Kelley v. Piggly Wiggly Southern, Inc.

Andrews, Chief Judge,

dissenting.

1. The trial court properly granted summary judgment in favor of Clean-Serve, Inc. and Donna Sendra d/b/a Universal Cleaning Service because Kelley failed to show any evidence of a connection between these defendants and the liquid in which she fell.

Clean-Serve and Sendra, as independent cleaning contractors, are not subject to the duty imposed in OCGA § 51-3-1 upon Piggly Wiggly as the owner or occupier of the premises. Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744-745 (2) (470 SE2d 270) (1996). Accordingly, to support her claim that Clean-Serve and Sendra negligently caused her injuries, Kelley was required to come forward with some evidence showing that they were responsible for the puddle of clear liquid in which she slipped and fell.

Kelley acknowledged in deposition testimony that she slipped and fell in a puddle of liquid on the floor which was clear and invisible from a standing position. She testified that she did not know where the unidentified liquid came from and that it could have been spilled by a customer. She contended in opposition to summary judgment that a floor cleaning machine used by Clean-Serve and Sendra located two or three aisles away from the site of the puddle was evidence that the puddle was negligently left on the floor by the operators of the machine. There was testimony that, although the machine emitted and then vacuumed up water as it was operated, the water used by the machine contained a “soapy like substance.” Kelley testified that after she fell, she saw “dirty water” under the machine that was visible from a distance because it was “muddy” and much darker in color than the “clear” and invisible liquid in which she fell.

It is sheer speculation that the puddle of clear liquid in which Kelley slipped and fell had some connection with muddy, dirty and plainly visible water under a cleaning machine several aisles away or with soapy water that might have been emitted by the machine at some earlier time and somehow not recovered. Moreover, the only testimony presented was that the machine vacuumed up the water *516as part of its normal operation.

In a negligence case, a plaintiff must show that a defendant’s negligence caused the injury. “On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Citations and punctuation omitted.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (2) (456 SE2d 93) (1995). It was not Clean-Serve’s and Sendra’s burden on summary judgment to refute the machine as the source of the water. To the contrary, the defendants, who do not have the burden of proof on this issue at trial, need only point to the absence of evidence in the record sufficient to support this claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). To hold otherwise would amount to making not only the proprietor, but his independent contractors as well, insurers of his customer’s safety. Wilkes v. Kroger Co., 221 Ga. App. 113 (470 SE2d 506) (1996). Because the evidence created only the mere possibility that Clean-Serve and Sendra caused Kelley’s injury, there was an absence of evidence sufficient to withstand a motion for a directed verdict at trial or to create a disputed issue of material fact on summary judgment. OCGA §§ 9-11-50 (a); 9-11-56 (c); Lau’s Corp., supra. Accordingly, the trial court did not err in granting summary judgment with respect to Clean-Serve and Sendra.

2. As to the claim against the proprietor based on the duty imposed under OCGA § 51-3-1, the trial court properly granted summary judgment in favor of Piggly Wiggly Southern, Inc. because there was an absence of evidence showing that Piggly Wiggly had actual or constructive knowledge of the puddle.

To recover, Kelley was required to show that Piggly Wiggly had actual or constructive,knowledge of the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), modified by Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Although Robinson modified the second prong of the Alterman Foods analysis dealing with proof of the plaintiff’s knowledge of the hazard, it left intact the first prong of Alterman Foods concerning the defendant’s knowledge. Since there is no evidence that Piggly Wiggly had actual knowledge of the liquid on the floor, this case hinges on whether Piggly Wiggly had constructive knowledge of the puddle.

*517Under Alterman Foods, the proprietor’s constructive knowledge may be established by evidence that an employee of the proprietor was in the immediate vicinity of the hazard and could easily have seen and removed it, or by evidence that the hazard had been on the floor for a period of time sufficient to have been discovered by a reasonable inspection of the premises. Id. at 622-623. As the majority states, there is no basis for concluding that an employee of Piggly Wiggly was near the puddle and could have easily seen and removed it. Accordingly, the issue in this case is whether there was evidence sufficient to show that Piggly Wiggly had constructive knowledge on the basis that the puddle had been on the floor prior to the slip and fall long enough that Piggly Wiggly would have discovered it by a reasonable inspection of the premises.

Kelley testified that she had no knowledge of how long the liquid had been on the floor. She saw no footprints or buggy tracks through the puddle, no drying of the edges, or any other indications as to how long the puddle had been on the floor. As set forth in Division 1, supra, there is no reasonable basis for concluding that the puddle was left on the floor for an extended length of time as a result of a prior floor cleaning operation.

Accordingly, Piggly Wiggly was entitled to summary judgment by “pointing] out the absence of any evidence in the record showing that the foreign substance had been on the premises for a period of time sufficient to have been discovered by a reasonable inspection of the premises.” Johnson v. Autozone, 219 Ga. App. 390, 394 (465 SE2d 463) (1995). “[Liability based on constructive knowledge requires proof of the length of time the dangerous condition was allowed to exist. Since the record affirmatively establishes that plaintiff cannot show that the spot was on the floor long enough for reasonable cleaning procedures to have eliminated it, [she] must suffer summary judgment in defendant’s favor.” (Citations and punctuation omitted.) Blake v. Kroger Co., 224 Ga. App. 140, 147 (480 SE2d 199) (1996) (Beasley, J., concurring specially); Banks v. Colonial Stores, 117 Ga. App. 581, 585 (161 SE2d 366) (1968).

Piggly Wiggly had no burden on summary judgment to pierce the pleadings by first showing that it complied with the duty imposed under OCGA § 51-3-1. To the contrary, under Lau’s Corp., Piggly Wiggly had no initial burden to produce evidence to negate Kelley’s constructive knowledge claim but could discharge its burden on summary judgment by showing there was no evidence in the record to support that claim. For Kelley to establish a triable issue, she had the burden of showing that the puddle was on the floor for a length of time sufficient for knowledge of it to be imputed to Piggly Wiggly *518before Piggly Wiggly had any obligation to show adherence to reasonable inspection procedures. Hartley v. Macon Bacon Tune, 227 Ga. App. 679, 685 (490 SE2d 403) (1997). In the absence of evidence showing how long the puddle had been on the floor, the trial court properly granted summary judgment in favor of Piggly Wiggly.

Decided December 19, 1997 Reconsideration denied February 11, 1998 Beauchamp & Associates, William Eckhardt, for appellant. Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, Albert M. Yates III, James R. Doyle II, Cannon, Meyer Von Bremen & Meier, Michael S. Meyer Von Bremen, Hodges, Erwin, Hedrick & Coleman, David W. Orlowski, for appellees.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.