Kroger Co. v. Schoenhoff

McMillian, Judge. Melanie and Steve Schoenhoff (collectively referred to as “plaintiffs”) filed personal injury and loss of consortium claims against the Kroger Company (“Kroger”) after Melanie slipped and fell while shopping at a Kroger Store (“the Store”) in Fayetteville, Georgia. The jury found in favor of plaintiffs and awarded Melanie $2,640,000 in damages on her personal injury claim and awarded her husband $150,000 on his loss of consortium claim. Kroger appeals, and in its sole enumeration of error, contends that it was entitled to a directed verdict because plaintiffs failed to show that Kroger had actual or constructive knowledge of the substance on the floor in which Melanie slipped and fell. As more fully set forth below, we now affirm. We decide this case under the overarching principle that [t]he granting of a directed verdict is a grave matter as, in directing a verdict, the trial court takes the case away from the jury and substitutes its own judgment for the combined judgment of the jury. Thus, in reviewing a trial court’s denial of a motion for directed verdict, we will affirm the jury’s verdict as long as there [is] some evidence to support it. In so doing, we construe the evidence with every inference and presumption in favor of upholding the verdict. (Citations and punctuation omitted.) Kroger Co. v. Strickland, 248 Ga. App. 613, 613-614 (1) (548 SE2d 375) (2001). Concerning premises liability “slip and fall cases,” our Supreme Court has explained: Premises liability lies at the intersection of tort law and property law. To recover on a theory of premises liability, a plaintiff must show injury caused by a hazard on an owner or occupier of land’s premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public. When a premises liability cause of action is based on a “trip and fall” or “slip and fall” claim — and the lion’s share of premises liability cases are — we have refined this general test down to two — 620 — specific elements. The plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.1 (Citations omitted.) American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009). With this underpinning in mind, we turn to the relevant facts, which are largely undisputed. At approximately 6:00 p.m. on June 7, 2008, Melanie, her husband and their young daughter entered the Store, passing first through the produce area. They proceeded to shop throughout the Store for about 35 to 45 minutes, and then Steve and their daughter headed to the checkout area while Melanie went back to the produce section to get a bag of lettuce. Melanie picked up the bag of lettuce and started walking toward the checkout area. However, while walking through the floral area, Melanie slipped and fell in a “clear liquid,” i.e., water, in front of the floral display case “where the floral section meets up with the self-checkout.” Melanie testified that she was watching where she was walking, but that she did not see anything on the floor before she fell; however, she testified that she did see a discrete puddle of liquid after she fell. Further, there was no evidence that Kroger had actual knowledge of the substance on the floor before Melanie fell. Thus, under the undisputed evidence presented at trial, plaintiffs’ right to recover depended on showing that the Store had constructive knowledge of the water on the floor in the area where Melanie slipped and fell. Constructive knowledge may be shown by demonstrating that (1) an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition prior to the fall, or (2) the hazardous condition had existed for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises. — 621 — Benefield, v. Tominich, 308 Ga. App. 605, 608 (1) (708 SE2d 563) (2011).2 See also The Augusta Country Club, Inc. v. Blake, 280 Ga. App. 650, 653 (1) (a) (634 SE2d 812) (2006); KMart Corp. v. Jackson, 239 Ga. App. 176, 178 (521 SE2d 93) (1999); Kroger Co. v. Brooks, 231 Ga. App. 650, 654 (1) (a) (500 SE2d 391) (1998). Moreover, [t]he length of time the substance must remain on the floor before the owner should have discovered it and what constitutes a reasonable inspection procedure vary with each case, depending on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store’s location. Davis v. Bruno’s Supermarkets, 263 Ga. App. 147, 150 (2) (587 SE2d 279) (2003). Augusta Country Club, 280 Ga. App. at 653 (1). Thus, under the second method of showing constructive knowledge, plaintiffs must produce evidence from which the jury may infer that a reasonable inspection procedure was not in place or was not followed and the length of time the substance had been on the floor. With respect to the inspection procedures on the day in question, Kroger concedes that “[i]t is undisputed . . . that Kroger was unable to prove that it conducted any sweeps or inspections of the area where Melanie Schoenhoff fell on the date in question.” Moreover, based on our review of the record, the evidence demonstrates that pursuant to Kroger’s safety policy in effect on the date of the accident, employees were required to conduct an inspection of a designated area of the Store on at least an hourly basis. Thus, pretermitting whether Kroger’s inspection procedure was reasonable, plaintiffs were able to produce evidence from which a jury could infer that Kroger failed to adhere to any inspection procedure on the day Melanie was injured.3 Despite this failure, Kroger argues that plaintiffs’ attempt to show it had constructive