COLONIAL STORES, INC. v. TURNER

The defendant in this negligence action appeals from the judgment denying its motion for summary judgment. The petition alleged that the defendant was negligent in permitting a broken jar of applesauce to remain on the floor in its store for a sufficient time that the applesauce became spread over the entire width of the aisle in a thin, slick, transparent layer, of a color that blended with the flooring, not visible to the plaintiff. It alleged that the applesauce was allowed to remain on the floor for 30 minutes before the plaintiff fell, for one hour and for one and one-half hours. The defendant's answer denied these allegations.

In support of the motion for summary judgment the defendant presented the plaintiff's deposition which contained the following testimony: On a Saturday at about 2:30 p. m. the plaintiff was walking down the left side of the aisle and fell as she reached to the left to pick up some pancake syrup from the shelf. She then went to the check-out stand and told the assistant manager that there was applesauce on the floor and she had fallen. The aisle was 4 or 5 feet wide and when she fell she noticed a broken jar of applesauce on the right side of the aisle with applesauce running from it. The applesauce had been smeared the whole width of the aisle and was very thin where the plaintiff fell on the left side of the aisle. It was almost the color of the floor and was not visible to her before she fell. It had been run over and you could see marks all through it, and it looked as if buggies had run through it for a long time. She did not know how long it had been on the floor and, as far as she knew, the first time anyone in the store knew about the applesauce jar being broken was when she told the assistant manager, and she did not think he knew it was there or he would have cleaned it up. The affidavits of the assistant manager and a porter at the store stated that the first knowledge that they had of the spilled applesauce was when the plaintiff told the assistant manager and he directed the porter to clean it up, and they had no knowledge that any of the defendant's employees had such knowledge before that time. The assistant manager had directed the porter to sweep and mop the floors before the store opened at 8:30 a. m. on Saturdays and the porter did so on this Saturday. The assistant manager made periodic inspections of the floor during store hours on Saturdays and did not find the applesauce on any of his periodic inspections on that Saturday before the plaintiff's notice to him. The porter's routine duties included inspecting the entire floor on Saturdays at 30-minute intervals and cleaning up any foreign substance discovered, and he did inspect the floor at 30-minute intervals for foreign matter on this Saturday, and there was no broken applesauce jar or spilled applesauce on the floor of the aisle where the plaintiff fell during any of the 30-minute inspecting tours made by the porter on that Saturday.

HALL, Judge.

Is there a genuine issue on the material fact as to whether the alleged dangerous condition had existed for a sufficient length of time so that knowledge of it would be imputed to the defendant? "The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case (nature of the business, size of the store, the number of customers, the nature of the dangerous condition, and its location). 65 CJS 547, 548, § 51." Sharpton v. Great A. P. Tea Co., 112 Ga. App. 283, 285 ( 145 S.E.2d 101).

The motion for summary judgment was filed by the defendant. "The burden is upon the moving party, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1 ( 126 S.E.2d 442)." Internat. Brotherhood v. Newman, 116 Ga. App. 590, 592 ( 158 S.E.2d 298). The movant "has this burden even as to issues upon which the opposing party would have the trial burden. And the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence." 6 Moore's Federal Practice, (2d Ed.) 2853, § 56.23. "The trial court's function in ruling on a motion for summary judgment is analogous to the function he performs when ruling on a motion for directed verdict." McCarty v. National Life c. Ins. Co., 107 Ga. App. 178 (1) ( 129 S.E.2d 408). "As to certain issues the motion for summary judgment does, however, operate differently than the motion for directed verdict, since the party moving for summary judgment has the burden of establishing the lack of any triable issue of material fact, even as to issues upon which the opposing party would have the burden of proof at the trial." 6 Moore's Federal Practice (2d Ed.), 2855, § 56.23.

The evidence does not demand a finding that the applesauce had remained on the floor for only a few minutes. On the contrary, a jury could find that it had remained there for as long as thirty minutes. As argued by the defendant, the law does not require a proprietor to patrol the floor constantly when there are no conditions making the premises unusually dangerous. Angel v. Varsity, Inc., 113 Ga. App. 507, 508 ( 148 S.E.2d 451); Stanton v. Grubb, 114 Ga. App. 350 ( 151 S.E.2d 237). Whether or not an inspection at 30-minute intervals amounted to the exercise of ordinary care by the defendant depends upon the totality of the circumstances, evidence of which is lacking in the present state of the record.

The evidence did not demand a finding that the plaintiff's fall was caused by her failure to exercise ordinary care for her own safety. Questions as to negligence of the plaintiff that would prohibit or reduce the amount of recovery are matters within the province of the jury. Chotas v. J. P. Allen Co., 113 Ga. App. 731 ( 149 S.E.2d 527); Phillips v. Blanton, 116 Ga. App. 743 ( 159 S.E.2d 187).

The trial court did not err in denying the defendant's motion for summary judgment.

Judgment affirmed. Bell, P. J., and Quillian, J., concur.