Brazier v. Phoenix Group Management

• Decision Date: 02 June 2006
• Docket Number: No. A06A0533.,A06A0533.
• Citation: 280 Ga. App. 67,633 S.E.2d 354
• Parties: BRAZIER et al. v. PHOENIX GROUP MANAGEMENT et al.
• Court: Georgia Court of Appeals

280 Ga. App. 67

Page 354

633 S.E.2d 354

BRAZIER et al. v. PHOENIX GROUP MANAGEMENT et al.

No. A06A0533.

Court of Appeals of Georgia.

June 2, 2006.

Reconsideration denied June 22, 2006.

James A. Goldstein, Goldstein & Hayes, P.C., Benjamin M. Byrd, Atlanta, for Appellant.

Michael C. Kendall, Conoscienti, Storm & Kendall, Decatur, Derek W. Johanson, Weissman Nowack Curry & Wilco, P.C., Laura French, Talley & Sharp, Conyers, for Appellee.

ELLINGTON, Judge.

This is a wrongful death case arising from the drowning of the decedent, Stephanie Brazier, after she rescued her 13-year-old son from a lake near their home. Arturo Brazier and Linda Brazier Francis¹ (collectively, "Brazier") appeal from the trial court's grant of summary judgment to Phoenix Group Management, G.P., and its partners, Alton Housworth, Jr., Bruce Mundy, Joseph R. Singleton, Gerald Sheppard, and Robert E. Talley (collectively, "Phoenix"). Brazier contends that summary judgment was improper because a jury question exists as to whether Phoenix, the developer of the property on which the lake was located, was negligent per se. He also argues that jury issues exist as to whether the decedent assumed the risk of drowning and whether her actions constituted contributory negligence. For the following reasons, we find summary judgment was proper and, therefore, affirm.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant." (Citations and punctuation omitted.) White v. Ga. Power Co., 265 Ga.App. 664, 664-665, 595 S.E.2d 353 (2004). So viewed, the record shows the following undisputed facts.

In 1996, Phoenix purchased several acres of property known as Southland Units 2 and 8 in Stone Mountain. A lake was located on part of the property; the lake had been there for at least 50 years, had been used for fishing, and had never been fenced.² Although the lake's water level varied when it collected storm water that drained off the surrounding properties, the lake always contained some water and never dried up. In October 1996, Phoenix entered into a sales contract with The Ryland Group ("Ryland") which provided that Phoenix would develop the property and subdivide it into individual lots. Ryland agreed to purchase the lots, upon which it planned to build homes for resale. During its development of the property, Phoenix repaired the lake's dam and constructed a spillway from the lake to allow excess water to drain off. DeKalb County officials approved Phoenix's construction plans, repeatedly inspected the construction during development, and concluded that the county's ordinances did not require a fence around the lake. After Phoenix subdivided the property, it filed a final plat with the county which showed that the property lines of the lots adjacent to the lake divided the lake among those lots. The final plat also contained a note that the "Lake and detention pond [are] to be owned & maintained by [the subdivision's] Homeowners Association." Two county officials certified that Phoenix had developed the property in compliance with the approved construction plans and with "DeKalb County Specifications and Standards."

Prior to the date of the decedent's drowning, May 21, 2000, Phoenix sold the lots to Ryland pursuant to their agreement; Ryland built homes on some of the lots and sold them to individual buyers. In May 2000, however, Ryland still held title to one lot on which a portion of the lake was located. There is no evidence that, on the date of the drowning, Phoenix owned or occupied the lake or any property surrounding the lake. In fact, Brazier has admitted that he does not have any deeds, contracts, or other documents to show that Phoenix "owned, operated, controlled, maintained, managed or held a possessory interest" in the lake or the surrounding property on May 21, 2000.³

The undisputed evidence further shows that, at the time of her death, the decedent had two children, a thirteen-year-old son and an eleven-year-old son. Although the 13-year-old boy was autistic and did not speak, he was not physically impaired and did not take any medication. He attended special classes at the local middle school. The family lived in a house that was adjacent to the subdivision, and they could see the lake from their backyard. The decedent knew that the lake was not surrounded by a fence and had told both of her sons that they were not allowed to go to the lake. There is no evidence that, prior to the decedent's drowning, either of the boys had ever been to the lake. The evidence showed, however, that the decedent frequently took her sons to a swimming pool, a local water park, and the beach. The 13-year-old boy also took swimming lessons at school, although it is unclear whether he knew how to swim.