knowledge of the substance on the floor where Melanie fell must nevertheless fail because plaintiffs presented no evidence to show affirmatively how long the water had been — 622 — on the floor, thereby failing to prove that the water had been on the floor for a sufficient amount of time that a reasonable inspection, even if one had been carried out, would have revealed it. But where the evidence raises the inference that the foreign substance was discoverable pursuant to a reasonable inspection, a jury issue arises as to whether the defendant had constructive knowledge of what reasonable inspection would have revealed and a directed verdict is not appropriate. Brooks, 231 Ga. App. at 655 (1) (b). Thus, as we have explained on numerous occasions, “[t]he existence of constructive knowledge is a matter for the jury when there is evidence from which it may be inferred.” (Citation and punctuation omitted.) Jackson, 239 Ga. App. at 178. Accordingly, in reviewing the denial of Kroger’s motions for directed verdict, we must determine whether, construing the evidence in favor of the verdict, there was any evidence from which the jury might make this inference. We answer that question in the affirmative. A former Kroger employee testified that while she worked there, she had on other occasions observed water on the floor in the floral area. Further, there was evidence that it was anticipated that water would drip on the floor in that area as shoppers were taking the flowers out of vases. Several witnesses, including Kroger employees, testified that for this reason, nonskid floor mats were often used in floral areas, but it is undisputed that no evidence was presented to show that such mats were on the floor in the Store’s floral area on the day Melanie fell, although the evidence showed there may have been mats placed there on other days. Further, the fall occurred on a Saturday, which was one of the busiest, if not the busiest, time of the week in terms of customer volume. And not only did the fall occur on a busy weekend day, it occurred at approximately 6:45 in the evening, after an entire shopping day had passed during which Kroger could not show any employee had inspected or cleaned the area. Although this evidence was far from overwhelming, we find that it provided a sufficient basis from which the jury could infer that the spill had been on the floor for a sufficient length of time such that the Store employees would have discovered it and cleaned it up had they been adhering to reasonable inspection procedures, and therefore Kroger had constructive knowledge of the hazard. [W]e must remember that it is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives — 623 — expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Jackson, 239 Ga. App. at 178. Accordingly, and considering the gravity of a trial court’s substituting its own judgment for that of the jury, we find no error in the denial of Kroger’s motions for directed verdict. Id. at 176. In so finding, we recognize the criticisms of the summary judgment standard for slip-and-fall cases established in Straughter v. J.H. Harvey Co., 232 Ga. App. 29 (500 SE2d 353) (1998), which principles have also been applied to motions for directed verdict.4 See Williams v. GK Mahavir, Inc., 314 Ga. App. 758, 763 (726 SE2d 71) (2012) (Andrews, J., concurring dubitante) (questioning reasoning of Straughter); Benefield, 308 Ga. App. at 612 (Blackwell, J., concurring dubitante) (same). In Straughter, this Court, sitting en banc, held that “a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” 232 Ga. App. at 30 (1). But we need not reconsider Straughter here because plaintiffs presented evidence from which the jury could infer Kroger’s constructive knowledge of the hazard: water dripping on the floor in the floral department was a recurrent problem, Kroger had on other occasions ameliorated the problem by placing mats on the floor to catch the water, and on the day Melanie fell, Kroger neither placed mats on the floor nor did it inspect for anticipated spills in the floral area at any point during the entire shopping day. In light of the foregoing, we need not reach the issue of whether sufficient evidence existed to create a jury issue under the other method of proving constructive knowledge. Judgment affirmed. Phipps, C. J., Doyle, P. J., Dillard, McFadden and Boggs, JJ., concur. Andrews, P. J., dissents. Footnotes [1] These principles devolve from OCGA § 51-3-1, which provides: Where an owner or occupier of land, hy express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. [2] Although Benefield involves a motion for summary judgment, our Court has held that in slip-and-fall cases, those principles also apply on motions for directed verdict. See Kroger Co. v. Brooks, 231 Ga. App. 650, 651 (500 SE2d 391) (1998) (“Both OCGA § 9-11-50 and § 9-11-56 which deal with motions for summary judgment, are similar and are governed by similar criteria, so that opinions as to one have application to the other.”). We further note that it does not appear from our record that Kroger filed a motion for summary judgment. [3] As stated above, “[ejvidence establishing an adherence to customary inspection and cleaning procedures on the specific day in question is required, [and] proof of the mere existence of such customary procedures is insufficient.” (Citation and punctuation omitted.) Sanderson Farms, Inc. v. Atkins, 310 Ga. App. 423, 427 (713 SE2d 483) (2011). [4] See Brooks, 231 Ga. App. at 651.