Summary
In Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 S.E.2d 366), we stated for the first time that there are "two different classes of cases which may be based on constructive knowledge of a defect."
Summary of this case from Mitchell v. Food Giant, Inc.Opinion
43478.
SUBMITTED MARCH 5, 1968.
DECIDED APRIL 2, 1968.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Jack K. Bohler, for appellants.
Kilpatrick, Cody, Rogers, McClatchey Regenstein, Barry Phillips, Jeff Davis, Jr., for appellee.
Under the allegations in the petition it cannot be said as a matter of law that the defendant's employee was not negligent in failing to observe, or if he observed, in failing to warn the plaintiff or correct the alleged dangerous condition which caused her to fall.
SUBMITTED MARCH 5, 1968 — DECIDED APRIL 2, 1968.
The plaintiffs Mary S. Banks and her husband filed separate suits against the defendant seeking to recover damages resulting from personal injuries sustained by the plaintiff, Mary S. Banks, when she stepped on several string beans lying on the floor of one of defendant's grocery stores and fell.
General demurrers to the petitions were sustained. The plaintiffs appealed. The cases were consolidated for appeal purposes and will be so treated in this opinion.
The petition alleged in substance: that plaintiff, Mary S. Banks, was a shopper and invitee of defendant and was in one of defendant's stores walking along an aisle nearest the frozen food counter looking for a package of frozen broccoli; that while she was walking and looking for the broccoli she had her eyes focused on the various frozen vegetables in the counter and that as she turned the corner at the frozen food counter, she stepped on several string beans which were lying on the floor and slipped and fell to the floor causing her injuries; that she was in the exercise of due care for her own safety but did not keep her eyes toward the floor at all times, but was walking along and looking at the merchandise displayed in the frozen food counter in order to make her selection and that the frozen food counter blocked her line of vision and concealed the presence of the string beans. The petition further alleged: "Plaintiff shows that the defendant could have, by the exercise of ordinary care, known of the presence of these string beans on its floor because within eight to ten feet of said string beans was one of its agents and employees, who was working in the vicinity of the string beans stacking soft drinks and said string beans were within easy sight of the said employee. That the name of this agent and employee is not known to plaintiff but is well known to defendant.
"That plaintiff does not know the length of time that said string beans had been on the floor in the aforesaid location but alleges that they had been on the floor in excess of five minutes, as the said employee had been in the above mentioned location in the vicinity of said string beans for approximately five minutes before plaintiff fell and the aforesaid string beans were on the floor in said location when the said agent and employee arrived in the vicinity of said string beans to stack the soft drinks.
"That said agent and employee knew or should have known by the exercise of ordinary care, that the presence of said string beans on the floor, in a spot where a customer would be likely to walk and to step on them had created a dangerous condition; but that notwithstanding this knowledge on the part of the said agent and employee nothing was done by said agent and employee to remove the said string beans and to rectify the dangerous condition but to the contrary the said dangerous condition was allowed to remain and the said beans were allowed to remain on the floor by said employee for a period of at least five minutes after he had knowledge of the presence of said string beans and of the dangerous condition created thereby."
1. The defendant, appellee here, contends that the allegations of the petition were insufficient to present a question of fact for the jury whether the alleged dangerous condition had existed for a sufficient length of time to impute knowledge to the defendant. The defendant cites Cook v. Kroger Baking c. Co., 65 Ga. App. 141 ( 15 S.E.2d 531) and other cases as authority for its position. The plaintiffs contend that the petition set forth a cause of action because there were allegations that the defendant's employee, because of his location in the immediate area where the alleged dangerous condition existed, was negligent in either not observing the hazard or, if it were observed, in not removing the same. In support of this contention the appellants cite Sharpton v. Great A. P. Tea Co., 112 Ga. App. 283 ( 145 S.E.2d 101).
The facts alleged in the case sub judice and the Sharpton case are very similar. In the present case it was alleged that the defendant's employee was stacking soft drinks within eight to ten feet of the area where the string beans had fallen on the floor and that the string beans were within his "easy sight." In the Sharpton case it was alleged that an employee was "putting cigarettes or other items in a rack" and was "in a position to see" the substance on the floor "by casual observation." It should be noted that in the Sharpton case it was alleged that there was also another employee who could have seen the substances on the floor and that the employee directed the plaintiff to use the aisle where the substance was located. While these additional facts made it a stronger case, they were not essential for that petition to set forth a cause of action.
In the Sharpton case 112 Ga. App. 283, supra, it was held: "It cannot be said as a matter of law that the employee or employees of the defendant exercised ordinary care in either not observing the green, slippery substance or, if they observed it, in not rectifying the danger or warning the plaintiff." P. 286. The premise upon which the Sharpton case held the petition set forth a cause of action was the failure of the employees either to observe or, if observed, to remove the substance on the floor, and not upon the plaintiff being directed to use that particular aisle.
In S.H. Kress Co. v. Flanigan, 103 Ga. App. 301 ( 119 S.E.2d 32), it was held that the petition set forth a cause of action where the plaintiff slipped on a foreign substance which was on a flight of stairs in the store. In that case it was alleged that one of the defendant's employees "for a time" prior to the fall had been on duty in the proximity of the stairway upon which the plaintiff fell and was within "easy sight" of the stairway. In stating that the petition set forth a cause of action the court said: "Under these allegations it cannot be said as a matter of law that the defendant did not have an opportunity to discover and either warn the plaintiff, or correct the alleged defect." p. 304.
As is stated in Belk-Gallant Co. v. Cordell, 107 Ga. App. 785, 786 ( 131 S.E.2d 575) and Ward v. Veterans of Foreign Wars, 109 Ga. App. 563, 564 ( 136 S.E.2d 481) there are two different classes of cases which may be based on constructive knowledge of a defect. The first is that type of case where the liability of the defendant is based on a duty to exercise reasonable care in inspecting and keeping the premises in a safe condition. Home Federal S. L. Assn. v. Hulsey, 104 Ga. App. 121 ( 123 S.E.2d 311). To state a cause of action in that class of cases it is necessary that the petition state a period of time the dangerous condition has been allowed to exist. Without such an averment it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard. In such cases, absent unusual circumstances, in the opinion of the writer five minutes could not be a sufficient time within which to charge the defendant with constructive knowledge of the condition.
However, in the second type of case, that is, where it is alleged that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance, it is not necessary to allege any specific length of time that the condition had existed. S.H. Kress Co. v. Flanigan, 103 Ga. App. 301, supra; Sharpton v. Great A. P. Tea Co., 112 Ga. App. 283, supra.
The distinction between these two classes of cases lies in the fact that when it is alleged that an employee is in the immediate area of the dangerous condition and has the means and opportunity to discover the same, it then becomes a question for the jury whether the defendant in the exercise of due care should have discovered and either warned the plaintiff, or corrected the alleged hazard.
Under the allegations of the petition in the present case it cannot be said as a matter of law that the defendant's employee was not negligent in failing to observe the defect or, if observed, in failing either to warn the plaintiff or to correct the alleged dangerous condition.
2. The remaining enumeration of error is without merit.
Judgment reversed. Bell, P.J., and Hall, J., concur.