SHARPTON v. GREAT A. P. TEA CO

The plaintiff in Case No. 41491 sued for damages for personal injuries, alleging the following facts: The plaintiff was a customer in the defendant's grocery store. In the check-out aisle where purchases made in the store are paid for, customers stand in line close together for checkout, payment, and delivery of articles purchased, one customer following the other within approximately twenty inches, from back to chest.

Immediately before the plaintiff approached the check-out counter and aisle to pay for purchases there was an attendant, presumably an employee of the defendant, on the outside part of the check-out counter putting cigarettes or other items in a rack. Said employee motioned to or told the plaintiff's husband, who was immediately ahead of her, to check out through the last aisle next to the office of the store. A green, slippery substance was on the floor at that time and the employee filling the rack was in a position to see it by casual observation and in the exercise of ordinary care. It was in full view of this employee and was not concealed. The employee placing items in a rack failed to observe the slippery green matter. The substance could not have been dropped, placed, or thrown after the plaintiff's entry into the aisle.

As the plaintiff approached the check-out counter to pay for the purchases the floor in front of her was obscured by reason of the closeness of customers in front of her, and the defendant knew or in the exercise of ordinary care should have known this fact.

The clerk at the check-out counter at the time was in a position to see the floor space in the immediate area of the check-out aisle and counter and to determine whether it was free from foreign objects and substances. When the plaintiff entered the check-out area she was preceded by other persons so closely that petitioner's direct view of the area was obscure and in the act of stepping forward her right foot landed upon a piece of vegetable leaf located in said check-out area approximately the size of a silver dollar, which caused her to fall and be injured. The petitioner did not see the substance. Allegations of the defendant's negligence causing the plaintiff's injury included failure to remove the foreign substance before permitting and requiring the plaintiff to use the area; failure to warn the plaintiff of the danger; and leaving the substance (a vegetable leaf or other slick substance) in the check-out area which it required the plaintiff to use for such a length of time that in the exercise of ordinary care it should have been seen and removed.

In Case No. 41492 the husband of the plaintiff in Case No. 41491 sued for damages for the loss of his wife's services and for medical expenses. The husband's petition alleged that the wife slipped, fell and was injured while checking out of the defendant's store because of the defendant's negligence "in permitting a slick and foreign substance to remain on the floor in an area which defendant required all customers, purchasers and invitees to use in order to reach a check-out counter"; and alleged further, referring to the plaintiff's wife, the facts stated in the second paragraph above.

The plaintiffs assign error on the judgments of the trial court sustaining the defendant's general demurrers to the petitions.

HALL, Judge.

As a general rule, when the defendant's liability is based on constructive knowledge of a dangerous condition, the petition must allege facts and circumstances sufficient to make it a question of fact whether the alleged dangerous condition had existed for a sufficient length of time so that knowledge of it would be imputed to the defendant. Home Fed. Savings c. Assn. v. Hulsey, 104 Ga. App. 123 ( 121 S.E.2d 311). 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. In the present case (No. 41491) the allegations showing that the defendant had an opportunity to discover the defect are that one of defendant's employees was in a position to see the defect (a green slippery substance) by casual observation at the time he directed the plaintiff's husband to use the aisle where it was; and that another employee of the defendant (or the same employee, as the defendant argues) was at the check-out counter of this aisle and could have seen the green, slippery substance. 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. S. H. Kress Co. v. Flanigan, 103 Ga. App. 301 ( 119 S.E.2d 32); Belk-Gallant Co. of LaGrange v. Cordell, 107 Ga. App. 785 ( 131 S.E.2d 575).

The petition in Case No. 41492 does not show that the alleged dangerous condition was not observable to the plaintiff's wife as well as to the defendant, and therefore does not state a cause of action. Stowe v. Belk-Gallant Co., 107 Ga. App. 80, 83 ( 129 S.E.2d 196).

The trial court erred in sustaining the general demurrers to the petition in Case No. 41491, but did not err in sustaining the demurrers in Case No. 41492.

Judgment reversed in Case No. 41491. Judgment affirmed in Case No. 41492. Bell, P. J., and Frankum, J., concur.