Daniel Cook v. Smg Construction Services, LLC

• Court: Court of Appeals of Georgia
• Decided: October 29, 2024
• Docket: A24A0886
• Status: Published

Opinion

FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, J.

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

October 29, 2024

In the Court of Appeals of Georgia A24A0886. COOK v. SMG CONSTRUCTION SERVICES, LLC.

MCFADDEN, Presiding Judge.

Daniel Cook was injured in a fall from an unprotected balcony while installing

cabinetry in a house that was under construction. He sought to recover against the

owner of the house, SMG Construction Services, LLC, for premises liability, but the

trial court granted summary judgment in SMG’s favor.

In his deposition, Cook admitted that he had been aware of the unprotected

balcony, but explained that because of the combined effect of “the drywall dust, the

overspray and the cloudy day” he “thought it was further back than it was.” Whether

to credit that explanation is a jury question. So we reverse.1

1 Oral argument was held in this case on May 8, 2024, and is archived on the court’s website. See Court of Appeals of Georgia, Oral Argument, Case No. 1. Facts

Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” OCGA § 9-11-56 (c). We review the grant or denial

of summary judgment de novo, “view[ing] the evidence, and all reasonable inferences

drawn therefrom, in the light most favorable to the nonmovant.” Cowart v. Widener,

287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

So viewed, the evidence showed that SMG owned the property at issue and was

in the process of constructing a house on it. Cook performed cabinetry work for a

subcontractor on the construction project.

On Monday, December 20, 2021, the subcontractor sent Cook to install kitchen

and bathroom cabinetry in the house. After Cook arrived at the worksite early that

morning, he carried tools and materials into the house and took measurements, which

required him to walk up and down the stairs to the second floor several times.

A24A0886 (May 8, 2024), available at http://vimeo.com/944693847. 2 The house had an interior balcony on its second floor that overlooked the entry

foyer. A temporary guardrail had been removed from the balcony so that sheetrock

work could be performed. Typically, after the sheetrock work was completed, a

permanent rail would be installed as part of the process of installing trim. In this case,

the sheetrock work was completed the end of the week before Cook arrived at the

house, and the trim was scheduled to be installed on the same day that Cook was

installing cabinetry.

Before Cook began his work, SMG’s owner briefly visited the job site and spoke

with him. While the owner was there, he learned that the trim work would not be done

that day.

Cook was aware that there was no guardrail on the second-floor balcony. But

the balcony edge was not in the immediate area where Cook was working. And he did

not realize how close it was to his work area because it was a cloudy day, there was no

artificial lighting in the area, there was drywall dust and overspray on the floor, and the

color of the balcony edge was not distinct from the color of the opposing wall.

Cook needed to unkink an air hose to perform his work on one of the second-

floor bathrooms. Holding the hose, he began to “shuffle” backward across the floor

3 outside the bathroom. Not realizing his proximity to the unguarded balcony edge, he

stepped off of it and fell to the first floor, badly injuring himself.

2. Analysis

Because Cook was working for SMG’s subcontractor, he “was an invitee to

whom [SMG] owed a duty under OCGA § 51-3-1 to use ordinary care to keep the

premises safe.” Ferguson v. Premier Homes, 303 Ga. App. 614, 615 n. 1 (695 SE2d 56)

(2010). Under that Code section, “[w]here an owner or occupier of land, by express

or implied invitation, induces or leads others to come upon his premises for any lawful

purpose, he is liable in damages to such persons for injuries caused by his failure to

exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

We analyze this case under the well-established body of law applicable to slip-

and-fall or trip-and-fall actions. “[T]o recover for injuries sustained in a slip-and-fall

action, an invitee must prove (1) that the defendant had actual or constructive

knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard

despite the exercise of ordinary care due to actions or conditions within the control

of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493

SE2d 403) (1997).

