Barclay v. Stephenson
| Decision Date | 09 June 2016 |
| Docket Number | A16A0318,A16A0319,A16A0320,A16A0321 |
| Citation | 787 S.E.2d 322,337 Ga.App. 365 |
| Parties | Barclay v. Stephenson et al. Johnson et al. v. Government Employees Insurance Company. Stephenson et al. v. Government Employees Insurance Company. Johnson et al. v. Stephenson et al. |
| Court | Georgia Court of Appeals |
Fain, Major & Brennan, Thomas Eugene Brennan, Richard Ward Brown, Atlanta, for Barclay.
Austin Law Group, Laura E. Austin, Woodstock, for Stephenson et al.
Hugh M. Dorsey III, Carlock, Copeland & Stair, L. Elizabeth Albright, Frederick M. Valz III, Melissa L. Bailey, for Johnson et al.
Cruser & Mitchell, J. Robb Cruser, Craig P. Terrett, for Government Employees Insurance Company.
Phipps
, Presiding Judge.
Thomas Stephenson and his wife sued Mary Barclay, Carol Johnson, and Thomas Johnson for damages sustained when Stephenson fell on property belonging to Barclay and occupied by the Johnsons.1 Barclay's umbrella liability insurance carrier, Government Employees Insurance Company (“GEICO”), later filed a declaratory judgment action, seeking a determination of coverage. Following discovery, Barclay and the Johnsons moved for summary judgment in the personal injury suit, and GEICO sought summary judgment in the declaratory judgment action. The trial court denied the motions filed by Barclay and the Johnsons, but granted GEICO's motion. These appeals followed. For reasons that follow, we reverse the denials of summary judgment in the personal injury action and affirm the grant of summary judgment to GEICO.
Summary judgment is appropriate when “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.”2 We review a trial court's summary judgment ruling de novo, construing the evidence and all reasonable inferences favorably to the nonmovant.3
So viewed, the record shows that the Johnsons leased a home from Barclay on Kensington Drive in Marietta. The Johnsons also owned a house, which they rented to Stephenson and his wife. Occasionally, Stephenson performed work for the Johnsons in exchange for a credit against his rent payment.
In August 2008, Carol Johnson asked Stephenson to remove a chainsaw that had become pinned in a tree under a partially-cut limb at the Kensington Drive property. Stephenson agreed and, on September 6, 2008, arrived at the property with an extension ladder. Thomas Johnson showed the tree to Stephenson, who asserted that he needed to cut the limb to remove the chainsaw. Stephenson erected the ladder, tethered it to the tree with a rope, and began cutting the limb with a pole pruner. The work required him to move and re-tether the ladder several times to reach different parts of the tree.
Stephenson's pole pruner stopped working at some point, and he briefly left the Kensington Drive property to repair it. During the 20 to 30 minutes he was away, the Johnsons removed cut branches and debris from under the tree. When Stephenson returned, he quickly realized that he needed to move the ladder again. According to Thomas Johnson, Stephenson climbed the ladder, untied it from the tree, and began “jumping it” to the next place he planned to cut. Stephenson denied “jumping” the ladder, which he characterized as “an extremely dangerous thing to do.” Without dispute, however, he untethered the ladder and it collapsed. Stephenson hung briefly from the tree, then fell to the ground, injuring his ankle.
On August 27, 2010, Stephenson and his wife sued the Johnsons and Barclay for over $1,000,000 in damages. Stephenson claimed that the Johnsons had failed to keep the Kensington Drive property reasonably safe and had caused his fall. He also alleged a premises liability claim against Barclay and asserted that she had negligently entrusted the property to the Johnsons. In addition, Stephenson's wife asserted a loss of consortium claim against Barclay and the Johnsons. While the personal injury suit was pending, GEICO filed a declaratory judgment action against all parties, seeking resolution of coverage issues relating to the umbrella liability insurance policy issued to Barclay.
Barclay and the Johnsons subsequently filed motions for summary judgment in the personal injury action, and GEICO moved for summary judgment in the declaratory judgment suit. Although the trial court denied the Barclay/Johnson motions, it issued certificates of immediate review, and we granted their requests for interlocutory appeal. Barclay's appeal has been docketed as Case No. A16A0318, and the Johnsons' appeal has been docketed as Case No. A16A0321. The trial court also awarded summary judgment to GEICO in the declaratory judgment action, generating two additional appeals. In Case No. A16A0319, the Johnsons challenge the grant of summary judgment to GEICO, and the Stephensons appeal the same ruling in Case No. A16A0320.
1. The Johnsons argue that the trial court erred in denying their motion for summary judgment as to the Stephensons' personal injury claims. We agree.
