ERIN DROSSMAN v. WAL-MART STORES EAST LP, (DELAWARE)

                           FIFTH DIVISION
                           MERCIER, C. J.,
                   MCFADDEN, P. J., and RICKMAN, P. J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules



                                                                    February 4, 2025




In the Court of Appeals of Georgia
 A24A1720. DROSSMAN v. WAL-MART STORES EAST, et al.

      MCFADDEN, Presiding Judge.

      Erin Drossman filed a complaint against Wal-Mart Stores East, LP and others,

alleging that she was injured when she slipped and fell on water on the floor of a Wal-

Mart store. She asserted claims for premises liability, negligence, nuisance, and

negligent training and supervision. The trial court granted summary judgment to Wal-

Mart and the other defendants on all claims. Drossman appeals, challenging only the

grant of summary judgment to Wal-Mart on her premises liability claim. Because she

has failed to point to any evidence creating a genuine issue of material fact as to Wal-

Mart’s superior knowledge of the alleged hazard, we affirm the trial court’s grant of

summary judgment.
      1. Summary judgment

      Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). “Our review of the trial

court’s summary judgment order is de novo and we construe the evidence most

favorably towards the nonmoving party, who is given the benefit of all reasonable

doubts and possible inferences.” All American Quality Foods v. Smith, 340 Ga. App.

393 (797 SE2d 259) (2017) (citation and punctuation omitted).

      So viewed, the evidence shows that Drossman was shopping in a Wal-Mart

store when she slipped and fell on water that was on the floor near the end of an aisle.

She did not see any water before falling, but afterwards her clothes were wet and she

felt a liquid with her hand that she believed was water. Another shopper and a store

employee saw water on the floor near Drossman after she fell, with the employee

stating that he “noticed a small amount of water on the floor.” Drossman deposed

that she did not know where the water came from, but speculated that it may have

come from a freezer at the end of the aisle.


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      2. Superior knowledge

      “In Georgia, proof of a fall, without more, does not give rise to liability on the

part of a proprietor. To support a premises liability claim, a plaintiff must show that

the proprietor had superior knowledge — either actual or constructive — of the

hazard that caused the plaintiff’s injury.” Hartman v. Clark, 341 Ga. App. 513 (801

SE2d 66) (citations and punctuation omitted). Indeed, “[t]he crux of a premises

liability case is the owner’s superior knowledge of the hazard[.]” Scott v. Forest Acres

Full Gospel Church, 352 Ga. App. 145, 148 (1) (834 SE2d 286) (2019) (citation,

punctuation, and emphasis omitted). “In assessing the relative knowledge of the

parties, the question is whether they were accurately informed about the specific hazard

or danger in question.” Sinyard v. Georgia Power Co., 363 Ga. App. 195, 205 (2) (a)

(871 SE2d 45) (2022) (emphasis supplied).

      Wal-Mart has pointed to the lack of evidence showing that it had either actual

or constructive knowledge of the specific water hazard on the floor where Drossman

fell. To avoid summary judgment, Drossman therefore “cannot rest on [her]

pleadings, but rather must point to specific evidence giving rise to a triable issue.”




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Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citation and

punctuation omitted).

      (a) Actual knowledge

      Drossman cites Union Camp Corp. v. Dukes, 217 Ga. App. 95 (456 SE2d 645)

(1995) for the proposition that actual knowledge may be established through evidence

of a pervasive hazard, and she then points to evidence that freezers at the Wal-Mart

store were known to leak and that spill pads used to absorb water had been placed in

areas of the store other than where she fell. But her reliance on Union Camp is

misplaced and the evidence she cites does not show that Wal-Mart had actual

knowledge of the specific water hazard that caused her fall. See J. H. Harvey Co. v.

Johnson, 211 Ga. App. 809, 810 (440 SE2d 548) (1994) (“although management had

knowledge of the periodic defrosting of the meat cooler, the record does not show that

any employee or manager of the supermarket had actual knowledge of the alleged

water leakage onto the floor prior to [plaintiff’s] fall”), overruled in part on other

grounds, Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997).

      Contrary to Drossman’s claim, Union Camp does not hold that actual

knowledge may be established merely by evidence of a pervasive hazard. In that case,


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which involved a slip-and-fall in a puddle of oil on the floor of a paper machine in

which the plaintiff was working, a witness testified that he saw oil on the floor the

morning of the incident, saw defendant’s employees in that area, and saw that “oil

dry” had already been applied to the floor. Union Camp, supra at 98. A photograph

also showed oil dry on the floor where the plaintiff fell. Id. Without specifying between

actual and constructive knowledge, this court held that such “evidence presented a

jury question on the issue of [the defendant’s] knowledge of the dangerous

condition.” Id.