4 Because SMG does not claim that it lacked knowledge of the hazard in this case,

we consider only the second prong of the Robinson test: whether a genuine issue of

material fact exists as to whether Cook “intentionally and unreasonably exposed

[him]self to a hazard of which [he] knew or, in the exercise of ordinary care, should

have known.” Robinson, 268 Ga. at 749 (2) (b). As Justice Pinson has explained, an

invitee cannot recover if she “either (a) knew about the hazard and intentionally

disregarded it, or (b) could have discovered and avoided the hazard if she had

exercised ordinary care for her own safety. . . .” Givens v. Coral Hospitality–GA, 317

Ga. 282 (892 SE2d 782) (2023) (Pinson, J., concurring) (citing American Multi-

Cinema v. Brown, 285 Ga. 442, 445 (2) (679 SE2d 25) (2009)). In considering this

question we must keep in mind “that the ‘routine’ issues of premises liability, i. e., the

negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care

for personal safety are generally not susceptible of summary adjudication, and that

summary judgment is granted only when the evidence is plain, palpable, and

undisputed.” Robinson, 268 Ga. at 748 (2) (b).

The hazard in this case was a static condition. See Crebs v. Bass Pro Outdoor

World, 360 Ga. App. 121, 123 n. 2 (860 SE2d 802) (2021) (“A static condition is one

5 that does not change and is dangerous only if someone fails to see it and walks into

it.”) (citation and punctuation omitted). In such cases, if an invitee “has as much

knowledge [of the condition or hazard] as the [premises owner] does[ and i]f nothing

obstructs the invitee’s ability to see the static condition, the [owner] may safely

assume that the invitee will see it and will realize any associated risks.” Id. at 123

(citation, punctuation, and emphasis omitted).

But it is the invitee’s “knowledge of the specific hazard which precipitates the

injury which is determinative, not merely [his] knowledge of the generally prevailing

hazardous conditions or of the hazardous conditions which [he] observes and avoids.”

Johnson Street Properties v. Clure, 302 Ga. 51, 56 (1) (a) (iii) (805 SE2d 60) (2017)

(citation and punctuation omitted; emphasis supplied). Accord Sanderson Farms v.

Atkins, 310 Ga. App. 423, 428 (2) (713 SE2d 483) (2011); Jackson v. Waffle House, 245

Ga. App. 371, 374 (2) (537 SE2d 188) (2000). “[W]e have, on numerous occasions,

reversed the grant of summary judgment to a defendant when the record did not

clearly substantiate that the plaintiff had successfully negotiated the hazard[,]” for

example, because the specific hazard had not been visible to the plaintiff. Barton v.

City of Rome, 271 Ga. App. 858, 861 (610 SE2d 566) (2005).

6 SMG argues that there is evidence of Cook’s actual knowledge that the second

flood balcony did not have a guardrail. Cook does not dispute that point, but he argues

that his knowledge only extended to a generally prevailing hazard, that there was an

unguarded balcony in the house. He argues that a genuine issue of material fact exists

as to whether the conditions at the time of his fall — the poor lighting, drywall dust

and overspray, and lack of visual delineation between the balcony edge and the facing

wall — created an optical illusion that camouflaged the closeness of the balcony edge

to his work area and prevented him from perceiving the risk it posed to him.

There is Georgia authority that supports Cook’s argument. For example, in

Strauss v. City of Lilburn, 329 Ga. App. 361, 362 (765 SE2d 49) (2014), the plaintiff fell

when she “just didn’t see” a single step leading down to a sidewalk outside a

restaurant. The plaintiff had actual knowledge that “there was a step in the area” but

she had not actually traversed that step before her fall. Id. at 364. Nevertheless, we

reversed a grant of summary judgment to the city that owned the sidewalk because

there was evidence that conditions, including the lack of “delineation of the step[,]”

served to camouflage the specific hazard from the plaintiff’s vantage point. Id. at 362-

365. We concluded that whether the plaintiff “exercised ordinary care for her own

7 safety and whether she had greater or equal knowledge of the specific hazard posed

by the single-step riser [were] questions of fact to be resolved at trial.” Id. at 364.

