Lore v. Suwanee Creek Homeowners Ass'n Inc.Suwanee Creek Homeowners Ass'n Inc

• Decision Date: 24 June 2010
• Docket Number: No. A10A0012,A10A0013.,A10A0012
• Citation: 305 Ga.App. 165,699 S.E.2d 332
• Parties: LORE et al.v.SUWANEE CREEK HOMEOWNERS ASSOCIATION, INC.Suwanee Creek Homeowners Association, Inc.v.Lore et al.
• Court: Georgia Court of Appeals

305 Ga.App. 165

699 S.E.2d 332

LORE et al.

v.SUWANEE CREEK HOMEOWNERS ASSOCIATION, INC.

Suwanee Creek Homeowners Association, Inc.

v.Lore et al.

Nos. A10A0012, A10A0013.

Court of Appeals of Georgia.

June 24, 2010.

COPYRIGHT MATERIAL OMITTED

Hall, Booth, Smith & Slover, Kenneth D. Jones, W. Scott Henwood, for appellants.

Weissman, Nowack, Curry & Wilco, Julie L. Sellers, Jason A. LoMonaco; Bovis, Kyle & Burch, Charles M. Medlin, Wayne S. Tartline, Atlanta, for appellee.

DOYLE, Judge.

Rebecca A. Lore and David Alan Lore filed suit against their homeowners association, the Suwanee Creek Homeowners Association, Inc. (“SCHOA”), alleging claims for nuisance, trespass, and negligence based on water runoff from a SCHOA-owned “Recreation Area” immediately behind their property. The Lores also asserted a personal injury claim based on injuries Rebecca Lore sustained when the ground upon which she was standing collapsed, attributing the collapse to the repeated flooding and storm-water-runoff washing away the earth under what appeared to be solid ground surface. SCHOA moved for summary judgment on all claims. The trial court granted summary judgment as to the Lores' personal injury claims and denied summary judgment as to the remaining claims. The Lores appeal the grant of summary judgment in Case No. A10A0012, and SCHOA appeals the denial of summary judgment in Case No. A10A0013. For reasons that follow, we reverse in both cases.

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. A trial court's grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the nonmovant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. ¹

So viewed, the record shows that SCHOA owns and maintains a large wooded area known as the Recreation Area, which was constructed by Westbrook 23, LLC, the developer for the subdivision, and which abuts the rear of the Lores' property. The Lores' property is downhill from the Recreation Area. The plat for the development denotes a 20-foot “improved ditch” that, according to the Lores' complaint, would direct water runoff through pipes and into a pond and a creek in the Recreation Area; the ditch was designed to ensure that water runoff did not traverse lots in the subdivision, including the Lores' property. According to the complaint the subdivision declaration provides that SCHOA “shall maintain and keep in good repair ... all storm water, storm water management, and detention facilities serving the Development.”

It is undisputed that the improved ditch was never constructed. According to the Lores, storm water flows through pipes and onto the ground of the Recreation Area, where it then flows directly downhill to the Lores' property before it reenters the Recreational Area and ultimately a pond. The Lores documented 48 instances of storm-water runoff onto their property between June 2004 and October 2007. Mrs. Lore deposed that a majority of the water “is coming specifically from the [SCHOA] property [and] ponding on [the Lores'] property.” The Lores made extensive complaints to SCHOA about the water, but they were unavailing. In 2004, Westbrook (the Developer) offered to construct the ditch in exchange for a hold harmless agreement from SCHOA, but SCHOA would not agree.

