Scott v. Forest Acres Full Gospel Church

• Decision Date: 08 October 2019
• Docket Number: A19A1053
• Citation: 352 Ga.App. 145,834 S.E.2d 286
• Court: Georgia Court of Appeals
• Parties: SCOTT et al. v. FOREST ACRES FULL GOSPEL CHURCH et al.

352 Ga.App. 145

834 S.E.2d 286

SCOTT et al.

v.FOREST ACRES FULL GOSPEL CHURCH et al.

A19A1053

Court of Appeals of Georgia.

October 8, 2019

Charles M. Cork III ; Whitehurst Blackburn & Warren, Christopher K. Rodd, for appellants. Young Thagard Hoffman Smith Lawrence & Shenton, Matthew R. Lawrence ; Valerie E. Pinkett ; Whelchel & Carlton, Kyle T. Swann, for appellees.

Markle, Judge.

Jerry Scott was severely injured when he fell through a skylight in a building he was helping Forest Acres Full Gospel Church ("the Church") dismantle after the Church purchased it from the Hospital Authority of Colquitt County ("the Hospital"). Scott and his wife (collectively "the Scotts") sued the Church and the Hospital for negligence, vicarious liability, and loss of consortium, along with punitive damages and attorney fees. The trial court granted the Church’s and the Hospital’s motions for summary judgment, on the ground that Scott had equal knowledge of the danger when he went onto the roof.¹ The Scotts now appeal. After a thorough review of the record, and for the reasons that follow, we affirm.

Summary judgment is proper when there "is no genuine issue as to any material fact and . . . the moving party is entitled to ajudgment as a matter of law." OCGA § 9-11-56 (c). Our review of a trial court’s ruling on a motion for summary judgment is de novo, and we review the evidence, and all reasonable inferences, in the light most favorable to the nonmovant. See Green v. Raw Deal, Inc. , 290 Ga. App. 464, 465, 659 S.E.2d 856 (2008).

So viewed, the record shows that the Butler Building ("the building") on the Hospital’s property was a metal building constructed some time before 1981. The Hospital used the building for storage, and it was the only building on the property that had skylights. The skylights were fiberglass and were not load-bearing. The maintenance staff never cleaned or pressure washed the roof of the building, and there were no guards around the skylights.

In August 2014, the Hospital decided to sell the building to the highest bidder. It solicited bids by e-mail, explaining that: "The sale will require you to tear down and remove the building .... [R]emoval must be completed by September 26." The Hospital did not consider the sale completed until the removal occurred. The Church was the highest bidder, paying around $3,300.

In preparation for the removal of the building, Church member Chris Collier arranged to borrow a forklift from Scott. A week before the deadline, the Church began removal of the building. When Scott arrived with the forklift that morning, he realized that the Church was unprepared to disassemble the building; it did not have a plan or enough people on site to do the work. Although no one from the Church asked him to help, Scott volunteered because he had seen similar projects done in the past and had worked with his contractor to rebuild a shed at his home.

Scott used that knowledge to help the Church remove the building. Scott and other members of the Church walked around the building on ground level and noticed there were skylights in the roof. Scott heard someone mention that they would need to be careful on the roof because of those skylights. Then, based on Scott’s advice, the workers removed the trim off the building, the garage door, the walk-in door, and the front of the building before heading up to the roof. Once on the roof, they would remove the ridge cap and then take off the sheet metal and skylights.

After the Church’s pastor stated he would go on the roof to remove screws, Scott volunteered to go onto the roof with Church member Chris Nix, and he suggested that the pastor work the forklift. Scott and Nix discussed how far the skylights were from the edge of the roof, and the placement of the ridge cap running through the skylights, and they knew that removing the ridge cap would involve working where the skylights were located.

Without using safety harnesses or hard hats, the men used the forklift to raise themselves to the top of the roof and then began walking along the ridge cap to remove the screws. The roof was dirty and weathered, and it appeared all the same color to Scott; none of the skylights were marked or visible.² In addition, the skylights were flush against the roof and matched the same pattern as the rest of the material.

Scott did not expect the skylights to run all the way up the roof to the ridge cap, and he was paying attention to the screws as he walked. He and Nix removed the first section of the ridge cap and, as they started on the next section, Scott took several steps to the side. Nix yelled for Scott to look out for the skylight, but Scott fell through a skylight onto the concrete floor of the building, suffering severe injuries.

