Ermert v. Wildwood At Meadow Gate Homeowners Ass'n, Inc.
Decision Date | 27 February 2020 |
Docket Number | A19A2342 |
Citation | 840 S.E.2d 457,354 Ga.App. 656 |
Court | Georgia Court of Appeals |
Parties | ERMERT v. WILDWOOD AT MEADOW GATE HOMEOWNERS ASSOCIATION, INC. et al. |
David B. Groff, Snellville, William Phillips Tinkler Jr., Decatur, for Appellant.
Melissa Ann Segel, Nelofar Agharahimi, Atlanta, Emily Ballard Marshall, for Appellee.
This case arises out of a premises liability action. Judy Ermert appeals the trial court's order granting summary judgment in favor of Wildwood At Meadow Gate Homeowners Association, Inc., ("Wildwood") and Heritage Property Management Services, Inc., ("Heritage"), (collectively, the "HOA"). Ermert contends the trial court erred in granting the HOA's motion for summary judgment because genuine issues of fact exist regarding the HOA's negligence. Ermert also contends the trial court erred by concluding that the alleged static defect that caused Ermert's injury could not have been found by an ordinary inspection, and by concluding that in order to find the static defect, "one had to step in it, or scrounge around the grass." For the following reasons, we affirm.
We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant may obtain summary judgment by showing an absence of evidence supporting at least one essential element of the plaintiff's claim.
Donastorg v. Rainbow USA, Inc. , 342 Ga. App. 215, 215, 802 S.E.2d 425 (2017) (citation omitted).
So viewed, the record shows that Wildwood owns property with certain grassy common areas in Gwinnett County that Heritage manages and Precision Maintenance Group, LLC ("Precision")1 maintains. On the morning of September 2, 2016, Ermert was walking in one of the common areas near a pond when she stepped in a hole in the grass that caused her to fall and fracture her foot. On September 19, 2016, then-Wildwood president Floyd Neal emailed Heritage's property manager, Rhonda Beasley, regarding a conversation he had with Ermert's son about Ermert's fall and subsequent injuries. In the email, Neal explains that he was contacted on September 17, 2016 by Ermert's son who told him that his mother stepped in a hole and broke her ankle while walking by the pond in the common area. Ermert's son claimed that Ermert underwent two surgeries to repair the damage caused by the fall and would have to spend some time in a rehabilitation facility. Ermert's son requested that Wildwood pay Ermert's out-of-pocket expenses related to her injuries and treatment.
In the email, Neal explained that there were no facts or evidence to support Ermert's claim. He went on to state that on September 17, 2016, at approximately 3:00 p.m., he went to the area where Ermert's son said his mother stepped into the hole and took several photographs. Neal's pictures did not reveal any holes in the area that met the description provided by Ermert's son. Neal did locate one hole that he speculated could have possibly caused the injuries to Ermert's ankle, but it was not located in the area where Ermert's son alleged the fall took place.
Ermert filed a complaint in April 2017 against HOA seeking damages for her injuries, medical expenses, and pain and suffering. Ermert moved the trial court to add Precision as a party to the lawsuit and amended her complaint. HOA later filed a motion for summary judgment, which the trial court granted, following a hearing.
In its order granting HOA's motion of summary judgment, the trial court found no evidence in the record that HOA had actual or constructive knowledge of any hole in the area where Ermert fell, and the HOA's duty to Ermert, an invitee,2 was to exercise ordinary care to protect against any unreasonable risks. The trial court further found there was no evidence in the record to suggest that any normal and reasonable inspection of the property would have revealed the hole because in order to find the hole "one had to step in it, or scrounge around the grass." Accordingly, the trial court concluded there was no genuine fact issue for the jury to decide. This appeal followed.
With regard to premises-liability cases, in Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe, which includes inspecting the premises to discover possible dangerous conditions of which the proprietor does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises. Nevertheless, proof that an invitee tripped or fell, without more, does not establish liability on the part of the property owner or occupier. Rather, in order for a plaintiff to recover damages for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. A plaintiff's evidentiary burden of proof concerning the second prong of this test is not, however, shouldered until the defendant first establishes negligence on the part of the plaintiff.
Berni v. Cousins Properties, Inc. , 316 Ga. App. 502, 504-505, 729 S.E.2d 617 (2012) (citations, punctuation, and footnotes omitted). With these guiding principles in mind, we now consider Ermert's claims of error.
Ermert contends the trial court erred by concluding there were no genuine fact issues regarding HOA's negligence. More specifically, Ermert contends HOA was negligent in failing to properly exercise their duty to invitees to conduct a reasonable inspection of its common area, and had they done so, the hole causing Ermert's injuries would have been discovered. We disagree with Ermert's contention.
As an initial matter, the evidence does not reflect, and Ermert does not argue, that HOA had actual knowledge of a hole in the grassy common area where Ermert alleges she fell. Thus, to avoid summary judgment, Ermert had to demonstrate that HOA had constructive knowledge of the hole and should have known of the hazardous condition. "Constructive knowledge can be shown by evidence that a proprietor's failure to discover the hazard resulted from its...
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