“Where 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.”5 The true basis for liability is the owner or occupier's superior knowledge of a perilous condition on the property.6 Recovery may result when the condition is known to the owner or occupier, but not the person injured.7 Thus, “[w]here the uncontroverted evidence demonstrates that the invitee had knowledge of the dangerous condition equal to that of the premises [occupier], there can be no recovery by the invitee for injuries resulting from the dangerous condition.”8
Stephenson was injured when the extension ladder he was using collapsed, causing him to fall. The injury-causing condition, therefore, involved the ladder. Without dispute, however, Stephenson brought the ladder onto the Kensington Drive property and erected it. The evidence further shows that he had previously worked with this ladder; had set up, climbed, and readjusted the ladder several times without incident before it collapsed; and was familiar with its use. Stephenson had at least equal—if not greater—knowledge of the ladder and its use than the Johnsons.9
Nevertheless, Stephenson and his wife contend that questions of fact remain as to the Johnsons' liability because the Johnsons must have bumped or hit the ladder when Stephenson left to fix the pole pruner, destabilizing it and ultimately causing it to collapse. According to the Stephensons, “there is no other rational explanation for the ladder collapsing.”
The Johnsons, however, flatly denied moving, touching, or otherwise disturbing the ladder. They admitted removing branches and debris from the ground under the tree, but Thomas Johnson stated that he did not “go over by the ladder.” And Carol Johnson testified that the ladder “wasn't moved while [Stephenson] was gone.” Stephenson and his wife have pointed to no evidence controverting the Johnsons' testimony. Moreover, although Stephenson asserted that “[i]n [his] judgment, the base of the ladder had been accidentally bumped,” he did not see anyone touch the ladder, it “looked intact” before it collapsed, and it did not appear to have been moved before he climbed it the final time.
“[G]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”10 Thus, “[w]here a plaintiff's proof of causation in a negligence case is based on mere possibilities, or the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it is the duty of the trial court to grant summary judgment for the defendant.”11 Stephenson's “feelings” and “viewpoint” about how the ladder collapsed do not raise factual questions as to causation. And his speculation that the Johnsons were intoxicated when he fell proves nothing.
Stephenson and his wife offered no evidence that the Johnsons disturbed the ladder before it collapsed, and the Johnsons unequivocally denied touching it. The evidence further shows that Stephenson had moved and repositioned the ladder multiple times that day. To conclude, in the face of such evidence, that the Johnsons caused the ladder to fall would be mere conjecture. The trial court, therefore, erred in denying the Johnsons' motion for summary judgment on Stephenson's premises liability claim,12 as well as his wife's derivative claim for loss of consortium.13
2. Barclay argues that she is entitled to summary judgment because no questions of material fact remain as to her liability. As noted above, the claims against Barclay rest on theories of premises liability and negligent entrustment. Stephenson and his wife allege that Barclay failed to keep her property in repair and negligently entrusted it to the Johnsons, who were known alcoholics. Neither theory supports recovery here.
(a) Premises liability . Barclay did not live on the Kensington Drive property. She leased it to the Johnsons, who were responsible for the premises. Given these circumstances, Barclay's duties are controlled by OCGA § 44–7–14
, which governs tort liability for an out-of-possession landlord.14 Under that Code section:
Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.15
Barclay, therefore, may be held liable only for damages caused by “failure to repair the premises or faulty construction of...
To continue reading
Request your trial
-
Mehic v. Allstate Prop. & Cas. Ins. Co.
...means that the condition precedent to suit—that Mehic comply with all terms of the Policy—is not satisfied. See Barclay v. Stephenson , 337 Ga.App. 365, 787 S.E.2d 322, 329 (2016) (stating that a notice provision expressly made a condition to coverage must be satisfied and finding that "[a]......
-
United Specialty Ins. Co. v. Cardona-Rodriguez
...to determine "whether the policy provided coverage under the circumstances"); Barclay v. Stephenson , 337 G(a). App. 365, 371 (3), (787 S.E.2d 322) (2016) (declaratory relief appropriate where there was no evidence that insurer denied coverage; on the contrary, it stated in its petition for......
-
Lakeshore Contracting, LLC v. Lopez-Hernandez
...or possibility are not sufficient to create an inference of fact for consideration on summary judgment." Barclay v. Stephenson , 337 Ga. App. 365, 368 (1), 787 S.E.2d 322 (2016) (citation, punctuation, and footnote omitted). Thus, where a plaintiff’s proof that the defendant breached a lega......
-
Lakeshore Contracting, LLC v. Lopez-Hernandez
...or possibility are not sufficient to create even an inference of fact for consideration on summary judgment." Barclay v. Stephenson , 337 Ga. App. 365, 368 (1), 787 S.E.2d 322 (2016) (citation and punctuation omitted). Thus, where a plaintiff's proof that the 351 Ga.App. 236 defendant breac......