Landings Ass'n, Inc. v. Williams

• Citation: 12 FCDR 1892,728 S.E.2d 577,291 Ga. 397
• Decision Date: 18 June 2012
• Docket Number: S11G1277.,Nos. S11G1263,s. S11G1263
• Parties: The LANDINGS ASSOCIATION, INC. v. WILLIAMS et al. The Landings Club, Inc. v. Williams et al.
• Court: Georgia Supreme Court

291 Ga. 397

728 S.E.2d 577

12 FCDR 1892

The LANDINGS ASSOCIATION, INC.

v.WILLIAMS et al.

The Landings Club, Inc.

v.Williams et al.

Nos. S11G1263, S11G1277.

Supreme Court of Georgia.

June 18, 2012.

Walter Wynne Ballew, III, Barrow & Ballew, P.C., Savannah, for appellant.

Robert Bartley Turner, Kathryn Hughes Pinckney, Savage & Turner P.C., Savannah, David Michael Conner, The Conner Law Group, P.C., Savannah, Marion T. Pope, Jr., Hasty, Pope & Ball, Canton, Daniel Brent Snipes, Franklin Taulbee Rushing Snipes & Marsh, Statesboro, for appellee.

Johnny Andrew Foster, Morton G. Forbes, Forbes, Foster & Pool, Savannah, Mark David Johnson, Gilbert Harrell Sumerford & Martin, P.C., Brunswick, Glen Kimball Williams, McNamee, Lochner, Titus & Williams, P.C., Albany, for other party.

MELTON, Justice.

In The Landings Association, Inc. v. Williams et al., 309 Ga.App. 321, 711 S.E.2d 294 (2011), the Court of Appeals held that the trial court properly denied in part motions for summary judgment brought by The Landings Association, Inc., and The Landings Club, Inc., finding that a question of fact remained as to whether The Landings entities failed, pursuant to the law of premises liability, to take reasonable steps to protect Gwyneth Williams from being attacked and killed by an alligator in the planned residential community and golf club owned and/or managed by The Landings entities.¹ We granted certiorari to determine whether the Court of Appeals erred in reaching this conclusion. Because the record shows that Williams had equal knowledge of the threat of alligators within the community, we reverse.

As is relevant to our holding, the facts, in the light most favorable to Williams, show that, at the time of the alligator attack, Williams was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970's, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.

Although alligators inhabited the area of The Landings before and after its establishment, no person had ever been attacked until the night of October 5, 2007, when Williams, who was 83 at the time, went for a walk near one of the lagoons near her daughter's home some time after 6:00 p.m. The following morning, Williams' body was found floating in the lagoon.² Williams' right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the same lagoon, and, after the alligator was killed, parts of Williams' body were found in its stomach.

The record shows that, prior to the attack, Williams was aware that the property was inhabited by alligators. Williams' son-in-law testified that, on at least one occasion, he was driving with Williams on property in The Landings when he stopped the car to allow Williams to look at an alligator. Williams' son-in-law also testified that Williams was, in fact, aware that there were alligators in the lagoons at The Landings and that he believed that Williams had a “normal” respect for wild animals. When asked whether he had ever discussed how to behave around wild alligators with Williams, her son-in-law responded: “No. There was never—quite frankly, there was never any reason to. I mean she was an intelligent person. She would—there was no question in my mind that—I guess I have to answer that as it's not like talking to a five year old child ... stay away from alligators.” In addition, Williams' son recalled a similar instance when he stopped the car to allow his mother to look at an alligator. At that time Williams mentioned that she did not like alligators and did not want to go anywhere near them.

Generally, in premises liability cases,

[a]fter [Robinson v. Kroger, 268 Ga. 735, 493 S.E.2d 403 (1997) ], to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendanthad actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff's injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one's personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant's own actions or conditions under the defendant's control. [Id. at 746–749, 493 S.E.2d 403.]

(Footnote omitted.) American Multi–Cinema, Inc. v. Brown, 285 Ga. 442, 444–445(2), 679 S.E.2d 25 (2009). See also OCGA § 51–3–1.

Furthermore, it must be remembered that

“ ‘The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ [Cits.] One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.” [Cits.] [McKnight v. Guffin, 118 Ga.App. 168, 169, 162 S.E.2d 743 (1968).]

Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392(3), 394 S.E.2d 345 (1990). However, “ ‘[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. [Cit.]’ [Cits.]” Robinson, supra, 268 Ga. at 739(1), 493 S.E.2d 403.

In this case, testimony shows that Williams was aware that wild alligators were present around The Landings and in the lagoons. Therefore, she had knowledge equal to The Landings entities about the presence of alligators in the community. In addition, the record shows that Williams knew that the wild alligators were dangerous, saying herself that she would not want to be anywhere near them. Nonetheless, Williams chose to go for a walk at night near a lagoon in a community in which she knew wild alligators were present. This act undisputably shows that Williams either knowingly assumed the risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so. Under these circumstances, the trial court should have granted the motions for summary judgment brought by the Landings entities regarding Williams' premises liability claims.

The dissent, like the Court of Appeals, attempts to avoid this conclusion by arguing that summary judgment for The Landings is precluded because there is no “competent evidence...