Conley, 139 Ga. App. 532, 533 (1) (229 SE2d 25).

We also think a question of fact exists as to whether plaintiff was without knowledge of the puddle of water. Although plaintiff knew it was raining when she entered defendant’s supermarket, she averred that she did not know that water had accumulated inside the supermarket entrance. Accordingly, this case is governed by Weight Watchers of Greater Atlanta v. Welborn, 165 Ga. App. 290, 291 (299 SE2d 760). In Weight Watchers of Greater Atlanta v. Welborn, supra, as was done in Telligman v. Monumental Properties, Inc., 161 Ga. App. 13 (288 SE2d 846), this court “rejected the argument that the equal knowledge of the parties as to weather conditions would bar the plaintiff from recovering, holding that the plaintiff would be barred only if she knew of the specific hazard which caused her fall.” Since plaintiff averred she did not know of the water puddle, the grant of summary judgment to defendant was improper.

Allen v. Big Star Food Market, 172 Ga. App. 879 (324 SE2d 820), is inapposite. In that case, plaintiff knew of the wet condition of the floor but walked across it anyway. Likewise, inapplicable is the case of Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480). There, unlike the case sub judice, defendant placed a “wet floor” sign immediately in front of the entrance.

Judgment reversed.

Deen, P. J., Banke, P. J., Pope and Ben-ham, JJ., concur. Birdsong, C. J., Carley, Sognier and Beasley, JJ., dissent.