FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.
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
August 23, 2023
In the Court of Appeals of Georgia A23A1076. HATCHETT v. McCAIN PROPERTY CARE, LLC.
MCFADDEN, Presiding Judge.
Benjamin Hatchett filed a complaint against McCain Property Care, LLC,
alleging that McCain was liable for injuries that Hatchett sustained after falling
through a porch railing that McCain had negligently constructed, maintained, and
inspected. McCain moved for summary judgment, asserting that there was no
evidence that it had ever constructed, maintained, or inspected the porch railing. After
a hearing, the trial court granted the motion, finding that Hatchett had provided no
evidence that McCain was responsible for the condition of the railing. Hatchett
appeals, challenging the grant of summary judgment to McCain. Because the record
shows that there are no genuine issues of material fact and that McCain was entitled
to judgment as a matter of law, we affirm. 1. Review of the evidence.
“Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. We review a grant or denial
of summary judgment de novo and construe the evidence in the light most favorable
to the nonmovant.” McRae v. Hogan, 317 Ga. App. 813, 815 (1) (732 SE2d 853)
(2012) (citation omitted).
So viewed, the evidence shows that Hatchett lived in the first floor apartment
of a two-story rental house in Columbus, Georgia. On January 8, 2015, the company
that managed the rental property inspected the house and determined, among other
things, that railings on the second-floor porch were intact because they did not move
when shaken by hand, but that several porch floor boards were rotten and needed to
be replaced. On January 22, 2015, McCain, whom the property management company
used for repairs at the house, replaced seven or eight floor boards on the porch and
painted some of those new boards.
Approximately four months later, on May 17, 2015, Hatchett was visiting
friends in the upstairs apartment when he entered the porch area and began to sit on
a cooler near a railing. As he did so, the cooler slipped from under him and he fell
against the porch railing. The railing gave way and Hatchett fell approximately 16
2 feet to the ground below, injuring his legs and back. A subsequent inspection revealed
that the railing, which was wedged between two porch columns, had not been secured
with screws or bolts to the columns.
2. Defense motion for summary judgment.
A defendant moving for summary judgment may show that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law
by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and
punctuation omitted).
McCain has pointed to the absence of evidence supporting the essential
negligence elements of duty and a breach of that duty because, contrary to Hatchett’s
claims, there is no evidence that McCain ever worked on the porch railing. See Nash
v. Reed, 349 Ga. App. 381, 385 (3) (825 SE2d 853) (2019) (“To prove negligence, a
3 plaintiff must establish four elements: duty, breach of that duty, causation, and
damages.”) (emphasis supplied). In addition to the absence of evidence, McCain has
also pointed to evidence showing that it never worked on the porch railing. McCain
cites testimony from the representative of the property management company
indicating that McCain did not construct, work on, or inspect the railing. And a
McCain worker further deposed that when the floor boards were replaced, the porch
railing was not removed or otherwise worked on; rather, the damaged boards were
simply pulled out, new boards were slid into place, and those boards were then
secured with a nail gun.
Because McCain has negated essential elements of Hatchett’s negligence claim
by reference to the record, Hatchett “must point to specific evidence giving rise to a
triable issue in order to survive summary judgment.” Hutchins v. Cochran, Cherry,
Givens, Smith & Sistrunk, 332 Ga. App. 139, 141 (770 SE2d 668) (2015) (citation and
punctuation omitted). In attempting to do so, Hatchett claims that there is
circumstantial evidence showing that McCain removed the porch railing when it
replaced the damaged floor boards. See Callaway v. Quinn, 347 Ga. App. 325, 327-
328 (1) (819 SE2d 493) (2018) (circumstantial evidence may be sufficient for a
plaintiff’s claim to survive summary judgment if other theories are shown to be less
4 probable). But the circumstantial evidence cited by Hatchett permits mere speculation
and does not demonstrate a genuine issue of material fact. See Head v. de Souse, 353
Ga. App. 309, 313 (1) (836 SE2d 227) (2019) (“summary judgment cannot be
avoided based on mere speculation or conjecture”) (citation and punctuation omitted).
Hatchett cites the deposition of the owner of the rental house, who said that he
thought it would have been hard to replace the floor boards without removing the
railing; but he admitted that he was merely speculating since he had no knowledge
about the work actually done by McCain. Although this evidence creates an issue as
to whether it was difficult for McCain to have replaced the boards without removing
the railing, it would permit only speculation as to whether McCain actually removed
the railing. Such “[g]uesses or speculation which raise merely a conjecture or
possibility are not sufficient to create even an inference of fact for consideration on
summary judgment.” Hill v. Jackson, 336 Ga. App. 679, 681 (783 SE2d 719) (2016)
(citation and punctuation omitted).
