Wallace v. Wal-Mart Stores, Inc. - 272 Ga. App. 343, 612 S.E.2d 528 (2005)

Rule:

A store's constructive knowledge may be demonstrated in two ways in a slip and fall case: (1) by showing that a store employee was present in the immediate area and could easily have seen the substance and removed it, or (2) by showing that the substance had been on the floor for such a time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.

Facts:

Mrs. Wallace and her husband visited a Wal-Mart store in Valdosta to purchase some frozen okra and butterbeans. While Mrs. Wallace was walking from the frozen foods section to the produce department, she slipped and fell, breaking her hip and injuring her back. Mrs. Wallace was not looking at the floor and did not notice anything on the floor that might have caused her to fall. She testified in her deposition that she did not notice any employees in the area before her fall. Mr. Wallace, who had been walking behind his wife, was the first to arrive on the scene, followed by Heather Rountree, a produce department employee, and then Johnny Stephens, co-manager of the store. According to Stephens's deposition testimony, Mr. Wallace stated that his wife “stepped on a grape.” Stephens recalled seeing a grape in the area. Stephens filled out an incident report and photographed a mashed grape. According to Stephens, no one saw Mrs. Wallace fall. Rountree and Daren Fleming, another produce department employee, told Stephens that they had “been through the area” 15 to 20 minutes before the fall and did not notice a grape on the floor. The trial court entered summary judgment in favor of Wal-Mart.

Issue:

Was Wal-Mart’s actual or constructive knowledge sufficiently proven, thus, making the grant of summary judgment erroneous?

Answer:

No

Conclusion:

The appellate court held that this argument failed for several reasons, including the fact that one of the employee affidavits, though referenced in the motion for summary judgment, was not included in the record. The testimony of Mr. Wallace that an unidentified employee tried to cover the grape with her foot after the store's co-manager arrived on the scene was not enough to raise a genuine issue of material fact, as the store did not dispute that Mrs. Wallace slipped on a grape. The unrefuted evidence showed that two employees had been through the area 15 to 20 minutes before the fall and did not notice a grape on the floor. Since Mrs. Wallace failed to establish either actual or constructive knowledge, the trial court did not err in granting summary judgment to the store.