Rodriguez v. Piggly Wiggly Southern, Inc.

Beasley, Judge,

dissenting.

“[Liability for injuries resulting from an invitee’s slip and fall on *81a proprietor’s premises is determined by the relative ‘knowledge’ possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. ‘ “The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” ’ [Cit.]” Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (2) (288 SE2d 846) (1982).

In order for defendant to prevail on summary judgment, then, the evidence must show as a matter of law that defendant did not have superior knowledge to that of Mrs. Rodriguez of the condition or hazard which resulted in the slip and fall. The trial court specifically pointed out that defendant was not on notice of the puddle of water until Rodriguez’s fall and that there was no question of fact that the store’s knowledge of the presence of the accumulated rainwater was not superior to that of Rodriguez. Rodriguez urges that the trial court erred in making these findings and in granting the store summary judgment.

“It is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the door is likely to be wet; it is a matter of common knowledge that some water will normally be present where shoppers pass during rainy weather. [Cit.] It is not the duty of persons in control of such buildings to keep a large force of moppers to remove the rain as fast as it collects. [Cit.] The duty owed to such invitees is one of ordinary care, or to protect against an unreasonable risk of harm. [Cit.] The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate. [Cits.]” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (332 SE2d 304) (1985).

I conclude that “there is simply nothing in the evidence to show superior knowledge on the part of the defendant of a hazard which could give rise to a duty to remove it or warn customers, so that failure to do so could be found to constitute a failure to exercise the duty of ordinary care in keeping the premises safe, which befalls the one who is in control of the premises. OCGA § 51-3-1. [Cits.] In this state, the proprietor is not an insurer of its customers’ safety. [Cit.]” Cook v. Arrington, 183 Ga. App. 384, 386 (358 SE2d 869) (1987).

Appellant relies heavily on the fact that the store had removed the surface mat. But the undisputed evidence is that the purpose of this mat was solely to keep dirt from being ground into the wax surface and that the mat was not intended or useful for drying the soles *82of customers’ footwear, such as the “fliprflops” which plaintiff was wearing. Furthermore, the undisputed evidence is that the store personnel were periodically mopping the floor because of the rainy weather. That the small accumulation of rainwater occurred in the crowded store and went unnoticed by store personnel until after Rodriguez’s fall would not of itself raise an issue as to the store’s liability under OCGA § 51-3-1.

Decided November 5, 1987 Rehearing denied November 25, 1987 Thomas R. Herndon, for appellant. John T. Woodall, Leesa A. Bohler, Carmel W. Sanders, for appellee.

The trial court properly concluded that there was no dispute that the store had no notice, actual or constructive, of the specific water accumulation and had no superior knowledge to that of plaintiff in this regard or in regard to the presence of rainwater generally.

I am authorized to state that Chief Judge Birdsong, Judge Carley, and Judge Sognier join in this dissent.