Hatchett also claims that McCain’s replacement of the floor boards in January
2015, a few days after the property management company had determined that the
railing was secure by shaking it, was the only work done on the porch before May
2015, when Hatchett fell against the railing that was later found to have been
5 unattached to the porch columns. Such circumstances permit an inference that the
railing became less secure during that four-month period between January and May
2015. But additional inferences that it became less secure during that period because
McCain in fact removed it and then put it back in place without securing it would
constitute mere speculation. Indeed, there is no evidence “as to how long the [railing
had] existed in that [unattached] condition.” City of Atlanta v. Dale, 353 Ga. App.
817, 819 (2) (840 SE2d 56) (2020).
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FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.
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
August 23, 2023
In the Court of Appeals of Georgia A23A1076. HATCHETT v. McCAIN PROPERTY CARE, LLC.
MCFADDEN, Presiding Judge.
Benjamin Hatchett filed a complaint against McCain Property Care, LLC,
alleging that McCain was liable for injuries that Hatchett sustained after falling
through a porch railing that McCain had negligently constructed, maintained, and
inspected. McCain moved for summary judgment, asserting that there was no
evidence that it had ever constructed, maintained, or inspected the porch railing. After
a hearing, the trial court granted the motion, finding that Hatchett had provided no
evidence that McCain was responsible for the condition of the railing. Hatchett
appeals, challenging the grant of summary judgment to McCain. Because the record
shows that there are no genuine issues of material fact and that McCain was entitled
to judgment as a matter of law, we affirm. 1. Review of the evidence.
“Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. We review a grant or denial
of summary judgment de novo and construe the evidence in the light most favorable
to the nonmovant.” McRae v. Hogan, 317 Ga. App. 813, 815 (1) (732 SE2d 853)
(2012) (citation omitted).
So viewed, the evidence shows that Hatchett lived in the first floor apartment
of a two-story rental house in Columbus, Georgia. On January 8, 2015, the company
that managed the rental property inspected the house and determined, among other
things, that railings on the second-floor porch were intact because they did not move
when shaken by hand, but that several porch floor boards were rotten and needed to
be replaced. On January 22, 2015, McCain, whom the property management company
used for repairs at the house, replaced seven or eight floor boards on the porch and
painted some of those new boards.
Approximately four months later, on May 17, 2015, Hatchett was visiting
friends in the upstairs apartment when he entered the porch area and began to sit on
a cooler near a railing. As he did so, the cooler slipped from under him and he fell
against the porch railing. The railing gave way and Hatchett fell approximately 16
2 feet to the ground below, injuring his legs and back. A subsequent inspection revealed
that the railing, which was wedged between two porch columns, had not been secured
with screws or bolts to the columns.
2. Defense motion for summary judgment.
A defendant moving for summary judgment may show that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law
by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and
punctuation omitted).
McCain has pointed to the absence of evidence supporting the essential
negligence elements of duty and a breach of that duty because, contrary to Hatchett’s
claims, there is no evidence that McCain ever worked on the porch railing. See Nash
v. Reed, 349 Ga. App. 381, 385 (3) (825 SE2d 853) (2019) (“To prove negligence, a
3 plaintiff must establish four elements: duty, breach of that duty, causation, and
damages.”) (emphasis supplied). In addition to the absence of evidence, McCain has
also pointed to evidence showing that it never worked on the porch railing. McCain
cites testimony from the representative of the property management company
indicating that McCain did not construct, work on, or inspect the railing. And a
McCain worker further deposed that when the floor boards were replaced, the porch
railing was not removed or otherwise worked on; rather, the damaged boards were
simply pulled out, new boards were slid into place, and those boards were then
secured with a nail gun.
Because McCain has negated essential elements of Hatchett’s negligence claim
by reference to the record, Hatchett “must point to specific evidence giving rise to a
triable issue in order to survive summary judgment.” Hutchins v. Cochran, Cherry,
Givens, Smith & Sistrunk, 332 Ga. App. 139, 141 (770 SE2d 668) (2015) (citation and
punctuation omitted). In attempting to do so, Hatchett claims that there is
circumstantial evidence showing that McCain removed the porch railing when it
replaced the damaged floor boards. See Callaway v. Quinn, 347 Ga. App. 325, 327-
328 (1) (819 SE2d 493) (2018) (circumstantial evidence may be sufficient for a
plaintiff’s claim to survive summary judgment if other theories are shown to be less
4 probable). But the circumstantial evidence cited by Hatchett permits mere speculation
and does not demonstrate a genuine issue of material fact. See Head v. de Souse, 353
Ga. App. 309, 313 (1) (836 SE2d 227) (2019) (“summary judgment cannot be
avoided based on mere speculation or conjecture”) (citation and punctuation omitted).
