Soto v. Roswell Townhomes, Inc.

Court of Appeals of Georgia

Soto v. Roswell Townhomes, Inc.

358 S.E.2d 670, 183 Ga. App. 286, 1987 Ga. App. LEXIS 1954

CourtCourt of Appeals of Georgia

DecidedJune 15, 1987

Docket74118

StatusPublished

Cited by25 cases

This text of 358 S.E.2d 670 (Soto v. Roswell Townhomes, Inc.) 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

Soto v. Roswell Townhomes, Inc., 358 S.E.2d 670, 183 Ga. App. 286, 1987 Ga. App. LEXIS 1954 (Ga. Ct. App. 1987).

Pincite

Opinions

Carley, Judge.

Appellant-plaintiff filed suit, seeking to recover for both the personal injuries and the property damage that she had allegedly sustained as the result of an influx of mud, silt, and surface water onto her property. That influx was the alleged result of construction and development activities which were being carried out by appellee-de-fendants on the property which adjoined appellant’s. Appellees answered appellant’s complaint and the case proceeded to discovery.

In appellant’s deposition, she testified to the following: She had first noticed the influx of mud, silt, and surface water in May of 1984 and had called appellee-American Investment Management Corporation to complain. In response, Mr. Gregory Smith, who is a vice-president of two of the appellees, came to her house and assured her that “they were going to stop all the drainage and clean up everything.” Appellant again complained in July of 1984 and Mr. Smith again came to her home to investigate. According to appellant, Mr. Smith “came by the screen and he motioned me to come out. And I says, [287]*287No, there is all this mud. He says, That’s all right, come slowly. So he showed me they had a camera, and I says, All right.” Appellant exited her house and walked around the yard with Mr. Smith, showing him the mud that was on her property. Immediately thereafter, as she was standing outside the door to her house and talking with Mr. Smith, appellant slipped on the mud and fell. As the result of that fall, appellant sustained the personal injuries for which she sought to recover damages in this action.

Appellees moved for summary judgment as to appellant’s personal injury claim and that motion was granted. Appellant appeals from the order of the trial court granting partial summary judgment in favor of all appellees.

Construing the evidence of record in this case most favorably for appellant, a potentially dangerous situation, in the form of an accumulation of mud, was created by appellees. The law imposes upon one who has created a dangerous situation the “duty to do something about it so as to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights and in the exercise of ordinary care for their own safety may be injured thereby. . . . [T]he one creating the same is under a duty to eliminate the danger or give warning to others of its presence.” Hardy v. Brooks, 103 Ga. App. 124, 126-127 (2) (118 SE2d 492) (1961). The potentially dangerous situation at issue in this case was created on appellant’s own property. Prior to her fall, appellant had actual knowledge of the existence of the mud on her property and had vigorously complained of its presence. “[T]he duty to warn extends only to latent dangers — not those which are open and obvious. [Cit.]” Laite v. Baxter, 126 Ga. App. 743, 748 (2) (191 SE2d 531) (1972). Appellant contends that, although she was well aware of the existence of the mud on her property, she was not fully aware of the extent of its slipperiness. “While, ordinarily, knowledge of a defect is not necessarily knowledge of danger inherent in the defect ([cit.]), we think that knowledge of [the presence of mud] is obviously knowledge of probable danger of slipping when walking therein].” Wade v. Roberts, 118 Ga. App. 284, 287 (163 SE2d 343) (1968). Thus, notwithstanding their creation of the potentially dangerous situation, appellees had no duty to warn appellant that, if she walked in those areas of her property where the mud had accumulated, there was a probable danger of slipping and that she should guard against that danger in the event that she did walk in those areas. “There is no duty to warn of the obvious, or of that which the plaintiff already knew or should have known. [Cits.] That [appellant] was beckoned by [Mr. Smith] to follow him [outside] does not alter the rule. ‘A person cannot undertake to do an obviously dangerous thing, even though directed by another . . . without assuming the risks incident thereto, and without himself be[288]*288ing guilty of such lack of due care for his own safety as to bar him from recovery if he is injured. . . [Cit.]” Roberts v. Bradley, 114 Ga. App. 262-263 (150 SE2d 720) (1966).

“As a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial before a jury. [Cits.] However, where the facts conclusively show by plain, palpable and undisputed evidence that the defendant was not at fault . . . , such case properly may be resolved as a matter of law through the vehicle of summary judgment. [Cits.]” Fort v. Boone, 166 Ga. App. 290, 291-292 (304 SE2d 465) (1983). After reviewing the record, we find that this case is one which is to be included among such negligence cases as may be resolved by summary adjudication. The evidence shows that the muddy condition and the danger that it presented were obvious to anyone who encountered it and that appellant was not required to traverse the muddy areas of her property. Compare Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985). Under the circumstances, appellees breached no duty owed to appellant to warn her of physical danger and, assuming that her fall was not a legal accident occurring through the fault of no one, “a finding is demanded that [her] fall resulted from a defective and unsafe condition of the premises of which she was aware; and [she] is therefore barred from recovery by reason of her failure to exercise ordinary care for her own safety.” Taylor v. Boyce, 105 Ga. App. 434-435 (2) (124. SE2d 647) (1962). See also Wade v. Roberts, supra. The trial court correctly ruled and the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Sognier and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., Pope and Ben-ham, JJ., dissent.