Similarly, in Myers v. Harris, 257 Ga. App. 286 (570 SE2d 600) (2002), the

plaintiff, a thrift store shopper, walked “up a concrete ramp without handrails to an

elevated furniture showroom.” She then “walk[ed] between pieces of the tightly

packed furniture to examine a table and chairs displayed on the concrete ledge

adjacent to the ramp.” Id. The ledge was unguarded, and the plaintiff “stepped back

and suddenly fell off the ledge, onto and down the ramp she had just traversed,

injuring her foot, ankle, and elbow.” Id. at 286-287. She sued the thrift store

proprietor, alleging that it had “failed to properly warn her of the dangers of the ramp

and adjoining ledge[,]” and she argued on appeal that given the conditions “it was

difficult to determine where the edge of the ledge ended.” Id. at 287-288 (1). There

was evidence that the plaintiff “did not see where the floor ended” because her ability

to see that edge was obstructed or impaired. Id. at 287 (1). And although there was

evidence that the plaintiff had some knowledge of the hazard, she had not previously

traversed it. Id. at 287-288 (1). Noting that under Robinson v. Kroger, supra, an invitee

is not required to continuously survey the floor for defects, we held that questions of

8 fact existed as to the plaintiff’s knowledge of the specific hazard and whether she

exercised reasonable care, “[e]ven though as she ascended the ramp, [the plaintiff]

could have seen the edge of the elevated showroom.” Id. at 288 (1).

We are persuaded by these decisions. Like the plaintiffs in Strauss and Myers,

Cook knew there was a static hazard nearby, but there is evidence that existing

conditions affected his ability to perceive its exact location and appreciate the specific

risk it posed to him.

We acknowledge that, in his deposition, Cook stated that he “could see where

it dropped off” as evidence that Cook had actual knowledge of the location of the

unprotected balcony edge in relation to his work area. But Cook made that statement

in the midst of a larger discussion about how he did not know the exact location of the

balcony edge because the conditions at the time obscured his view:

Q. But going up the stairs facing that area you saw that it was an open area, correct?

A. Yes and no.

Q. Yes, and how did you see that as an open area?

9 A. I could see where it dropped off, but as I explained already, the drywall dust, the overspray and the cloudy day all kind of blended it together. So, I thought it was further back than it was.

(Emphasis supplied.) Later in his testimony, Cook reiterated that because of the

conditions, he “thought it was further away from where [he] was.”

We cannot disregard Cook’s testimony that he did not accurately perceive the location

of the unguarded balcony edge. Instead we must construe that testimony in Cook’s

favor and find, for purposes of summary judgment, that he lacked actual, specific

knowledge of the location of that edge.

Likewise, the evidence that Cook made several trips up and down the stairs to

the second-floor bathrooms does not compel a finding that Cook had constructive

knowledge of the hazard. There is no evidence that Cook ever “traversed” the

specific hazard in this case — the unguarded balcony edge. Instead, there is evidence

that Cook walked near it as he carried materials and supplies to the bathrooms, which

he testified were not in the “immediate” area of the balcony edge.

Certainly, a finder of fact may find unbelievable Cook’s testimony that he did

not know the exact location of the balcony edge, or may disagree with Cook that it was

outside his immediate work area, or may conclude that Cook failed to exercise

10 reasonable care when he decided to walk backward across the balcony without first

ascertaining exactly where it ended. But these are questions for the finder of fact to

determine, not the trial court and not this court. So we find that jury questions exist

as to whether Cook’s knowledge of the specific hazard, namely the proximity of the

balcony’s edge to the area on the second floor where he was working, was equal to or

greater than SMG’s, and whether he exercised ordinary care for his own safety under

the circumstances. See Strauss, 329 Ga. App. at 365; Myers, 257 Ga. App. at 287-288

(1). See also Simon v. Murphy, 350 Ga. App. 291, 294-295 (1) (829 SE2d 380) (2019)

(plaintiff’s general knowledge that a shopping cart corral had a damaged crossbar did

not entitle the defendant store to summary judgment where a factual question existed

as to the plaintiff’s specific knowledge of the danger created by an elevated section of

the crossbar); Pinder v. H & H Food Svcs., 326 Ga. App. 493, 502 (3) n. 9 (756 SE2d

