Blake v. Kroger Co.

Beasley, Chief Judge,

concurring specially.

I agree to the extent that, under the plaintiff’s theory in this case *146and the particular evidence, defendant is entitled to summary judgment.

Plaintiff alleged in his complaint that he fell “due to an invisible chemical solution” that defendant negligently allowed to exist on the floor, and that the negligence was that the area “should have been cleaned and inspected on a regular basis.” (Emphasis supplied.) Plaintiff did not allege that defendant had actual knowledge of the liquid, and there is no evidence that it did. The affidavit of defendant’s co-manager, on the other hand, states that “[biased on [his] investigation, [he] discovered that there was no Kroger employee on the aisle at the time the plaintiff allegedly fell,” and no Kroger employee was aware of the liquid before Blake reported his fall. Taking this together with the allegations, the theory was constructive knowledge at best.

The undisputed evidence showed, however, that the spot of liquid was clear and was so small that unless a person was on hands and knees it would not be seen. A jury could not be permitted to find a proprietor, here a grocery store, negligent for failing to conduct such an inspection of its floor to discover such a spot.

Thus the plaintiff’s case does not rest on the theory of constructive knowledge as usually understood because, even if the proprietor had inspected or patrolled minutes béfore plaintiff fell, it would not have discovered the liquid. It is fundamental that “[w]hile the owner or occupier of land is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, [OCGA § 51-3-1], ‘(b)efore an owner can be held liable for the slippery conditions of his floors, produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care.’

[Cit.]” Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980).

Plaintiff’s case rests, instead, on the theory that adequate cleaning procedures would have removed the liquid even if it was not seen by the person applying the cleaning implement (broom, mop, mechanical device). As pointed out in the dissent, proper cleaning procedures will remove “small spills that might otherwise be difficult to detect.” That is certainly true in a typical grocery store, where spilled liquid is not an uncommon occurrence, and it might not be seen because of its size, the bright lighting which glares, and its blending in with the color of the floor.

Alterman Foods and the plethora of cases which follow it are limited to the concept that negligence must be founded on some species of knowledge. We have often said that a defendant can show a lack of knowledge by compliance with reasonable inspection “and/or cleaning procedures.” See, e.g., Morris v. Ryan’s Family Steak House, 206 *147Ga. App. 369 (425 SE2d 362) (1992); Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (408 SE2d 443) (1991); Baggs v. Chatham County Hosp. Auth., 187 Ga. App. 834, 836 (3) (371 SE2d 653) (1988); Shiver v. Singletary, 186 Ga. App. 746, 747 (2) (368 SE2d 523) (1988).

Where reasonable inspection would not yield knowledge, as here, reasonable cleaning procedures could correct the slippery condition nevertheless. A proprietor’s duty to exercise ordinary care to keep the premises safe includes the duty “ ‘to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.’ . . . [Cit.]” Johnson v. Autozone, 219 Ga. App. 390, 392 (465 SE2d 463) (1995). Regular cleaning of the floors would be such a precaution and, if adequate, would remove “invisible” spills.

Assuming that this, too, constitutes a species of constructive knowledge, defendant has not established its lack of negligence by showing that it had conducted reasonable cleaning procedures that day. The only evidence in this regard is the co-manager’s affidavit, which states that on the day of the incident, “Kroger had in place a policy which set forth that the floors were to be swept and inspected on a regular basis,” that “[e]mployees were instructed to look for and clean up any foreign substance they observed,” and “[i]f a substance was reported on the floor anywhere in the store, it was immediately cleaned up by an employee.” This is insufficient. Food Giant v. Cooke, 186 Ga. App. 253, 255 (1) (366 SE2d 781) (1988).

Nevertheless, liability based on constructive knowledge “requires proof of the length of time the dangerous condition was allowed to exist.” (Citation and punctuation omitted.) Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 337 (449 SE2d 613) (1994). 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, he must suffer summary judgment in defendant’s favor. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

I am authorized to state that Judge Johnson, Judge Smith, and Judge Ruffin join in this special concurrence.