Brown v. Dickerson

• Decision Date: 13 May 2019
• Docket Number: A19A1016
• Parties: BROWN v. DICKERSON.
• Court: Georgia Court of Appeals

350 Ga.App. 137

828 S.E.2d 376

BROWN

v.DICKERSON.

A19A1016

Court of Appeals of Georgia.

May 13, 2019

James William Scarbrough, Rachel E. Reed, Atlanta, for Appellant.

James Alexander Rice Jr., Andrew Joseph Brandt, Atlanta, for Appellee.

Barnes, Presiding Judge.

Janice Dickerson was injured when she tripped and fell down brick stairs in Charles Brown’s backyard. Dickerson sued Brown, alleging that she had tripped on an extension cord on the stairs and that he was liable for her injuries. Brown moved for summary judgment, contending that Dickerson was a licensee and had failed to come forward with any evidence of willful or wanton conduct.

The trial court denied Brown’s motion but granted him a certificate of immediate review. Following the grant of his application for interlocutory appeal, Brown appeals, contending that the trial court erred in denying his motion for summary judgment. Because there was no evidence that Brown placed the extension cord on the stairs or knew or had reason to know that the cord was there, the trial court erred in denying his motion for summary judgment, and we therefore reverse.

Summary judgment is appropriate if the pleadings and evidence "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." OCGA § 9-11-56 (c). A defendant can succeed on summary judgment

by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of [the] plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

Lau’s Corp. v. Haskins , 261 Ga. 491, 491, 405 S.E.2d 474 (1991). "On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party." (Punctuation and footnote omitted.) Smith v. Found , 343 Ga. App. 816, 817, 806 S.E.2d 287 (2017).

So viewed, the record reflects that on the date of the incident, Brown allowed his friend, Janice Rogers, to have a birthday party at his residence. Brown knew that Rogers wanted to sit outside on the back porch near his pool and listen to music with her friends. Brown’s backyard was tiered and included a set of brick stairs. Brown had owned the house for approximately 20 years, and the stairs were there when he purchased the residence.

Among other guests, Rogers invited her friend, Dickerson, to her birthday party.¹ When Dickerson arrived at Brown’s residence for the party, the weather was good and it was dark outside. Dickerson took a path to the back of Brown’s house and came to the brick stairs that would lead her to the pool area. According to Dickerson, although there were lights outside the house, the lighting conditions near the outside stairway were dim. As Dickerson descended the stairs, she look straight ahead and never looked down. Dickerson felt something hit her foot on one of the steps, causing her to trip and fall to the ground. As she was being carried into Brown’s house after the fall by other partygoers, Dickerson looked back at the stairs and saw an orange extension cord draped over three or four stairs in the area where she tripped. In her deposition, Dickerson testified that she did not see the extension cord before her fall and did not know who put the cord out or how long it had been there before she descended the stairway. She testified that the extension cord did not blend into the stairs but was obscured by the dim lighting.

Earlier on the day of the party, Brown had been doing yard work in his backyard with another person whom he had hired to help. Brown testified in his deposition that he used yard equipment that day, but that all of his equipment was gasoline operated, that he did not use an extension cord for the work, and that he did not place, leave, or see a cord on the stairs that day. Brown further testified that he departed from his residence before the party to run errands and did not return until after Dickerson had fallen. According to Brown, he walked through his backyard after he completed his yard work to make sure that everything was picked up, and when he left the property to run errands, no cord was present on the stairway. Brown testified that he owns a couple of orange extension cords but did not recall having ever placed one on the outside stairs since he moved into the house.

Brown testified that between five and ten guests were at his house on the night of the party. Dickerson testified that after she fell and was carried into Brown’s residence, she noticed that there were "a lot of people in the house."

Dickerson undisputedly was a social guest on Brown’s property and thus was a licensee. See Thompson v. Oursler , 318 Ga. App. 377, 378, 733 S.E.2d 359 (2012) ("Georgia has adopted the rule that a social guest is not an invitee but is a licensee.") (citation and punctuation omitted). Under Georgia premises liability law, the general rule is that "the duty owed to an invitee is greater than that owed to a licensee."

Jarrell v. JDC & Assoc. , 296 Ga. App. 523, 525, 675 S.E.2d 278 (2009). A property owner owes a duty to invitees to exercise ordinary care to keep the premises and approaches "in a reasonably safe condition." (Citation and punctuation omitted.) Boyd v. Big Lots Stores , 347 Ga. App. 140, 141 (1), 817 S.E.2d 698 (2018). See OCGA § 51-3-1. A property owner owes a more narrow duty to licensees not to injure them willfully or wantonly. OCGA § 51-3-2 (b) ; Van v. Kong , 344 Ga. App. 754, 755, 811 S.E.2d 474 (2018). Willful misconduct "is based on an actual intention to do harm or inflict injury," and wanton misconduct "has been described as that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent." (Citations and punctuation omitted.) Ga. Dept. of Transp. v. Strickland , 279 Ga. App. 753, 754 (1), 632 S.E.2d 416 (2006).

Notably, however,

[i]t is also usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be or may reasonably be expected to be, within range of a dangerous act being done or a hidden peril on one’s premises. In other words, a possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if , (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved. Where a licensee has equal knowledge of the dangerous condition or the risks involved, there is no wilful or wanton action on the part of the owner and there is no liability to the licensee.

(Citations and punctuation omitted; emphasis supplied.) Manners v. 5 Star Lodge & Stables , 347 Ga. App. 738, 741 (3), 820 S.E.2d 754 (2018). See Aldridge v. Tillman , 237 Ga. App. 600, 603 (1), 516 S.E.2d 303 (1999) ; Wade v. Mitchell , 206 Ga. App. 265, 267 (2) (c), 424 S.E.2d 810 (1992). "Therefore, the danger must be known and foreseen by the property owner before a duty to protect exists." Aldridge , 237 Ga. App. at 603 (1), 516 S.E.2d 303. See Thompson v. Oursler , 318 Ga. App. 377, 378, 733 S.E.2d 359 (2012) (licensee must come forward with evidence that property owner knew or had reason to know of dangerous condition that caused licensee’s injury).

Mindful of this legal framework, we conclude that summary judgment should have been granted to Brown because there was no evidence that the extension cord was on the stairs before he left to run errands, and thus no evidence that he placed the cord on the stairs or knew or had reason to know that the cord was there and posed a hazardous condition to Dickerson as one of the partygoers. As noted above, during his deposition, Brown testified that he did not place, leave, or see an extension cord on the stairs; that he performed yard work on the day of the party but with gas-operated equipment; and that he checked his backyard before the party and there was no cord on the stairs.

Where, as here, direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

(Citations and punctuation omitted.)

Haley v. Regions Bank , 277 Ga. 85, 89 (1), 586 S.E.2d 633 (2003).² Dickerson failed to make such a showing in this case.

Dickerson testified in her deposition that she did not know who put the extension cord out on the stairway or how long it had been there, and there were no affidavits or deposition testimony from any partygoers or other witnesses regarding the presence of the cord, the placement of the cord, the owner of the cord, or the purpose for which the cord was being used. Additionally, it is unclear from the record what happened to the extension cord after Dickerson fell, and no photographs of the cord were introduced into evidence. In the absence of the cord or any photographs of it, Brown was never asked during his deposition to identify the specific cord upon which Dickerson tripped.

Given that there was no direct evidence supporting her position, Dickerson relied on circumstantial evidence in an effort to support...