FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 2, 2012
In the Court of Appeals of Georgia A12A1295. THOMAS v. MCMILLAN.
BOGGS, Judge.
In this premises liability case arising out of a deck collapse, Theodore Thomas
appeals from the trial court’s grant of summary judgment to Thomas McMillan, the
homeowner. Thomas contends that genuine issues of fact exist as to whether
McMillan had superior knowledge of defects in the deck. We disagree and therefore
affirm.
Summary judgment is appropriate when there is no genuine issue as to any
material fact and 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 apply a
de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Hood v. Todd,
287 Ga. 164, 165 (695 SE2d 31) (2010).
So viewed, the record shows that at the time of the deck collapse on November
18, 2007, Thomas was checking McMillan’s home “inside and outside” while
McMillan was out of town. While Thomas was standing on the deck, he heard a
crack, the deck dropped halfway to the ground and paused, before falling completely
to the ground. Thomas was “not sure” from which direction the cracking sound
originated, and he did not look at the deck after it fell to determine how or why the
deck fell. At no time before the deck collapse did Thomas notice anything about the
deck that caused him concern. A couple of days after the accident, McMillan told
Thomas he did not understand why it fell, noting that he would sleep on the deck two
or three times a week. Thomas testified that he had no reason to believe that
McMillan knew anything was wrong with the deck.
Before purchasing the new home, McMillan reviewed a home inspection report
prepared on his behalf dated June 2, 2007. One section of the report was labeled
“Deck/Porch,” and the inspector indicated that the “overall condition” of the deck
was “Adequate,” as opposed to “Fair,” “Poor,” “Substandard Installation,
Workmanship,” or “Hazardous Condition.” Additionally, the inspector left blank two
2 boxes at the top of the page labeled “Structural Evaluation and Repairs
Recommended” and “Updating and/or Replacing Recommended.” In a subsection
titled “Ledger” of the “Deck/Porch” section of the report, the inspector noted that
bolting and flashing were not visible and were recommended. Under the
“observation” subsection of “Ledger,” the inspector did not circle any of the
following options “Visible Rot / Susceptible Water Infiltration / Siding Damaged /
Not Properly Secured / Improperly Secured to Cantilevered Joist.” In the “Additional
Comments” section at the end of the “Deck” section of the report, the inspector
handwrote: “Flashing & bolting recommended at ledger.”
Before Thomas’ injury, McMillan provided a copy of the inspection report to
Shepherd and Young Construction, LLC, the entity from which McMillan purchased
the new home. The home was built by another entity, PZDM, and the plans for the
home did not include a deck. William Shepherd, a principal of Shepherd and Young
Construction, testified that he hired a framer, James Hall,1 to add a deck to the home
to help it sell based upon the recommendation of a realtor. The handwritten punch list
at the end of McMillan’s inspection report that was provided to Shepherd and Young
1 Shepherd had previously used Hall to build a free-standing garage at his personal home.
3 did not include any mention of bolting of the ledger for the deck. With regard to the
deck it included only “[r]eplace damaged picket at left side wood railing of rear deck
#24 from entry door” and “[p]roperly attach wood railing at bottom section of rear
wood deck to wood post.”
Shepherd admitted in his deposition that he had no training in the construction
business and that he had no knowledge of building codes applicable to decks.
According to Shepherd, the framer who had constructed the deck looked at it after the
collapse and “didn’t say a whole lot” other than “something to the effect that some
of it wasn’t done the way he intended . . . he talked about the post, some cement being
in the post on the ground level . . . he said the part where it was attached to the house
was done right.” When asked whether he knew why the deck collapsed, Shepherd
testified, “Not really. Just something was wrong.” When asked whether he believed
the deck was properly attached to the house, Shepherd replied, “Let’s see, it was up
there - - no. ‘Cause three months it fell. I’ll say, you asked me was it attached right,
I’m not sure about which part had to do with the falling, you know, what I mean. You
said attached to the house, it could have been ground level. . . .” Finally, Shepherd
testified that McMillan told him after the accident that he “knew something wasn’t
right about the deck.”
4 Thomas subsequently filed a complaint against McMillan, Shepherd and
Young Construction, LLC, and Hall for his injuries. McMillan moved for summary
judgment in his favor, which the trial court granted based upon its conclusion that
Thomas failed to show “McMillan’s superior knowledge of a defect causing the harm
to [Thomas].” The evidence before the trial court includes only written discovery
responses and the depositions of Shepherd, Dan Young (the other principal of
Shepherd and Young, who provided no additional information about the deck), and
Thomas. It does not include any depositions or affidavits from McMillan, Hall (the
framer who constructed the deck), the inspector who prepared the inspection report
for McMillan, or an expert.