On October 23, 2006, Mrs. Lore walked onto the Recreation Area to pick up trash. She was at the top of an embankment, looking down, when she squatted and then stood up, “the ground just gave out from underneath [her],” and she then fell, impaling her forearm on a branch. Mrs. Lore's injury occurred “at least [four] feet away from [the] closest edge of [a] sinkhole ...” that the Lores first noticed on June 27, 2004, while they were cleaning their deck. ² Prior to the incident, Mrs. Lore observed the sinkhole approximately 50 times. Because she was worried that someone could fall into the hole and injure himself, she notified no fewer than 28 people, including neighbors, SCHOA board members, and county officials, about the hole.³ Prior to her fall, Mrs. Lore took multiple photographs of the hole, and she placed orange warning cones around it for a six-month period, but ultimately stopped because the cones repeatedly blew away. According to Mrs. Lore, she spent “hundreds” of hours investigating the sinkhole, which included researching “facets of the county and the board”; she did not, however, testify about the results of her investigation. At her deposition, she was asked whether in October 2006, there was anyone “more familiar with the sinkhole and its possible dangerous condition” ⁴ than she was, and Mrs. Lore replied, “Not more so, no. There's probably people that are equal but not more so.” However, when asked about her knowledge of the danger surrounding the hole before her incident, Mrs. Lore testified that she was concerned that someone might back into it or might walk up to the edge, lose his balance, and fall into it. Mrs. Lore further expressed that she, however, did not fall or slip into the hole; rather, she was “swallowed up” by it. When asked whether the ground around the sinkhole was unstable, Mrs. Lore replied, “I don't know. I just know that the water was ... it continued to cut lengthwise and depth [wise]. It didn't seem to be changing too much in its width. It was just cutting straight down and through, trying to find its way.” ⁵

After the Lores filed suit, SCHOA filed a motion for summary judgment. Following oral argument, the trial court granted summary judgment to SCHOA on the personal injury claim and denied SCHOA's motion for summary judgment as to the Lores' claims for trespass, nuisance, and negligence. This appeal follows.

Case No. A10A0012

1. The Lores argue that the trial court erred in granting summary judgment to

SCHOA on their personal injury claim. We agree.

Following the seminal Supreme Court decision in Robinson v. Kroger Co., ⁶

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 defendant had 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.⁷

(a) SCHOA's Knowledge. Here, although it is undisputed that SCHOA had actual knowledge of the sinkhole in the Recreation Area, there is no evidence that SCHOA had actual knowledge that the ground “at least four feet away” from the sinkhole was unstable and susceptible to collapse. Thus, the Lores must come forward with evidence that SCHOA had constructive knowledge of the hazard.

“An owner/occupier is on constructive notice of what a reasonable inspection would reveal.” ⁸ Robinson provides that an owner/occupier of land must

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. ⁹

Construing the evidence in favor of Mrs. Lore, the evidence that she repeatedly notified SCHOA that there was a sinkhole in the Recreation Area raises a question of fact as to whether SCHOA failed in its duty to conduct a reasonable inspection of the sinkhole and the surrounding area to determine whether it posed a danger to invitees and whether it failed to take reasonable steps to protect invitees from those dangers.¹⁰ To hold otherwise would be to effectively permit SCHOA to escape liability once Mrs. Lore notified it of the existence of the sinkhole by intentionally failing to inspect the hole and the surrounding area for instability or other dangers to avoid knowledge of the hazard.

The dissent concludes that neither Lore nor SCHOA made an argument below or on appeal that SCHOA had a duty to inspect the sinkhole, and therefore, we are impermissibly applying the “wrong for any reason rule.” We respectfully disagree. The Lores alleged in their complaint that SCHOA breached its duty to maintain the Recreation Area, “thus creating hazardous conditions and other hidden dangers likely to cause bodily harm ...” and that despite Mrs. Lore's repeated notices and pleas to maintain the Recreation Area, she was injured as a result of SCHOA's “entire want of care and conscious indifference to the consequences” of failing to do so.¹¹ Mrs. Lore emphasized that she repeatedly notified SCHOA about the hole on multiple occasions and that it failed to take any steps in response.

In its summary judgment brief to the trial court, SCHOA focused its argument on Mrs. Lore's knowledge, arguably implicitly conceding that it had constructive knowledge of the hazard.¹² As a result, Mrs. Lore's brief to the trial court also focused more on her knowledge of the hazard. She did, however, argue that the “[sinkhole] created by the erosive effect of the storm water runoff ... was a hazardous condition[,] and through Mrs. Lore's pleas to the SCHOA, they knew of this hazard, but consistently ...