Johnson St. Props., LLC v. Clure

• Decision Date: 13 September 2017
• Docket Number: S17A0811 S17X0812.
• Citation: 805 S.E.2d 60
• Parties: JOHNSON STREET PROPERTIES, LLC v. CLURE; and vice versa.
• Court: Georgia Supreme Court

302 Ga. 51

805 S.E.2d 60

JOHNSON STREET PROPERTIES, LLC

v.CLURE; and vice versa.

S17A0811 S17X0812.

Supreme Court of Georgia.

Decided: September 13, 2017

William Randal Bryant, Wayne Stephen Tartline, BOVIS, KYLE, BURCH & MEDLIN, LLC, 200 Ashford Center North, Suite 500, Atlanta, Georgia 30338, for Appellant in S17A0811 and Appellee in S17X0812.

Edward Malcum Wynn, III, James Nicholas Sadd, SLAPPEY & SADD, LLC, 352 Sandy Springs Circle, Atlanta, Georgia 30328, for Appellee in S17A0811 and Appellant in S17X0812.

Christopher Shane Keith, HAWKINS PARNELL THACKSTON & YOUNG LLP, 4000 Sun Trust Plaza, 303 Peachtree Street, N.E., Atlanta, Georgia 30308–3243, Charles Benjamin Carmichael, HAWKINS PARNELL THACKSTON & YOUNG LLP, 303 Peachtree Street NE, Suite 4000, Atlanta, Georgia 30308, for Amicus Appellant in S17A0811 and Amicus Appellee in S17X0812.

J. MarcusEdward Howard, POPE & HOWARD, P.C., 945 East Paces Ferry Road, Suite 225, Atlanta, Georgia 30326, for Amicus Appellant in S17X0812.

Hunstein, Justice.

This case stems from a negligence action filed by Appellee/Cross-Appellant Cynthia Clure for injuries she sustained after being struck by a tree limb while on a premises belonging to Appellant/Cross-Appellee Johnson Street Properties, LLC (hereinafter "JSP"). Clure alleged that JSP failed to maintain a safe premises for its invitees. JSP filed a notice to apportion fault to a non-party and moved for summary judgment, alleging that no genuine issue of material fact existed regarding its negligence. In response, Clure filed a motion for partial summary judgment, alleging that Georgia's Apportionment Statute ( OCGA § 51–12–33 ) was unconstitutional and that JSP's notice of non-party fault should be dismissed because of issues of proof regarding causation.

The trial court denied JSP's summary judgment motion, finding that genuine issues of material fact existed regarding its negligence. As to Clure's partial motion for summary judgment, though the trial court found Georgia's Apportionment Statute to be constitutional, the trial court agreed that issues remained concerning causation, and granted partial summary judgment to Clure with respect to the non-party.

Both parties appealed. For the reasons that follow, we affirm the judgment of the trial court regarding JSP's motion for summary judgment, reverse the judgment of the trial court regarding JSP's notice of non-party fault, and vacate and remand the trial court's order regarding Clure's constitutional claim on cross-appeal.

Case No. S17A0811

1. JSP raises two issues on appeal, contending that the trial court erred in denying its motion for summary judgment and granting partial summary judgment to Clure concerning JSP's notice of non-party fault.

Summary judgment is proper "if 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." OCGA § 9–11–56(c). We review the grant or denial of a motion for summary judgment de novo, and "we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a), 697 S.E.2d 779 (2010).

Woodcraft by Macdonald, Inc. v. Georgia Cas. & Sur. Co., 293 Ga. 9, 10, 743 S.E.2d 373 (2013). See also American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444–445 (2), 679 S.E.2d 25 (2009). "The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact." (Citation omitted.) Ansley v. Raczka-Long, 293 Ga. 138, 140 (2), 744 S.E.2d 55 (2013). Furthermore, " ‘[t]he trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.’ " (Citations omitted.) Landings Ass'n, Inc. v. Williams, 291 Ga. 397, 398–399, 728 S.E.2d 577 (2012). With these principles in mind, we review JSP's claims.

