Sacker v. Perry Realty Services, Inc.

457 S.E.2d 208, 217 Ga. App. 300, 95 Fulton County D. Rep. 1549, 1995 Ga. App. LEXIS 452

• Court: Court of Appeals of Georgia
• Decided: March 31, 1995
• Docket: A94A1967
• Status: Published

Opinions

Johnson, Judge.

Sandra Sacker filed this action against Perry Realty Services, Inc., and D’Youville Condominium Association, Inc., for injuries sustained when she fell while walking through the parking lot of the condominium where she resides. Perry Realty and D’Youville moved for summary judgment, which the trial court granted. Sacker appeals.

Sacker contends the trial court erred in granting the defendants’ motions for summary judgment because genuine issues of material fact exist as to whether Perry Realty, as agent for D’Youville, was negligent in maintaining the parking area. We agree and reverse.

Viewed in the light most favorable to Sacker as the respondent in a motion for summary judgment, the evidence shows Sacker owns and resides in a condominium unit at D’Youville Condominium. Sacker normally parked her car in the garage behind her unit and her husband parked his vehicle in the parking lot in front of the unit. One evening Sacker went to retrieve a case of soft drinks from her husband’s car. The lighting in the parking area was poor and Sacker was unable to see the ground. As Sacker carried the drinks, she tripped over a railroad tie, fell over a retaining wall and was injured. The railroad ties were used as parking space indicators. The tie Sacker tripped over was out of place at the time of the accident. Sacker knew prior to the accident that the lighting in the area was poor, but she had never seen the railroad ties out of place.

The condominium association retained Perry Realty to manage the property. Robert Powser, Perry Realty’s on-site manager, was responsible for inspecting and supervising maintenance of common areas at D’Youville. As part of his duties, Powser visited the property two days each week. He admitted on deposition that the railroad ties were not secured and that he regularly found them out of place. Powser and the landscaping crew repositioned the ties about four to six times each week. Powser also admitted that the day after the fall he found the tie which was located in front of Sacker’s unit to be out of place. In addition, Powser testified that the lighting in the parking lot was “not . . . superior to the new pink lights,” that there were shadows in the parking lot, and that he wanted to upgrade the lights for “looks” and for “better lighting.” Powser deposed that he only learned about any lighting problem after the accident, though he visited the complex one night each month.

Sacker argues that because she owns a condominium at D’Youville, she was an invitee of the common area rather than a mere licensee as Perry Realty claims.¹ “Whether a person is an invitee or licensee depends upon the nature of his relation or contact with the owner of the premises. ... If the relationship is one of mutual interest to the parties, the injured party is an invitee of the owner. The enterprise must be mutual to the extent that each party is lawfully interested therein; or that there is common interest or mutual advantage involved.” (Citations and punctuation omitted.) Walker v. Daniels, 200 Ga. App. 150, 154 (1) (407 SE2d 70) (1991). As is evident from the Declaration of Condominium, there exists a clear mutuality of obligations and interests between Sacker and D’Youville. Sacker was therefore an invitee. D’Youville therefore had a duty to exercise ordinary care to protect her from unreasonable risks of which it had superior knowledge. See Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992).

In this case, the property manager for the condominium association was on notice that the railroad ties were not secured and regularly became displaced, yet the only action he took was to move them back into position when he noticed them out of place and to inform the landscaping crew to do the same. Sacker’s testimony that she had never noticed the ties out of place and that the darkness prevented her from seeing the displaced tie was uncontradicted. “The question of a violation of the duty to exercise ordinary care to afford [invitees] premises that are reasonably safe ... is a question of negligence and this court is bound by the rule that such matters are for the jury except in plain, palpable and indisputable cases.” (Punctuation omitted.) Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 813 (1) (318 SE2d 235) (1984). The evidence in this case, considering the reasonable inferences that may be drawn therefrom, presents matters which should be resolved by the jury. See Waits v. Makowski, 191 Ga. App. 794, 796 (1) (383 SE2d 175) (1989). A genuine issue of material fact exists as to whether Perry Realty and D’Youville were negligent in maintaining unsecured railroad ties in a dimly lit parking area. See id. at 814 (1).

Perry Realty’s argument that Sacker successfully negotiated the condition for 11 years and therefore knew of the danger is without merit. It is true that a person who has successfully negotiated a dangerous condition on a previous occasion is presumed to have knowledge of it and cannot recover for resulting injuries. Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 125 (1) (444 SE2d 341) (1994). However, there is no evidence Sacker ever negotiated this particular hazard. Her testimony was that she did not regularly use the front parking area and had never seen the railroad ties out of place. Therefore, the fact that she managed to avoid tripping over the ties when they were properly positioned or during daylight hours does not mean she had knowledge of or had successfully negotiated the dangerous condition which caused her to fall that night. “It is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.” (Punctuation omitted; emphasis in original.) Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 660 (445 SE2d 810) (1994). Sacker knew there were railroad ties in the area but not that they were out of place, a dangerous condition exacerbated by the poor lighting.

Contrary to Perry Realty’s argument, there is evidence that Sacker exercised ordinary care. Sacker testified that she was looking where she was going, including toward the ground, but that darkness prevented her from seeing the ground in front of her. The evidence created a factual issue as to whether Sacker exercised reasonable care and whether Perry Realty exercised ordinary care in making the premises safe for its invitees. See Burke v. Bi-Lo, 212 Ga. App. 115, 116 (441 SE2d 429) (1994). In moving for summary judgment, Perry Realty had the burden of showing that no genuine issue of material fact existed as to its lack of superior knowledge of the danger created by the railroad ties. Id. at 118. We cannot decide that Sacker had equal knowledge of the hazard as a matter of law. Therefore, the trial court erred in granting Perry Realty’s and D’Youville’s motions for summary judgment.

Finally, we do not agree with D’Youville’s assertion that summary judgment in its favor was mandated because Perry Realty was an independent contractor. Even assuming Perry Realty is an independent contractor, D’Youville would not necessarily be relieved of all liability to Sacker. “To the general rule of the employer’s nonliability for the torts of independent contractors codified in OCGA § 51-2-4, there are several exceptions. One of those exceptions, codified in OCGA § 51-2-5 (3); is where the wrongful act is the violation of a duty imposed by express contract upon the employer; for where a person contracts to do a certain thing, he cannot evade liability by employing another to do that which he has agreed to perform.” (Citations and punctuation omitted.) Crispens Enterprise v. Halstead, 209 Ga. App. 133, 134 (2) (433 SE2d 353) (1993). In the Declaration of Condominium, D’Youville is expressly obligated to maintain and keep the common areas in good repair. See generally Fleetwood v. Wieuca North Condo. Assn., 182 Ga. App. 15, 16 (1) (354 SE2d 623) (1987). Sacker has an independent obligation to pay fees which enable the association to perform those services. D’Youville may not escape liability by arguing that the company it employed to perform its obligations was an independent contractor.

Judgment reversed.

Beasley, C. J., McMurray, P. J., Blackburn and Ruffin, JJ., concur. Birdsong, P. J., Pope, P. J., and Andrews, J., dissent. Smith, J., not participating.

1 We note that Sacker is not precluded from bringing a negligence action against the association by virtue of her ownership of an interest in the common area or by her membership in the association. See OCGA § 44-3-106 (g).