Pennington v. Cecil N. Brown Co., Inc., 76136

• Decision Date: 08 June 1988
• Docket Number: No. 76136,76136
• Parties: PENNINGTON v. CECIL N. BROWN COMPANY, INC. et al.
• Court: Georgia Court of Appeals

Page 106

371 S.E.2d 106

187 Ga.App. 621

PENNINGTON v. CECIL N. BROWN COMPANY, INC. et al.

No. 76136.

Court of Appeals of Georgia.

June 8, 1988.

Rehearing Denied June 23, 1988.

Certiorari Denied Sept. 8, 1988.

Charles E. Moore, Atlanta, Carolyn Mercer, Dunwoody, for appellant.

Karen L. Jenkins, Arthur L. Myers, Jr., John M. Bovis, Atlanta, for appellees.

CARLEY, Judge.

Appellant-plaintiff is a member of the congregation of appellee-defendant Mount Paran Church of God, Inc. (Church). As appellant was leaving a worship service in February of 1985, she slipped and fell on a patch of ice which had accumulated on a Church parking lot. The parking lot was one of several improvements which had been constructed for the Church by appellee-defendant Cecil N. Brown Co., Inc. (Contractor) and which the Church had, at the time of appellant's fall, already accepted from the Contractor as completed projects. As the result of her fall on the ice, appellant initiated this tort action against both appellees. Appellant alleged three theories of recovery: Negligence; Nuisance; and, Strict Liability. Both appellees answered, denying the material allegations of the complaint, and each subsequently moved for summary judgment. The trial court granted appellees' motions. Appellant appeals from the order which granted summary judgment in favor of appellees.

1. Urging that genuine issues of material fact remain as to the Contractor's liability, appellant enumerates the grant of summary judgment in favor of that appellee as error.

Appellant cites extensively to foreign authority. Regardless of the law in other jurisdictions, however, the law of Georgia is settled with regard to a contractor's liability for finished projects which have been accepted by his employer. "The general rule in such circumstances as exist in the instant case is that 'the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection. [Cits.] There are, of course, well recognized exceptions to this general rule. One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. Another is that the contractor is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons. [Cits.] If the work performed by the contractor is not shown to come within one of the exceptions to the general rule, when the work is finished by him and accepted by his employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from the defective conditions of the work. [Cit.]' [Cits.]" Derryberry v. Robinson, 154 Ga.App. 694, 695-696(2), 269 S.E.2d 525 (1980).

The undisputed evidence of record is that, at the time of appellant's fall, the Contractor had long since finished the parking lot and the other improvements which it had been engaged to build on the Church property and that the Church had accepted those improvements. The evidence also shows without dispute that any alleged "defects" in those improvements made to the Church property by the Contractor could not be considered to be hidden. See generally Tison v. Eskew, 114 Ga.App. 550, 151 S.E.2d 901 (1966). The undisputed evidence of record further negates the applicability of any exception to the general rule of the Contractor's non-liability for such observable and allegedly defective conditions in those improvements which had previously been accepted by the Church. See generally Young v. Smith & Kelly Co., 124 Ga. 475, 52 S.E. 765 (1905); PPG Indus. v. Genson, 135 Ga.App. 248, 250(2), 217 S.E.2d 479 (1975); Cox v. Ray M. Lee Co., 100 Ga.App. 333, 111 S.E.2d 246 (1959). Accordingly, the trial court correctly granted summary judgment in favor of the Contractor as to appellant's negligence count and as to her nuisance count as well. See generally Cox v. Ray M. Lee Co., supra at 335, 111 S.E.2d 246(2).

As to appellant's strict liability claim, it is clear that the Contractor is not the manufacturer of any allegedly defective personal property which it sold as new property. The Contractor is, instead, merely the builder of improvements to real property. Compare Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga.App. 225, 235 S.E.2d 664 (1977); Long Mfg., N.C., v. Grady Tractor Co., 140 Ga.App. 320, 231 S.E.2d 105 (1976). It would, therefore, necessarily follow that the grant of summary judgment in favor of the Contractor was also correct as to this third theory of recovery which was advanced by appellant.

2. Appellant also urges that the trial court's grant of summary judgment in favor of the Church was erroneous.

Our analysis in Division 1 would be equally applicable with regard to the disposition of the nuisance and strict liability claims which appellant asserts against the Church. Therefore, we now hold that the trial court likewise correctly granted summary judgment in favor of the Church as to those claims and our holding in this regard needs no further elaboration.

