In today’s blog post we are looking at a case that arises from an incident in a Statesboro, Georgia Walmart store where a man slipped and fell on an unknown foreign substance near the flower and produce displays. The store’s knowledge of the substance was key to the case.
On March 27, 2022, the plaintiffs went to the Walmart Neighborhood Market in Statesboro, Georgia. Near the front of the store were the produce and floral displays. The produce display had what Walmart calls a “wet wall” section, which contained perishable produce that needed to stay cool and was intermittently misted with water. Right next to that section was the floral display which had cut flowers sitting in water. Customers could take the flowers from the water and carry them away for purchase.
Around noon, the plaintiff was walking from the wet wall area near the small fruits towards the floral display. As he passed the floral display he slipped and fell. There was a foreign substance on the floor. It’s not known what that substance was or where it came from.
There was also surveillance footage from Walmart that showed that, about 26 minutes before the plaintiff fell, a Walmart employee inspected and mopped the area where he slipped.
The plaintiff and his wife both filed suit against Walmart, asserting claims for negligence and loss of consortium, respectively. The district court granted Walmart’s motion for summary judgment. The trial court found that Walmart’s inspection procedures were reasonable, and as a result, there was no genuine issue of material fact relating to the claims of negligence.
Did Walmart have Constructive Knowledge?
The plaintiffs raised two arguments on appeal. They argued that the district court erred in finding that Walmart lacked constructive knowledge of the hazard that caused the plaintiff’s fall because Walmart’s inspection procedure was reasonable as a matter of law. In addition, they argued that the district court erred in granting summary judgment on their claim that Walmart didn’t take reasonable safety precautions by having absorbent mats.
In a per curiam decision by Eleventh Circuit Judges Wilson, Brasher, and Anderson, the panel stated that the Georgia Supreme Court has developed a burden-shifting framework for the resolution of slip-and-fall premises liability cases. In addition to the traditional tort elements, plaintiffs must show:
- The store owner had actual or constructive knowledge of the hazard; and
- The plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the store owner.
However, the second burden isn’t “shouldered” until the store owner has established negligence on the part of the plaintiff, and that prong wasn’t before the Court at this stage in the case. This framework reflects the principle that “the true basis for an owner’s liability is his superior knowledge” of the hazard over the invitee’s knowledge.
In this case, the plaintiffs didn’t argue that Walmart had actual knowledge of the foreign substance on the floor, so they had to proceed under the constructive knowledge theory. Constructive knowledge may be shown by evidence that:
- A store employee was in the immediate area of the hazard and could have easily seen the substance; or
- The foreign substance remained long enough that ordinary diligence by the store employees should have discovered it.
But the plaintiffs didn’t claim there was a Walmart employee in the vicinity, so they used the second prong of this test. Under the second prong, Georgia courts may infer constructive knowledge if the plaintiff shows that the owner lacked reasonable inspection procedures or failed to follow them.
For a store owner to win summary judgment on their lack of constructive knowledge, they must first show that they had and followed reasonable inspection procedures. Only after making that showing does the burden shift to the plaintiff to show that the hazard had been present for a sufficient length of time such that reasonable diligence by the owner would have discovered it. If the plaintiff fails to produce this evidence, the defendant-owner is entitled to summary judgment on constructive knowledge.
“Brief Period” of Inspection
The Georgia Court of Appeals has also held that, under certain circumstances, if an inspection occurs within a “brief period” of time before the fall, then the inspection was reasonable. By showing that they actually conducted an inspection within that “brief period,” the owner establishes that their inspection procedures were reasonable “regardless of any inspection program.” The burden then shifts back to the plaintiff to create a genuine issue of fact and show that the hazard had been on the floor for an unreasonably long time.
The plaintiffs argued that in addition to timing, the court should consider other factors such as 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. However, the Eleventh Circuit explained that these factors are more apt in cases where “a proprietor has notice of the risk of a particular hazard” that’s recurring.
Here, the plaintiffs presented little evidence to show that Walmart was on the heightened notice. They introduced evidence about Walmart’s training and policies, but this same evidence was held to be insufficient in an earlier case. There, the plaintiffs tried to show constructive knowledge by presenting evidence that “The Wal-Mart Manual” required an inspection procedure called “zone defense.” The plaintiffs contended that constructive knowledge was established because this policy showed Walmart thought heightened safety precautions were necessary in that area of the store. However, the court in that case rejected this evidence as insufficient when juxtaposed with the undisputed evidence that an inspection had occurred in the “brief period” prior to the fall.
The panel in this case found the “brief period” cases a closer fit than the heightened notice cases. Therefore, because the uncontroverted video evidence showed that an inspection took place just 26 minutes before the plaintiff’s fall, the Court found that Walmart carried its burden, and its inspection procedures were reasonable as a matter of law.
The burden then shifted to the plaintiffs to show how long the hazard was on the floor and that reasonable diligence would have discovered it. However, the plaintiffs admitted that they didn’t know how long the hazard had been on the floor. As a result, they couldn’t satisfy their burden under this test.
The plaintiffs also argued that the district court erred in granting summary judgment on their reasonable precautions claim. They contended Walmart’s policy required the placement of absorbent mats at or near the place where the plaintiff fell, and that this forms an independent basis for recovery—separate from the inspections claim. Walmart disputed that mats were required, and argued that the plaintiffs have failed to show causation or, in the alternative, that they waived this argument.
The panel explained that Georgia law establishes that a store owner can’t be held liable for a hazard unless they had knowledge of it. Because the Court found that Walmart had no actual or constructive knowledge of the foreign substance that the plaintiff slipped on, the reasonableness of failing to place absorbent mats down was immaterial.
Here, an inspection occurred during the “brief period” before the plaintiff’s fall, and therefore Walmart’s reasonable inspection procedures were established as a matter of law. The panel held that once the inspection is reasonable under the “brief period” rule, outside evidence of policy and procedure on other occasions is irrelevant. The Eleventh Circuit affirmed the district court’s ruling. Borkowski v. Wal-Mart Stores E., LP, 2022 U.S. App. LEXIS 26370 (11th Cir, September 21, 2022).
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