Artlip v. Queler

470 S.E.2d 260, 220 Ga. App. 775, 96 Fulton County D. Rep. 1452, 1996 Ga. App. LEXIS 316

• Court: Court of Appeals of Georgia
• Decided: March 15, 1996
• Docket: A95A2796
• Status: Published

Opinions

Blackburn, Judge.

Plaintiff Artlip appeals the trial court’s grant of summary judgment to defendants (landlord) in her action for injuries sustained by her in the pool area of the apartment complex owned by the landlord where she resided. Plaintiff was standing near the rail on the lower deck which surrounded the swimming pool area of the apartment complex holding a glass of wine which she had been drinking when a small bee approached her from the adjacent lake. Plaintiff was injured when, while trying to escape the bee, she took approximately three steps backward and her leg slipped into a three- to four-inch space between a tree and the deck through which it grew and the presence of which plaintiff was aware prior to the fall.

The sole basis of negligence stated in plaintiff’s complaint for the liability of landlord was that the deck was improperly maintained, stating at paragraph 10 of her complaint: “The hole in the deck was the result of improper maintenance of the deck area.” The record is devoid of evidence that the deck had been improperly maintained.

To the contrary, the deposition of the landlord’s maintenance supervisor was that the deck was in good condition and none of the boards around the tree were cracked or broken. The tree was approximately 15 to 20 years old, 150 feet in height, and was approximately 16 to 18 inches thick. The small space between the tree and the surrounding deck is necessary to allow for some movement of the tree when the wind blows. The pool and decking has been inspected on many occasions by the Gwinnett County inspector, without any deficiency being noted.

Prior to her injury plaintiff was very familiar with the pool area and the existence of the tree and the hole through which it grew. Plaintiff had seen trees growing through decks at other apartments and knew this was not an unusual feature. In her complaint, plaintiff identified the involved insect as an “insect,” and in her deposition, she stated she was pretty sure it was a bee, not a large bee, but a small bee. The deck and pool area is adjacent to a lake, and plaintiff often saw bees flying around this area during the summer.

Plaintiff was aware of the existence of the tree and the opening around it which was behind her as she looked out over the lake at the time of the bee’s approach. She swatted at the bee and took approximately three steps backwards when she fell, her foot going into the three- to four-inch area between the tall tree and the deck. Prior to her injury plaintiff was aware that there was no fence around the tree or the gaps surrounding it.

Plaintiff attempts to create a question of fact as to her knowledge of the existence of a space between the deck and the tree by stating in her affidavit at paragraph 3, “[although I had been on this deck area approximately eight (8) times before, I never thought of nor noticed that such a space existed between the deck and the tree.” She further states in her affidavit at paragraph 5, that “[t]he space between the deck and the tree was approximately 3 1/2 to 4 inches in width, and was wider in one portion of the circumference than the other part of the entire perimeter of the circle that surrounded the tree.”

Her deposition testimony on cross-examination, after agreeing that her previous responses had not been fact, was “Q. There ain’t but one way that that tree could get up through that deck, and that would be for there to be a hole in that deck? A. I agree. Q. And you knew that, didn’t you? A. I knew the tree was there. Q. And you knew there was a hole in the deck? Q. You can answer my question. You knew there was a hole there, didn’t you? A. Yes.” Plaintiff further deposed that the size of the gap ranged from three to four inches at the widest point down to one to one-and-one-half inches at its narrowest point. Any conflict in the plaintiff’s testimony must be construed against her. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

The standard of review of the trial court’s grant of defendants’ motion for summary judgment is a de novo review of the evidence to determine whether there is any genuine issue of material fact as to the elements required to establish the causes of action stated by plaintiff in her complaint. See Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). The standard for granting summary judgment is that the moving party must demonstrate that there is no genuine issue of material fact, and that undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. See OCGA § 9-11-56.

A party who will not bear the burden of proof at trial and who moves for summary judgment need not conclusively disprove the existence of evidence supporting every element of the nonmoving party’s case. Rather, the party need demonstrate by reference to evidence in the record only that there is an absence of evidence to support at least one essential element of the nonmoving party’s case. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 688 (3) (178 SE2d 543) (1970) cited by the dissent is distinguishable from the present case. The facts in Stuckey’s involved a motel customer who was injured when she tripped over a bedspread while trying to remove a roach from her underclothing in a room which she leased from the defendant. In that case, questions of fact existed as to the negligence of the defendant in failing to properly exterminate the premises, thereby allowing the cockroach to be present, and as to defendant’s negligence in allowing the bedspread to accumulate on the floor when making the bed, even though the plaintiff was aware of the dangerous condition of the bedspread prior to her fall. The court found that, based on a “distraction” theory, the jury was authorized under the facts of Stuckey’s to find that plaintiff’s prior knowledge of the existence of the hazard would not bar her recovery.

In Stuckey’s, there was evidence in the record of two separate acts of defendant which a jury would have been authorized to determine were negligent. While an emergency condition which results in a moment of stress or excitement amounting to a distraction may, under some circumstances, excuse a reduced degree of attention or care for plaintiff’s own safety, it cannot be used to heighten defendants’ duty, or to supply an element, otherwise missing, which plaintiff must establish in order to recover from defendant. In the present case, there is no evidence in the record of any negligence of landlord, or that the hole created in the deck to allow the tree to move in the wind constituted a defect.

To apply Stuckey’s to the facts of this case would be to make defendants the insurer of plaintiff. It is argued that where a distraction exists, plaintiff can recover from defendants whether or not defendants were negligent or responsible for the distraction. If this were true, then in the present case, plaintiff would be entitled to recover had she been injured as a result of running into the tree itself, a lifeguard stand, pool chairs, or even other guests. Except in certain narrow circumstances not herein involved, under Georgia law, liability for negligence must be based on fault, not status.

Under Lau’s standards, plaintiff must point to evidence in the record showing that the landlord committed some negligent act or failed to perform some duty which resulted in her injury. The fact that plaintiff was unfortunately injured does not establish the existence of a defect, a duty, or a breach thereof by the landlord.

“The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully on the premises.” (Punctuation omitted.) Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (416 SE2d 857) (1992).

The trial court did not err in granting defendants’ motion for summary judgment, and accordingly, we affirm.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.