Free access — add to your briefcase to read the full text and ask questions with AI

Carley, Judge.

Appellant-plaintiff filed suit, seeking to recover for both the personal injuries and the property damage that she had allegedly sustained as the result of an influx of mud, silt, and surface water onto her property. That influx was the alleged result of construction and development activities which were being carried out by appellee-de-fendants on the property which adjoined appellant’s. Appellees answered appellant’s complaint and the case proceeded to discovery.

In appellant’s deposition, she testified to the following: She had first noticed the influx of mud, silt, and surface water in May of 1984 and had called appellee-American Investment Management Corporation to complain. In response, Mr. Gregory Smith, who is a vice-president of two of the appellees, came to her house and assured her that “they were going to stop all the drainage and clean up everything.” Appellant again complained in July of 1984 and Mr. Smith again came to her home to investigate. According to appellant, Mr. Smith “came by the screen and he motioned me to come out. And I says, [287]*287No, there is all this mud. He says, That’s all right, come slowly. So he showed me they had a camera, and I says, All right.” Appellant exited her house and walked around the yard with Mr. Smith, showing him the mud that was on her property. Immediately thereafter, as she was standing outside the door to her house and talking with Mr. Smith, appellant slipped on the mud and fell. As the result of that fall, appellant sustained the personal injuries for which she sought to recover damages in this action.

Appellees moved for summary judgment as to appellant’s personal injury claim and that motion was granted. Appellant appeals from the order of the trial court granting partial summary judgment in favor of all appellees.

Construing the evidence of record in this case most favorably for appellant, a potentially dangerous situation, in the form of an accumulation of mud, was created by appellees. The law imposes upon one who has created a dangerous situation the “duty to do something about it so as to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights and in the exercise of ordinary care for their own safety may be injured thereby. . . . [T]he one creating the same is under a duty to eliminate the danger or give warning to others of its presence.” Hardy v. Brooks, 103 Ga. App. 124, 126-127 (2) (118 SE2d 492) (1961). The potentially dangerous situation at issue in this case was created on appellant’s own property. Prior to her fall, appellant had actual knowledge of the existence of the mud on her property and had vigorously complained of its presence. “[T]he duty to warn extends only to latent dangers — not those which are open and obvious. [Cit.]” Laite v. Baxter, 126 Ga. App. 743, 748 (2) (191 SE2d 531) (1972). Appellant contends that, although she was well aware of the existence of the mud on her property, she was not fully aware of the extent of its slipperiness. “While, ordinarily, knowledge of a defect is not necessarily knowledge of danger inherent in the defect ([cit.]), we think that knowledge of [the presence of mud] is obviously knowledge of probable danger of slipping when walking therein].” Wade v. Roberts, 118 Ga. App. 284, 287 (163 SE2d 343) (1968). Thus, notwithstanding their creation of the potentially dangerous situation, appellees had no duty to warn appellant that, if she walked in those areas of her property where the mud had accumulated, there was a probable danger of slipping and that she should guard against that danger in the event that she did walk in those areas. “There is no duty to warn of the obvious, or of that which the plaintiff already knew or should have known. [Cits.] That [appellant] was beckoned by [Mr. Smith] to follow him [outside] does not alter the rule. ‘A person cannot undertake to do an obviously dangerous thing, even though directed by another . . . without assuming the risks incident thereto, and without himself be[288]*288ing guilty of such lack of due care for his own safety as to bar him from recovery if he is injured. . . [Cit.]” Roberts v. Bradley, 114 Ga. App. 262-263 (150 SE2d 720) (1966).

“As a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial before a jury. [Cits.] However, where the facts conclusively show by plain, palpable and undisputed evidence that the defendant was not at fault . . . , such case properly may be resolved as a matter of law through the vehicle of summary judgment. [Cits.]” Fort v. Boone, 166 Ga. App. 290, 291-292 (304 SE2d 465) (1983). After reviewing the record, we find that this case is one which is to be included among such negligence cases as may be resolved by summary adjudication. The evidence shows that the muddy condition and the danger that it presented were obvious to anyone who encountered it and that appellant was not required to traverse the muddy areas of her property. Compare Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985). Under the circumstances, appellees breached no duty owed to appellant to warn her of physical danger and, assuming that her fall was not a legal accident occurring through the fault of no one, “a finding is demanded that [her] fall resulted from a defective and unsafe condition of the premises of which she was aware; and [she] is therefore barred from recovery by reason of her failure to exercise ordinary care for her own safety.” Taylor v. Boyce, 105 Ga. App. 434-435 (2) (124. SE2d 647) (1962). See also Wade v. Roberts, supra. The trial court correctly ruled and the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Sognier and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., Pope and Ben-ham, JJ., dissent.

Cite This Page — Counsel Stack

Bluebook (online)

358 S.E.2d 670, 183 Ga. App. 286, 1987 Ga. App. LEXIS 1954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-roswell-townhomes-inc-gactapp-1987.

Opinions

Related

Cite This Page — Counsel Stack