Barksdale v. Nuwar

• Decision Date: 04 March 1992
• Docket Number: No. A91A2071,A91A2071
• Parties: BARKSDALE v. NUWAR.
• Court: Georgia Court of Appeals

Page 546

416 S.E.2d 546

203 Ga.App. 184

BARKSDALE v. NUWAR.

No. A91A2071.

Court of Appeals of Georgia.

March 4, 1992.

Lokey & Bowden, G. Melton Mobley, Atlanta, for appellant.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Eric D. Miller, Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Atlanta, for appellee.

BEASLEY, Judge.

While employed by a catering company to work at a social function at Nuwar's home, Barksdale was injured when a patio deck on which he was standing pulled away from the house and collapsed to the ground. He sued the contractors who built the deck and Nuwar for his injuries. He appeals the grant of summary judgment in favor of Nuwar.

In support of his summary judgment motion, Nuwar averred that he had no training or information concerning the construction of a deck; that he had inspected the deck prior to accepting the house which had been built for him, and that it "appeared to be well constructed and sound." He "noticed nothing wrong with it." After its collapse, the deck was inspected by the chief building inspector for Fulton County, who determined that it had not been constructed in conformity with building code requirements and that its collapse was due to faulty construction. He conceded that "it would appear to the average untrained eye to be an acceptable deck." It was his opinion that, had the deck been constructed in conformity with building code requirements, it would have been capable of simultaneously holding 110 people. Plaintiff deposed that approximately 25 to 30 people and some lightweight outdoor furniture, a table, and party supplies, were on the deck when it collapsed, and that the maximum number of people at any one time was 40.

Since plaintiff entered the premises for purposes connected with the business of the homeowner, he occupied the status of invitee. As to such, the owner has a duty to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1; Abney v. London Iron, etc., Co., 152 Ga.App. 238(1)(g), 262 S.E.2d 505 (1979), aff'd, 245 Ga. 759, 267 S.E.2d 214 (1980). This includes "a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises." Begin v. Ga. Championship Wrestling, 172 Ga.App. 293, 294, 322 S.E.2d 737 (1984), citing Prosser, Law of Torts (4th ed.) 393 § 61. The true ground of liability in such a relationship is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. Pound v. Augusta Nat., 158 Ga.App. 166, 167, 279 S.E.2d 342 (1981).

Nuwar had no actual knowledge of the construction defect, and he established a lack of actionable constructive knowledge by demonstrating that he was incapable of discovering it by means of reasonable inspection. Although plaintiff argues that defendant should have had the deck thoroughly inspected by competent professionals prior to its use in accommodating a large number of people, " '(a) landowner is not an insurer of an...