Axom v. Wendy's International, Inc.

Andrews, Judge,

dissenting.

There is no evidence that either Wendy’s or Axom had actual knowledge of the puddle of water on the floor. Assuming the presence of the Wendy’s employee near the puddle of water created a question of fact as to whether Wendy’s had constructive knowledge of the hazard, the dispositive issue is whether Axom also had constructive knowledge of the puddle of water.

Even if Wendy’s had constructive knowledge, the defendant was still entitled to summary judgment in its favor if Axom should have discovered the puddle and avoided it, unless Wendy’s prevented her from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). In other words, Axom is deemed to have constructive knowledge of the hazard if she should have discovered and *626avoided it by the exercise of ordinary care but failed to do so.

In determining whether Axom should have discovered and avoided the puddle of water, the rule as set forth in Alterman Foods, supra, requires that she must “exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the [store’s] negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” (Citations and punctuation omitted.) Alterman Foods, supra at 623. In applying this rule, we have held on numerous occasions that “[s]ummary judgment is appropriate in situations where the hazardous condition was visible to the plaintiff, had the plaintiff looked.” J. H. Harvey Co. v. Kinchen, 213 Ga. App. 868, 869 (446 SE2d 218) (1994); Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992); Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994); Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (443 SE2d 871) (1994); Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994). Here, Axom admitted in her deposition that the puddle of water was not difficult to see and that if she had looked down she could have seen it.

In reversing the trial court’s award of summary judgment in favor of Wendy’s, the majority concludes there was evidence showing that Axom did not see the puddle of water “because it was transparent, because she was maneuvering through a busy dining area with her hands full of food, drink and a purse and because her attention was focused on making it to the exit and back to her car where her child had been waiting for 30 minutes.” There is no support in the record for the conclusion that Axom did not or could not see the puddle because it was transparent. By her own admission, she did not see it because she did not look down at the floor. Axom did not claim she was prevented from discovering the puddle by any distraction created by Wendy’s. The fact that she was walking with her food purchases back to her car is neither evidence of a distraction created by Wendy’s nor evidence that she was exercising reasonable care for her own safety.

Because Axom admitted she could have seen the puddle had she looked, the evidence demands a finding that Axom’s failure to exercise ordinary care for her own safety was the proximate cause of her injury. The trial court correctly granted summary judgment in favor of Wendy’s.

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