Christina Watson v. Katherine Dana

• Court: Court of Appeals of Georgia
• Decided: September 10, 2020
• Docket: A20A1352
• Status: Published

Opinion

SECOND DIVISION MILLER, P. J., MERCIER and COOMER, 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

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

September 10, 2020

In the Court of Appeals of Georgia A20A1352. WATSON v. DANA.

MERCIER, Judge.

In this premises liability action, Christina Watson sued Katherine Dana for

damages sustained when Watson stepped into a concealed hole in the backyard of a

rental home owned by Dana. Asserting that she lacked knowledge of the alleged

hazard, Dana moved for summary judgment. The trial court granted Dana’s motion,

and Watson appeals. We reverse.1

1 Dana has asked us to dismiss Watson’s appeal on the ground that Watson failed to timely pay costs for preparation of the appellate record. Pursuant to Court of Appeals Rule 20, an “[a]ppellee shall be deemed to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript of the evidence and proceedings or transmittal of the record to this Court, unless objection thereto was made and ruled upon in the trial court prior to transmittal.” (emphasis supplied). The record shows that Dana filed a motion to dismiss in the trial court, citing Watson’s delay in paying costs. Before the trial court ruled on the motion, however, the appellate record was transmitted to us. Summary judgment is appropriate when no genuine issues of material fact

remain and the movant is entitled to judgment as a matter of law. See Witt v. Ben

Carter Properties, 303 Ga. App. 107 (692 SE2d 749) (2010). We review the grant of

summary judgment de novo, construing the evidence and all reasonable inferences

in the light most favorable to the non-movant. See id.

So viewed, the record shows that Dana leased the rental home at issue to Mindy

Wadley. On June 4, 2016, Wadley held a party at the house, which Watson attended.

During the party, Watson walked into the backyard to visit with a friend, who was

sitting in a group of chairs arranged in a circle. As she approached an empty chair,

Watson stepped into a hidden, oblong-shaped hole. The hole was “about the size of

[a] legal pad,” deep enough that Watson’s foot and ankle disappeared, and obscured

by overgrown grass. Watson heard a “loud sharp noise” and sensed immediate pain.

X-rays later revealed that her ankle was broken and a ligament was torn.

Watson sued Dana, alleging that Dana failed to exercise ordinary care in

keeping the rental home premises in a safe condition. Dana moved for summary

judgment, arguing that she had no knowledge of any hazardous condition on the

Accordingly, the motion to dismiss filed in this Court is DENIED. See Court of Appeals Rule 20; Lipsteuer v. CSX Transp., 236 Ga. App. 806, n.1 (513 SE2d 532) (1999).

2 property, which was in the possession of Wadley, her tenant. The trial court agreed

with Dana and granted the motion. This appeal followed.

Generally, a landlord that fully parts with possession of leased property is not

liable to third parties injured on the property “unless it is shown that the damages

resulted either from failure to repair the premises or faulty construction of the

premises.” Gainey v. Smacky’s Investments, 287 Ga. App. 529, 530 (2) (652 SE2d

167) (2007) (citations and punctuation omitted). See also OCGA § 44-7-14 (defining

tort liability of landlord). With respect to failure to repair, an “out-of-possession”

landlord is liable “only in instances where there is a duty to repair and notice has been

given of the defect.” Gainey, supra at 530 (2) (a) (citation and punctuation omitted).

A landlord that retains control over leased premises, however, may be liable “even

without actual notice of the defect, if, in the exercise of ordinary care, he should have

known of it.” Paul v. Sharpe, 181 Ga. App. 443, 446 (2) (352 SE2d 626) (1987)

(citation, punctuation, and emphasis omitted). Such landlord

is under the responsibility of a general owner of real estate who holds out a general invitation to others to enter upon and use his property, and is bound to see that reasonable care is exercised to keep the portion thus retained by him reasonably safe and fit for the uses which he has invited others to make of it.

3 Id. at 445 (1) (citation and punctuation omitted). See also OCGA § 51-3-1 (imposing

duty on landowner to exercise ordinary care to keep premises and approaches safe for

invitees).

Wadley testified via affidavit that pursuant to their lease contract, Dana agreed

“to provide for the maintenance of the outside [of the rental home], including the

yard.” To this end, Dana sent a man to the property to “perform the outside and yard

maintenance.” As described by Wadley: “During the term of my lease, I was never

responsible, under our agreement[,] for the maintenance of the outside of the home,

including the yard. Miss Dana never relinquished control of the outside.” Wadley’s

testimony raises a question of fact as to whether Dana retained control over the

backyard and thus owed a duty of ordinary care to keep the yard reasonably safe for

invitees, such as Watson. See Swainsboro v. Riner, 195 Ga. App. 390, 391 (393 SE2d

519) (1990) (evidence created jury issue as to whether landlord had parted with

possession of leased premises); Paul, supra at 444 (1) (“A guest of a tenant is an

invitee upon the premises of the landlord where he is invited by the tenant and visits

him in such premises.”) (citation and punctuation omitted).

A factual issue also exists as to Dana’s knowledge of the backyard hazard. As

noted above, knowledge may be actual or, where a landowner should have known

4 about the hazard in the exercise of ordinary care, constructive. See Paul, supra at 446

(2). Watson has pointed to no evidence that Dana actually knew about the hole in the

rental home’s yard. But she offered proof that Dana did not act responsibly in taking

care of the outside of the house. Dana admittedly did not inspect the yard for hazards

or perform “work . . . in the back yard,” and Wadley testified that Dana “was very

poor at maintaining said yard.” Moreover, Watson’s testimony regarding the size of

the hole and the overgrowth covering it would permit a reasonable jury to “infer both

that [the hole] had been in existence for a substantial period of time and that it was

large enough to have been observable during routine mowing and maintenance.”

Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432) (1991).

Because questions of fact remain as to Dana’s responsibility for maintaining

the yard and her constructive knowledge of the hazard at issue, the trial court erred

in granting her motion for summary judgment. See Lawless, supra; Swainsboro, supra

(evidence that landlord maintained some control over building but failed to inspect

the premises raised question of fact as to constructive knowledge of hazard). Compare

Witt, supra at 110-112 (given landowner’s exercise of ordinary care in routinely

inspecting and carefully maintaining grassy median in shopping center, landowner

was not charged with constructive knowledge of concealed, difficult-to-find hole in

5 median); Lonard v. Cooper & Sugrue Properties, 214 Ga. App. 862, 864 (449 SE2d

348) (1994) (no evidence that landlord had constructive knowledge of hole in tenant’s

yard; although landlord performed some maintenance work on the property, the work

took place “in areas away from the area where [the tenant] fell”). Accordingly, we

reverse.

Judgment reversed. Miller, P. J., and Coomer, J., concur.