On May 21, 2000, while the decedent was working on her computer, the 13-year-old boy went outside without her knowledge. When the decedent realized that the boy was gone, she and her younger son began to search for him. Shortly thereafter, the decedent saw the older boy standing in the lake and heard him yelling. There is no evidence that anyone gave the boy permission to go onto the property surrounding the lake or to go into the lake, and Brazier does not dispute that the boy was a trespasser.

The decedent went into the lake to get her son and pushed the boy to safety. The decedent, however, could not get out of the lake, so she sent her younger son to get help. The younger boy took his older brother home before seeking help from a nearby homeowner. By the time rescuers arrived, the decedent had drowned and could not be revived.

Brazier filed suit against Phoenix, Ryland, the subdivision's homeowners' association, the owners of the homes surrounding the lake, and other defendants.⁴ The original complaint was based upon ordinary negligence, but Brazier later amended his complaint to include a negligence per se claim against Phoenix, contending that Phoenix violated a county ordinance when it failed to erect and maintain a fence around the lake.⁵ The parties filed cross-motions for summary judgment.

In support of his motion for summary judgment on the issue of negligence per se, Brazier presented the affidavit and deposition testimony of an expert witness, Seymour Liebmann. Liebmann made measurements around the lake and the surrounding property in February 2004 which showed that the depth of the lake exceeded four feet and the slope of the banks was steeper than the maximum allowable ratio of one-and-one-half horizontal to one vertical. Liebmann opined that these measurements had not substantially changed since 1997 and, therefore, the DeKalb County Code required a four-foot fence around the lake on the date the decedent drowned in 2000.

In its motion for summary judgment, Phoenix argued that the Code did not require a fence around the lake. Phoenix presented the testimony of three current or former DeKalb County officials who had inspected and approved the construction of the subdivision, approved the final plats that had been filed with the county, and certified that the development complied with the Code. All three officials testified that the Code did not require a fence around the lake. Phoenix also argued that it was not liable because there was no evidence that it owned or occupied the lake or the surrounding property at the time of the decedent's death. In addition, Phoenix contended that the decedent and her son were trespassers (or, at most, licensees), to whom it could only be liable for wilful or wanton conduct, and that the lake was an open and obvious condition of which both the decedent and her son had actual knowledge. The trial court granted Phoenix's motion for summary judgment, and Brazier appeals.

1. Brazier contends that the trial court erred in granting summary judgment to Phoenix because jury issues existed on whether the county ordinance required that the lake have a fence around it and whether Phoenix was negligent per se for failing to erect a fence during its development of the property.⁶ Pretermitting whether the ordinance required a fence around the lake, however, we agree with the trial court's conclusion that Phoenix was entitled to summary judgment in this case.

(a) In order to demonstrate negligence per se based upon the defendant's violation of a county ordinance, the plaintiff must show that the victim fell within the class of persons the ordinance was intended to protect and that the injury complained of was the type of harm the ordinance was intended to prevent. Hubbard v. Dept. of Transp., 256 Ga.App. 342, 350(3), 568 S.E.2d 559 (2002). A showing of negligence per se, however, does not establish liability per se. Florence v. Knight, 217 Ga.App. 799, 800, 459 S.E.2d 436 (1995). "Breach of duty alone does not make a defendant liable in negligence. The rule remains that the true ground of liability is the superior knowledge of the [property owner or occupier] of the existence of a condition that may subject the invitee to an unreasonable risk of harm." (Citation, punctuation and footnote omitted; emphasis in original.) Britt v. Kelly & Picerne, Inc., 258 Ga.App. 843, 845, 575 S.E.2d 732 (2002). Therefore, even if Brazier could show that the ordinance applied to the lake in this case and that Phoenix was negligent per se for failing to erect a fence around the lake, he would still be unable to recover if the undisputed evidence showed that the lake was an open and obvious hazard of which the decedent and her 13-year-old son had equal knowledge. See Trulove v. Jones, 271 Ga. App. 681, 682(2), 610 S.E.2d 649 (2005) (even if a property owner was negligent per se based upon the violation of a building code, the injured licensee could not recover because she had equal knowledge of the dangerous condition); Yasinsac v. Colonial Oil...