Durham v. Tony Patel d/b/a BJ's BP

Harold Durham appeals from the trial court’s order granting summary judgment to Tony Patel d/b/a BJ’s BP in this slip and fall case. Because there are genuine issues of material fact as to whether the store had superior knowledge of the alleged water on the floor of its store, we must reverse the trial court’s grant of summary judgment. The evidence before the trial court at the time of its ruling consisted of conflicting affidavits submitted by the parties. Durham submitted an affidavit in which he stated that on “August 29, 2001, I went up to the BP store to get a Dr. Pepper while going towards the back of the store to the coolers I slipped on a wet spot on the floor where it looked as if they had been mopping.” His shorts were very wet after he landed on the floor. He claimed that the store was open at the time of his fall and that there were no warning signs in the store.

A store employee claimed in his affidavit that Durham entered the store 45 minutes after it closed. According to the employee, Durham ignored his statement that the store was closed, pushed past him, “and went to the beer cooler area.” The employee followed Durham and found him “sitting on the floor holding a 22 ounce bottle of Bud Lite in each hand.” The employee “did not see any water, oil, or other foreign substance on the floor where Durham was sitting” or on Durham’s clothing. According to the employee, Durham made no complaint about falling and “appeared to be highly intoxicated.”