3. Our holding in Division 1 with regard to the negligence claim that was asserted against the Contractor would not, however, necessarily be dispositive of the negligence claim which appellant asserts against the Church. While the duties and responsibilities of appellees are similar, they are distinguishable and different. See Mullis v. Southern Co. Svcs., 250 Ga. 90, 92-93(3), 296 S.E.2d 579 (1982). The Church is the owner and the occupier of the land and, as such, it has the duty to exercise ordinary care to keep the premises safe for its invitees. See OCGA § 51-3-1. Thus, the issue to be resolved is whether, construing the evidence most favorably for appellant, a genuine issue remains as the Church's breach of the duty, which it owed as a landowner, to keep the premises safe for appellant, who was an invitee thereon.

As indicated, appellant was, at the time of her fall, an invitee of the Church. See generally Cox v. DeJarnette, 104 Ga.App. 664, 123 S.E.2d 16 (1961); American Legion Dept. of Ga. v. Simonton, 94 Ga.App. 184, 94 S.E.2d 66 (1956). Thus, cases which concern the duty owed by landowners to licensees, such as Nixon v. Edmonson, 177 Ga.App. 662, 340 S.E.2d 278 (1986) and Evans v. Parker, 172 Ga.App. 416, 323 S.E.2d 276 (1984), are factually distinguishable and inapplicable authority in this case. Accordingly, reliance upon such cases is misplaced as authority for the grant to the Church of summary judgment as to appellant's negligence claim.

The Church urges that the trial court nevertheless correctly held that the decision in Auerbach v. Padgett, 122 Ga.App. 79, 176 S.E.2d 193 (1970) and McIntyre v. Corp. Prop. Investors, 160 Ga.App. 868, 288 S.E.2d 584 (1982) mandated the grant of the motion for summary judgment as to appellant's negligence claim. Those cases do concern invitees rather than licensees. In both Auerbach and McIntyre, the plaintiff-invitee made a conscious decision to step upon a surface which she visually perceived to be different from the surface of the immediate surrounding premises. The plaintiff in Auerbach deliberately stepped into what appeared to her to be a "wet place" on a walkway, the surface of which walkway was otherwise dry. Underneath the "wet place" on the walkway, however, there was ice. The plaintiff in McIntyre deliberately stepped into what appeared to her to be a "dark patch" on the surface of a parking lot, the surface of which parking lot was otherwise dry and free of ice or any other dark patches. The "dark patch" on the parking lot proved, however, to be ice. In each case, the conscious decision of the plaintiff to step into the "patches" which differed from the surrounding surface, coupled with her awareness of the existing climatic conditions, showed that her knowledge of the alleged defect causing the fall was at least equal to that of the defendant-landowner.

When the evidence in this case is construed most strongly in appellant's favor, she, entirely unlike the plaintiffs in Auerbach and McIntyre, did not consciously choose to step onto a "wet" or "dark" surface which appeared to her to be visually different from the immediately surrounding surface. Appellant testified that, notwithstanding her maintenance of a lookout ahead, it appeared to her that she was stepping down onto the black asphalt of the parking lot and that, "[p]rior to [her] fall, [she] did not and could not see any ice in the area. After [she] fell, [she] looked back and saw that [she] had fallen on ice, which was black, and which was up against the curb, but not thick enough to reach the top of the curb so that the same was invisible while walking along the walkway north toward the asphalt area, but could be seen only after passing the curb and looking back towards [the C]hurch." (Emphasis supplied.) Thus, according to appellant, it had appeared to her that she was stepping down onto the black asphalt surface of the parking lot, not that she was stepping down onto a surface which differed from the black asphalt of the parking lot. It was only after she had fallen and viewed the area from the other side of the curb that appellant could determine that the surface upon which she had placed her foot was not the black asphalt of the parking lot, but black ice. This evidence does not demand the conclusion that appellant had at least equal knowledge of the icy condition which caused her to fall. To the contrary, it raises the issue of optical illusion. "This court cannot say, as a matter of law, that such illusion, alleged to have been presented to [appellant], while approaching her car for the purpose of entering therein on that part of the parking lot in question, was not or could not have been so presented to the [appellant]. ...