On appeal, Thomas contends that the inspection report, Shepherd’s testimony
about the cause of the collapse, and McMillan’s admission that he “knew something
wasn’t right about the deck” create genuine issues of fact with regard to McMillan’s
superior knowledge of the defect. We disagree.
In premises liability cases, “to survive a motion for summary judgment, a
plaintiff must come forward with evidence that, viewed in the most favorable light,
would enable a rational trier of fact to find that the defendant had actual or
constructive knowledge of the hazard.” (Citations and punctuation omitted.) Landings
5 Assn. v. Williams, 291 Ga. 397 (728 SE2d 577) (2012). Additionally, “[t]he true
ground of liability is the proprietor’s superior knowledge of the perilous
instrumentality and the danger therefrom to persons going upon the property. It is
when the perilous instrumentality is known to the owner or occupant and not known
to the person injured that a recovery is permitted.” (Citations and punctuation
omitted.) Id.
In this case, Thomas cannot meet his burden of proving McMillan’s actual or
constructive knowledge of the defect that caused Thomas’ injury. See Silman v.
Assoc. Bellmease, 294 Ga. App. 764, 766 (2) (669 SE2d 663) (2008); Wingo v.
Harrison, 268 Ga. App. 156, 160 (601 SE2d 507) (2004). First, the record before us
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FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 2, 2012
In the Court of Appeals of Georgia A12A1295. THOMAS v. MCMILLAN.
BOGGS, Judge.
In this premises liability case arising out of a deck collapse, Theodore Thomas
appeals from the trial court’s grant of summary judgment to Thomas McMillan, the
homeowner. Thomas contends that genuine issues of fact exist as to whether
McMillan had superior knowledge of defects in the deck. We disagree and therefore
affirm.
Summary judgment is appropriate when there is no genuine issue as to any
material fact and 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 apply a
de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Hood v. Todd,
287 Ga. 164, 165 (695 SE2d 31) (2010).
So viewed, the record shows that at the time of the deck collapse on November
18, 2007, Thomas was checking McMillan’s home “inside and outside” while
McMillan was out of town. While Thomas was standing on the deck, he heard a
crack, the deck dropped halfway to the ground and paused, before falling completely
to the ground. Thomas was “not sure” from which direction the cracking sound
originated, and he did not look at the deck after it fell to determine how or why the
deck fell. At no time before the deck collapse did Thomas notice anything about the
deck that caused him concern. A couple of days after the accident, McMillan told
Thomas he did not understand why it fell, noting that he would sleep on the deck two
or three times a week. Thomas testified that he had no reason to believe that
McMillan knew anything was wrong with the deck.
Before purchasing the new home, McMillan reviewed a home inspection report
prepared on his behalf dated June 2, 2007. One section of the report was labeled
“Deck/Porch,” and the inspector indicated that the “overall condition” of the deck
was “Adequate,” as opposed to “Fair,” “Poor,” “Substandard Installation,
Workmanship,” or “Hazardous Condition.” Additionally, the inspector left blank two
2 boxes at the top of the page labeled “Structural Evaluation and Repairs
Recommended” and “Updating and/or Replacing Recommended.” In a subsection
titled “Ledger” of the “Deck/Porch” section of the report, the inspector noted that
bolting and flashing were not visible and were recommended. Under the
“observation” subsection of “Ledger,” the inspector did not circle any of the
following options “Visible Rot / Susceptible Water Infiltration / Siding Damaged /
Not Properly Secured / Improperly Secured to Cantilevered Joist.” In the “Additional
Comments” section at the end of the “Deck” section of the report, the inspector
handwrote: “Flashing & bolting recommended at ledger.”
Before Thomas’ injury, McMillan provided a copy of the inspection report to
Shepherd and Young Construction, LLC, the entity from which McMillan purchased
the new home. The home was built by another entity, PZDM, and the plans for the
home did not include a deck. William Shepherd, a principal of Shepherd and Young
Construction, testified that he hired a framer, James Hall,1 to add a deck to the home
to help it sell based upon the recommendation of a realtor. The handwritten punch list
at the end of McMillan’s inspection report that was provided to Shepherd and Young
1 Shepherd had previously used Hall to build a free-standing garage at his personal home.
3 did not include any mention of bolting of the ledger for the deck. With regard to the
deck it included only “[r]eplace damaged picket at left side wood railing of rear deck
#24 from entry door” and “[p]roperly attach wood railing at bottom section of rear
wood deck to wood post.”
