Scrocca v. Ashwood Condominium Ass'n

756 S.E.2d 308, 326 Ga. App. 226, 2014 Fulton County D. Rep. 625, 2014 WL 961056, 2014 Ga. App. LEXIS 150
CourtCourt of Appeals of Georgia
DecidedMarch 13, 2014
DocketA13A2411
StatusPublished
Cited by6 cases

This text of 756 S.E.2d 308 (Scrocca v. Ashwood Condominium Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scrocca v. Ashwood Condominium Ass'n, 756 S.E.2d 308, 326 Ga. App. 226, 2014 Fulton County D. Rep. 625, 2014 WL 961056, 2014 Ga. App. LEXIS 150 (Ga. Ct. App. 2014).

Opinion

McFadden, Judge.

Nancy Scrocca, the plaintiff in this premises liability case, appeals the grant of summary judgment to Ashwood Condominium Association, Inc. and its management company, Atlanta Community Services, Inc. Scrocca argues that the trial court erred by failing to find that the defendants had a contractual duty to remove ice and snow from the limited common elements of the condominium complex where she was injured. We find that the trial court correctly concluded that under the condominium documents, Scrocca, not the defendants, had the duty to remove the ice and snow from the walkway on which she fell. We therefore affirm the grant of summary judgment to the defendants. We do not reach Scrocca’s other claims of error based on various tort theories.

1. Facts.

Summary judgment is properly granted when the pleadings and evidence “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). “On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.” Southern Telecom v. TW Telecom of Ga., 321 Ga. App. 110, 111 (1) (741 SE2d 234) (2013) (citation and punctuation omitted).

[227]*227So viewed, the record shows that on January 9, 2011, the Atlanta area experienced a snowstorm. Several inches of snow fell. As a result of the storm, Scrocca, the owner of a unit in the Ashwood Condominiums, stayed in her condominium for several days. On January 13, Scrocca exited her condominium, intending to go to the grocery store. One part of the stoop at the entrance to her condominium appeared to her to have ice and snow on it, while the remainder appeared to be clear. Scrocca looked toward the walkway that led from her condominium to the parking lot; it appeared that the snow had melted along the lefthand side of the walkway. Scrocca walked along what she thought was the clear pathway and fell a short distance from her stoop, fracturing her wrist. Scrocca had not contacted the condominium association nor the management company to clear the snow and ice from the walkway.

Scrocca filed this action against the association and its management company, and the trial court granted the defendants summary judgment.

2. Under the condominium documents the duty to remove ice and snow was Scrocca’s.

We must look to the declaration of condominium to determine whether Scrocca or the association had the responsibility to clear the walkway of snow and ice because

[a] condominium association’s obligations and responsibilities toward the condominium property are dependent upon those allocated to it by the [Georgia Condominium Act, OCGA § 44-3-70 et seq.] and those stated in the condominium instruments, i.e., the declaration and bylaws, as decided by a majority of unit owners/association members____ A condominium association’s duty to its members . . . pursuant to OCGA § 51-3-1 [(duty of owner or occupier of land to invitee)] with regard to the common elements of a condominium property may be circumscribed by the terms of the condominium instruments/contract, and we must look to the terms of the contract, as well as the Act, in order to determine an association’s duties.

Bradford Square Condo. Assn. v. Miller, 258 Ga. App. 240, 244-246 (573 SE2d 405) (2002). The Amended and Restated Declaration of Condominium for Ashwood Condominium sets forth the parties’ duties. Section 10, entitled Maintenance Responsibility, provides in pertinent part as follows:

A. By the Owner. Each Owner shall have the obligation to maintain and keep in good repair all portions of his or her [228]*228Unit and all Limited Common Elements assigned to the Owner’s Unit, except any portion of the Limited Common Elements or Unit which is expressly made the maintenance obligation of the Association as set forth in subparagraph (B) below.

In addition, each Unit Owner shall have the responsibility:

(1) To keep in a neat, clean and sanitary condition any Limited Common Elements serving his or her Unit.
B. By the Association. The Association, as a Common Expense, shall maintain, keep in good repair, replace and in the Board’s discretion, improve or alter the “Area of Common Responsibility,” which includes the following:
(i) All general Common Elements, except those portions that are identified as Owner responsibility under subparagraph (A) above; and
(ii) The following portions of the Units or Limited Common Elements:
(e) concrete porches, steps, stoops and walkways in front of the Units, and handrails or railing serving those items in the front of the Unit. . . .

So the walkway on which Scrocca fell was a limited common element. Therefore Scrocca had the duty to “keep [the walkway] in a neat, clean and sanitary condition,” while the association had the duty to “maintain, keep in good repair, replace and . . . improve or alter” the walkway. We must construe the declaration of condominium to determine which party’s duty encompassed the responsibility to remove snow and ice.

As we have recently reiterated,

contract construction proceeds in a series of steps, moving from one to the next only if necessary. The construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous [229]*229language means and what the parties intended must be resolved by a jury. Because the first two of these steps involve questions of law, the trial court’s application of them is reviewed de novo on appeal.

Estate of Pitts v. City of Atlanta, 323 Ga. App. 70, 74 (4) (746 SE2d 698) (2013) (citation and punctuation omitted). We conclude that the contract is ambiguous in some respect; the contract fails to specifically delegate responsibilities arising from the presence of ice or snow. In other words, neither provision regarding duties relating to the walkway unambiguously includes snow and ice. Thus we must applythe rules and canons of contract construction. See OCGA § 13-2-2.

When courts construe contracts, the primary purpose is ascertaining the parties’ intent:

[C]ourts should ascertain the parties’ intent after considering the whole agreement and interpret each of the provisions so as to harmonize with the others.

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Bluebook (online)
756 S.E.2d 308, 326 Ga. App. 226, 2014 Fulton County D. Rep. 625, 2014 WL 961056, 2014 Ga. App. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scrocca-v-ashwood-condominium-assn-gactapp-2014.