      To the extent Union Camp can be read to concern actual knowledge, unlike the

evidence in that case, the evidence cited by Drossman, that freezers in the store were

generally known to leak and that spill pads had been placed elsewhere in the store,

does not create a triable issue as to Wal-Mart’s actual knowledge of the specific hazard

alleged in this case. See St. Joseph’s Hosp. of Atlanta v. Hall, 344 Ga. App. 1, 3 (1) (a)

(806 SE2d 669) (2017) (knowledge of generally prevailing hazardous conditions is not

sufficient to establish actual knowledge of the specific hazard which caused the slip

and fall). Drossman has cited no evidence that spill pads had ever been placed near the

freezer in question, that spill pads had been placed in the area where she fell on the


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date of the incident, or that Wal-Mart otherwise had actual knowledge of the water on

which she slipped. The evidence cited by Drossman therefore “does not show that

[Wal-Mart] had actual knowledge of the specific [water] hazard that caused [her]

fall.” Id. at 4 (1) (a). See also Suddarth v. Lounsbrough, 369 Ga. App. 158, 161 (1) (892

SE2d 582) (2023) (defendant’s general knowledge that leaves fall on his property and

his weekly cleaning of leaves did not equate to actual knowledge of the specific

accumulation of leaves that allegedly caused plaintiff’s fall).

      (b) Constructive knowledge

             A plaintiff may demonstrate a proprietor’s constructive knowledge
      of a hazard by showing: (a) evidence that the hazardous condition lasted
      so long that it would have been discovered and removed if the proprietor
      had exercised reasonable care in inspecting the premises, or (b) evidence
      that an employee of the defendant was in the immediate vicinity of the
      hazardous condition and could have easily seen and corrected the hazard.

All American Quality Foods, supra at 395 (1) (citation and punctuation omitted).

      With regard to the first method of demonstrating constructive knowledge, Wal-

Mart has cited evidence, including affidavits and video screen shots, showing that

during the three-and-a-half minutes before Drossman’s fall, two store employees

conducted separate inspections of the area. Both employees testified that there was

no liquid or other hazard on the floor, which was dry, clean, and free of debris.

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Drossman has cited no contradictory evidence establishing how long water was on the

floor. Instead, she speculates about whether customers opening the nearby freezer

doors some 37 to 55 minutes before her fall “resulted in the water [she] slipped on[.]”

But absent evidence showing that the water came from those doors, “summary

judgment cannot be avoided based on mere speculation or conjecture[.]” Head v. de

Souse, 353 Ga. App. 309, 313 (1) (836 SE2d 227) (2019) (citation and punctuation

omitted). See Hatchett v. McCain Property Care, 369 Ga. App. 71, 73 (2) (892 SE2d

174) (2023) (“circumstantial evidence cited by [plaintiff] permits mere speculation

and does not demonstrate a genuine issue of material fact”).

      “Regardless of the adequacy of any inspection program, when an owner shows

that an inspection occurred within a brief period of time prior to an invitee’s fall, the

inspection procedure was adequate as a matter of law and defeats an invitee’s

negligence action.” Mucyo v. Publix Super Markets, 301 Ga. App. 599, 601 (2) (688

SE2d 372) (2009). Given Wal-Mart’s showing that inspections were conducted within

three-and-a-half minutes of the incident, “the limited period of time that the [water]

was on the floor is insufficient as a matter of law to hold that [Wal-Mart] should have

discovered and removed the liquid prior to [Drossman’s] fall.” All American Quality


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Foods, supra at 395-396 (1) (a). See Pirkle v. QuikTrip Corp., 325 Ga. App. 597, 602 (2)

(b) (ii) (754 SE2d 387) (2014) (summary judgment granted where only eight minutes

transpired between the fall and inspection that showed no liquid on floor); Markham

v. Schuster’s Enterprises, 268 Ga. App. 313, 314 (601 SE2d 712) (2004) (plaintiff

slipped and fell only five to ten minutes after manager inspected the area). Drossman

has thus “failed to establish that [Wal-Mart] had constructive knowledge of the

hazard under the first method.” All American Quality Foods, supra at 396 (1) (a).

      As for the second method of showing constructive knowledge, there is evidence

that two store employees were stocking shelves from big pallets of bread

approximately 15 feet from where Drossman fell. “However, showing that an

employee was merely working in the immediate area of the alleged hazard is not

enough; the employee must have been in a position to have easily seen the hazard and

intervened to correct it before the accident occurred.” All American Quality Foods,

supra at 397 (2) (citation and punctuation omitted). Drossman has failed to present

any evidence that either employee, while busy stocking bread shelves, was in a position

to have easily seen water on the floor near the freezer at the end of the aisle. See

Mucyo, supra at 601 (1) (no evidence that cashier in vicinity of plaintiff’s fall could


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have easily seen and removed wet substance on the floor); Matthews v. The Varsity,

248 Ga. App. 512 (546 SE2d 878) (2001) (plaintiff failed to establish that defendant’s

employee who was 12 to 15 feet away could have easily seen and removed liquid on

stairs). Because Drossman has “failed to sustain her evidentiary burden of showing

that [Wal-Mart] had actual or constructive knowledge of the alleged [water] hazard

and that such knowledge exceeded hers, [Wal-Mart] was entitled to summary

judgment as a matter of law.” Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350,

352 (496 SE2d 471) (1998).

      Judgment affirmed. Mercier, C. J., and Rickman, P. J., concur.




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