Shepherd admitted in his deposition that he had no training in the construction
business and that he had no knowledge of building codes applicable to decks.
According to Shepherd, the framer who had constructed the deck looked at it after the
collapse and “didn’t say a whole lot” other than “something to the effect that some
of it wasn’t done the way he intended . . . he talked about the post, some cement being
in the post on the ground level . . . he said the part where it was attached to the house
was done right.” When asked whether he knew why the deck collapsed, Shepherd
testified, “Not really. Just something was wrong.” When asked whether he believed
the deck was properly attached to the house, Shepherd replied, “Let’s see, it was up
there - - no. ‘Cause three months it fell. I’ll say, you asked me was it attached right,
I’m not sure about which part had to do with the falling, you know, what I mean. You
said attached to the house, it could have been ground level. . . .” Finally, Shepherd
testified that McMillan told him after the accident that he “knew something wasn’t
right about the deck.”
4 Thomas subsequently filed a complaint against McMillan, Shepherd and
Young Construction, LLC, and Hall for his injuries. McMillan moved for summary
judgment in his favor, which the trial court granted based upon its conclusion that
Thomas failed to show “McMillan’s superior knowledge of a defect causing the harm
to [Thomas].” The evidence before the trial court includes only written discovery
responses and the depositions of Shepherd, Dan Young (the other principal of
Shepherd and Young, who provided no additional information about the deck), and
Thomas. It does not include any depositions or affidavits from McMillan, Hall (the
framer who constructed the deck), the inspector who prepared the inspection report
for McMillan, or an expert.
On appeal, Thomas contends that the inspection report, Shepherd’s testimony
about the cause of the collapse, and McMillan’s admission that he “knew something
wasn’t right about the deck” create genuine issues of fact with regard to McMillan’s
superior knowledge of the defect. We disagree.
In premises liability cases, “to survive a motion for summary judgment, a
plaintiff must come forward with evidence that, viewed in the most favorable light,
would enable a rational trier of fact to find that the defendant had actual or
constructive knowledge of the hazard.” (Citations and punctuation omitted.) Landings
5 Assn. v. Williams, 291 Ga. 397 (728 SE2d 577) (2012). Additionally, “[t]he true
ground of liability is the proprietor’s superior knowledge of the perilous
instrumentality and the danger therefrom to persons going upon the property. It is
when the perilous instrumentality is known to the owner or occupant and not known
to the person injured that a recovery is permitted.” (Citations and punctuation
omitted.) Id.
In this case, Thomas cannot meet his burden of proving McMillan’s actual or
constructive knowledge of the defect that caused Thomas’ injury. See Silman v.
Assoc. Bellmease, 294 Ga. App. 764, 766 (2) (669 SE2d 663) (2008); Wingo v.
Harrison, 268 Ga. App. 156, 160 (601 SE2d 507) (2004). First, the record before us
does not adequately establish that the deck in fact had inadequate bolting or flashing
that could have caused the deck to collapse. Second, the inspection report did not
provide McMillan with actual or constructive notice of a dangerous defect in the
deck. The inspector listed the deck’s overall condition as adequate, failed to mark two
boxes recommending “structural evaluation and repairs” or “updating and/or
replacing,” and the inspector did not circle listed options of “not properly secured”
or “improperly secured to cantilevered joist.” The section regarding the ledger merely
noted that bolting and flashing were not visible and were recommended. And while
6 the comments section in the deck portion of the report recommended bolting and
flashing at the ledger, the report did not explain that their absence would pose a safety
hazard. Finally, McMillan’s alleged admission that he “knew something wasn’t right
about the deck” is too general to establish that McMillan had superior knowledge of
the unspecified defect in the deck that caused Thomas’ injury. See Dunaway v.
Kaylor, 127 Ga. App. 586, 587 (194 SE2d 264) (1972) (father’s admission that he
knew he was going to have problems with his son no basis for inference of previous
knowledge of violent propensities; any such inference “pure speculation and
conjecture”). The trial court therefore did not err by granting summary judgment to
McMillan.
Judgment affirmed. Doyle, P. J. and Andrews, J., concur.