The Scotts sued the Church and the Hospital in tort. Following discovery, both defendants moved for summary judgment, arguing that they owed no duty to Scott because he was a licensee, and that even if they owed a duty, Scott had equal knowledge of the danger and failed to exercise ordinary care for his own safety, and that he assumed the risk of injury.

The trial court granted summary judgment to the Church and the Hospital, finding that Scott had equal knowledge of the risk because he knew the skylights were on the roof and that he failed to exercise ordinary care for his own safety.³ The Scotts now appeal.

In related enumerations of error, the Scotts argue that summary judgment was improper because (1) Scott was an invitee of both the Church and the Hospital; (2) as an invitee, the Hospital owed him a duty to exercise ordinary care to make the roof safe; (3) there remain factual questions regarding his knowledge of the skylights and his assumption of the risk that make summary judgment improper; and (4) the Hospital retained ownership of the building because it had not relinquished full possession of it. We disagree.

Before turning to the Scotts’ specific arguments, we first set out the applicable law.

In a cause of action for negligence, [the plaintiff] bears the burden of establishing four essential elements: (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. The legal duty of care owed by a landowner to a person coming upon the property varies and is fixed according to the legal status of the person entering the premises. A landowner owes the highest duty—the duty of ordinary care—to an invitee. A landowner owes a lesser duty—to avoid causing wilful or wanton injury—to a licensee.

(Citations and punctuation omitted.) Freeman v. Eichholz , 308 Ga. App. 18, 20 (1), 705 S.E.2d 919 (2011) (physical precedent only as to Division. 1); see also Garcia v. KRC Alderwood Trails, 348 Ga. App. 84, 88, 819 S.E.2d 713 (2018) ; OCGA § 51-3-1. Importantly, equal knowledge of the dangerous condition or the risks involved will preclude recovery regardless of whether the plaintiff is an invitee or licensee. Manners v. 5 Star Lodge and Stables , 347 Ga. App. 738, 741 (3), 820 S.E.2d 754 (2018) ; Perkins v. Kranz , 316 Ga. App. 171, 172 (1), 728 S.E.2d 804 (2012). With these standards in mind, we turn to the arguments on appeal.

1. The Scotts argue that the trial court erred in concluding that Scott had equal knowledge of the danger and failed to exercise ordinary care, and that he assumed the risk because these issues are questions for the jury. He further argues that he did not assume the risk because he did not have specific knowledge of the danger that caused his injury. We conclude that Scott had equal knowledge of the danger as a matter of law.

"The crux of a premises liability case is the owner’s superior knowledge of the hazard; thus, a plaintiff’s actual, subjective awareness of the hazard precludes a recovery under this theory." (Citation and punctuation omitted; emphasis supplied.) Saunders v. Indus. Metals and Surplus , 285 Ga. App. 415, 419 (3), 646 S.E.2d 294 (2007) ; see also OCGA § 51-11-7 ("If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.").

In addressing the Scotts’ enumerations of error, we are mindful that our standard of review requires us to view the evidence and make all reasonable inferences in the light most favorable to them. Green , 290 Ga. App. at 465, 659 S.E.2d 856. Additionally, although questions regarding a plaintiff’s equal knowledge and lack of ordinary care are usually questions for the jury, summary judgment is proper in "plain, palpable, and undisputed" cases. (Citation and punctuation omitted.) Garcia , 348 Ga. App. at 88, 819 S.E.2d 713 ; see also Robinson v. Kroger Co. , 268 Ga. 735, 739 (1), 493 S.E.2d 403 (1997) (summary judgment proper in plain and palpable cases). On this record, we conclude that this is one of those plain, palpable, and indisputable cases, and therefore, the trial court properly determined that Scott had equal knowledge of the risk and failed to exercise ordinary care.

Here, Scott has failed to show that there is a genuine issue of material fact. Scott admitted that he knew the skylights were on the roof, that they were unguarded, and that it was dangerous to fall from a skylight. He further admitted that once he was on the roof he could not tell where the skylights were. A person of ordinary prudence in this situation would simply not undertake to walk out on the roof under these circumstances. As we have explained,

[o]ne cannot admit knowledge of the presence of a mine field but claim ignorance because he was not aware that a mine was placed at the point he decided to enter it. Cases in which it is plain and palpable that knowledge was or should have

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