Hatchett cites the deposition of the owner of the rental house, who said that he
thought it would have been hard to replace the floor boards without removing the
railing; but he admitted that he was merely speculating since he had no knowledge
about the work actually done by McCain. Although this evidence creates an issue as
to whether it was difficult for McCain to have replaced the boards without removing
the railing, it would permit only speculation as to whether McCain actually removed
the railing. Such “[g]uesses or speculation which raise merely a conjecture or
possibility are not sufficient to create even an inference of fact for consideration on
summary judgment.” Hill v. Jackson, 336 Ga. App. 679, 681 (783 SE2d 719) (2016)
(citation and punctuation omitted).
Hatchett also claims that McCain’s replacement of the floor boards in January
2015, a few days after the property management company had determined that the
railing was secure by shaking it, was the only work done on the porch before May
2015, when Hatchett fell against the railing that was later found to have been
5 unattached to the porch columns. Such circumstances permit an inference that the
railing became less secure during that four-month period between January and May
2015. But additional inferences that it became less secure during that period because
McCain in fact removed it and then put it back in place without securing it would
constitute mere speculation. Indeed, there is no evidence “as to how long the [railing
had] existed in that [unattached] condition.” City of Atlanta v. Dale, 353 Ga. App.
817, 819 (2) (840 SE2d 56) (2020). The deponent who testified that the management
company shook the railing explained that the company’s belief that it was intact was
only a lay opinion and that the company would not have inspected the ends of the
railing to determine if it was actually affixed to the porch structure. Hatchett’s own
expert offered no opinion as to whether the railing had ever been attached properly
to the porch, stating by affidavit only that the railing had been wedged between the
columns and was not fastened with screws or bolts. Hatchett has failed to cite any
“additional evidence to contextualize or lend support to [his speculative] arguments
regarding [McCain being responsible for] the condition of the [railing].” Id. (citation
and punctuation omitted). Since Hatchett relies on evidence that “is insufficient to
raise an issue of fact about [McCain’s] alleged negligence . . . , summary judgment
was proper.” Heath v. Rush, 259 Ga. App. 887, 888 (578 SE2d 564) (2003).
6 3. Trial court’s order.
Hatchett argues that the trial court committed reversible error by applying the
wrong legal standard and conflating speculative evidence with circumstantial
evidence in its summary judgment order. We disagree.
(a) Legal standard.
Contrary to Hatchett’s assertion, the trial court did not apply the wrong legal
standard. In its order, the court expressly recited and applied the same settled
standards for summary judgment as set forth in this opinion. See Cowart, supra
(“standards for reviewing summary judgments are settled”). It is true, as Hatchett
notes, that the trial court stated that Hatchett had “provided no concrete evidence that
[McCain] was responsible for the condition of the railing which caused his injuries.”
But this statement did not, as Hatchett claims, improperly shift the burden of proof
to Hatchett as the non-movant. Rather, the trial court was simply engaging in the
proper analysis, as discussed above, that after McCain negated essential elements of
Hatchett’s claim by reference to the record, Hatchett was then required to cite specific
evidence showing a genuine issue of material fact. The trial court’s use of the phrase
“concrete evidence,” while not precise, did not impose a heightened burden on
Hatchett when considered in the context of the entire order. It is clear that the trial
7 court’s phrasing was merely part of its correct finding that Hatchett had failed to meet
his burden of pointing to specific evidence in the record that created a triable issue.
See Terrell v. Payne, 280 Ga. 51, 51-52 (622 SE2d 330) (2005) (reviewing court
should not interpret trial court order in such a way to make it internally inconsistent).
(b) Conflating speculative and circumstantial evidence.
The trial court also did not commit reversible error by purportedly conflating
speculative and circumstantial evidence. Again, considering the entire order, it is
apparent that the court properly found that the circumstantial evidence cited by
Hatchett was insufficient to survive summary judgment because it allowed only
speculation and conjecture, but did not demonstrate a genuine issue of material fact.
Judgment affirmed. Brown and Markle, JJ., concur.