(a) Motion for Summary Judgment

JSP alleges that the trial court erred in denying its motion for summary judgment on Clure's negligence claims because: i) JSP had no knowledge of the hazard; ii) Steve Wilbur, the person who removed the limb, was not an agent or employee of JSP acting within the course and scope of his employment at the time of the incident; and iii) Clure had superior knowledge of the hazard, failed to exercise ordinary care for her own safety, and assumed the risk by getting too close to a known hazard. However, viewing the evidence in the light most favorable to Clure, we agree with the trial court that genuine issues of material fact remain as to all three of these issues.

The record shows that, at all relevant times, Clure was a tenant of Johnson Street Apartments, a complex in Bremen, Georgia, that was owned and operated by JSP. JSP was owned and managed by Dan and Elaine Cartwright, and their two sons, Chris and John.

Sometime in early 2013, a limb fell onto JSP's property from a tree located on a neighboring lot. Other tree limbs had fallen onto the property during storms in the past, including some from the adjacent property, and the Cartwrights took action to remove those branches when such instances occurred. In this case, a limb fell during a storm and became suspended between the gutter of one of JSP's apartment buildings and some brush. The parties agree that the suspended limb was an open and obvious condition, yet the length of time the limb remained suspended is disputed by the parties, ranging anywhere from a few days to a few months. Clure and her neighbors were aware that the limb was stuck on the gutter, and Clure had gone so far as to warn other tenants to stay away from the limb because it was dangerous and could fall. Clure testified that she left voicemails with the Cartwrights, notifying them of the suspended limb; the owners, however, deny ever receiving any such voicemails.

On the day of the incident, Clure discussed the limb with Steve Wilburn, a fellow tenant who sometimes worked as a maintenance man for JSP. Wilburn and Clure walked over to the area of the hazard, at which time Wilburn took a rope and/or string and threw it over the limb. Clure testified that she heard the gutter tear and told Wilburn to stop so she could warn the tenant inside the apartment, who suffered from mental health issues, about the loud noise. As she walked out of the apartment, Clure told Wilburn "Hold on. If you're going to do anything, just wait." She saw Wilburn pulling on the rope in a downward motion and turned to walk away from the same; though the parties dispute how far away Clure was from the hazard, they agree that the limb swung down from its perch and struck her, causing injuries.

i) JSP's Knowledge

First, JSP contends that it had no knowledge of the hazard prior to the incident at issue. It is well established that Georgia premises liability law holds owner/occupiers of land liable for damages suffered by an invitee on their property where the invitee's injuries were

caused by [the owner/occupier's] failure to exercise ordinary care in keeping the premises and approaches safe. While not an insurer of the invitee's safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap. The owner/occupier is not required to warrant the

safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises .

(Emphasis added.) Robinson v. Kroger Co., 268 Ga. 735, 740, 493 S.E.2d 403 (1997). In other words, an owner/occupier is generally on constructive notice of what a reasonable inspection conducted in the exercise of ordinary care would reveal. See Ferguson v. Premier Homes, Inc., 303 Ga. App. 614, 617, 695 S.E.2d 56 (2010) ; Hagadorn v. Prudential Ins. Co., 267 Ga. App. 143, 146, 598 S.E.2d 865 (2004). However, "one is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it." (Punctuation and citation omitted.) Ferguson, 303 Ga. App. at 617, 695 S.E.2d 56.

Construing the evidence in favor of Clure, genuine issues of material fact remain as to whether JSP had either actual or constructive notice of the hazardous condition on its property. First, as discussed in more detail below, there is a genuine issue of material fact as to whether Wilburn acted as JSP's agent when removing the limb; if so, then any knowledge about the hazard posed by the limb and its removal could be imputed to JSP. Moreover, there is a question of fact as to whether JSP knew about the limb even aside from Wilburn's knowledge. As discussed above, there is a dispute in the evidence as to whether Clure notified the property owners of the presence of the limb by leaving them voicemails concerning the tree limb. Also, while there is evidence that the owners conducted inspections of the property after major storms, there is a dispute as to whether: 1) a reasonable inspection was conducted between the time the limb in question became suspended (which evidence...