721) (2014) (plaintiff’s testimony that an optical illusion concealed a hazardous

condition created a question of fact as to whether she could have detected the

condition) (physical precedent only); Fitzpatrick v. Hyatt Corp., 335 Ga. App. 203, 207

(2) (b) (779 SE2d 110) (2015) (jury question existed as to plaintiff’s exercise of

reasonable care when she stepped backward without looking and fell off an unsafely

11 configured stage); Hagadorn v. Prudential Ins. Co., 267 Ga. App. 143, 145-147 (598

SE2d 865) (2004) (jury questions existed as to plaintiff’s superior knowledge of

hazard caused by a drainage culvert, as well as her exercise of ordinary care, where the

conditions created an optical illusion that prevented the plaintiff from appreciating the

danger involved). Compare Crebs, 360 Ga. App. at 123-124 (where the evidence

showed that the plaintiff store patron earlier had observed a display fence protruding

into an aisle and there was “no dispute that the fencing was visible, that there was

sufficient lighting, and that the fencing did not blend into its surroundings[,]” then as

a matter of law it was an open and obvious static condition about which the plaintiff

had equal knowledge, entitling the store to summary judgment); Scott v. Forest Acres

Full Gospel Church, 352 Ga. App. 145, 149-151 (1) (834 SE2d 286) (2019) (there was

no genuine issue of fact as to the plaintiff’s superior knowledge of the hazard or his

failure to exercise ordinary care, and so the defendant was entitled to summary

judgment, where the plaintiff walked on a building roof despite knowing that there

were unguarded skylights and knowing that, once he was on the roof, he would not be

able to tell where they were); Forest Cove Apts. v. Wilson, 333 Ga. App. 731, 735 (776

SE2d 664) (2015) (as a matter of law, a contractor hired to replace a bathtub and

12 damaged subfloor in an apartment had equal knowledge of the hazardous conditions

of the exposed floor joists, which broke as she was standing on them after observing

their hazardous condition).

Finally, we are not persuaded by SMG’s argument that a different legal

standard than OCGA § 51-3-1 applies because Cook was an independent contractor.

“[A]n independent contractor is expected to determine for himself whether his place

of employment is safe or unsafe, and ordinarily may not recover against the owner for

injuries sustained in the performance of the contract.” Forest Cove Apts., 333 Ga. App.

at 735 (citation and punctuation omitted). See also Young v. Richards Homes, 271 Ga.

App. 382 (1) (609 SE2d 729) (2005). Nevertheless, an independent contractor is still

an invitee for purposes of premises liability under OCGA § 51-3-1. See Schuessler v.

Bennett, 287 Ga. App. 880, 883-885 (1) (652 SE2d 884) (2007). See also Glenn v.

Gibbs, 323 Ga. App. 18, 22 (1) (b) (746 SE2d 658 (2013) (physical precedent only).

Cook does not fall into the exceptions to OCGA § 51-3-1 that arise when an

independent contractor is “employed to do work which may be considered

dangerous[,]” Glenn, supra at 23 (1) (b), either because the contractor

was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality and the unsafe conditions from

13 which the injury resulted arose from or were incidental to the work undertaken by him, [or where the contractor was] hired to perform work on the premises that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses.

Forest Cove Apts., 333 Ga. App. at 735-736 (citations and punctuation omitted). The

work for which Cook was hired — installation of bathroom and kitchen cabinetry —

fits neither of these categories. Compare Odister v. Leach, 257 Ga. App. 106, 108-109

(570 SE2d 391) (2002) (exception to OCGA § 51-3-1 applied where plaintiff’s “injury

was received from a danger that would ordinarily and naturally exist in doing the work

which he was employed to perform”) (citation and punctuation omitted).

For these reasons, we reverse the grant of summary judgment to SMG.

Judgment reversed. Mercier, C. J., and Rickman, J., concur.