Shepherd v. Holmes, 74976

• Decision Date: 06 October 1987
• Docket Number: No. 74976,74976
• Citation: 362 S.E.2d 396,184 Ga.App. 648
• Parties: SHEPHERD et al. v. HOLMES.
• Court: Georgia Court of Appeals

Page 396

362 S.E.2d 396

184 Ga.App. 648

SHEPHERD et al. v. HOLMES.

No. 74976.

Court of Appeals of Georgia.

Oct. 6, 1987.

Rehearing Denied Oct. 26, 1987.

Certiorari Denied Dec. 21, 1987.

Cliff C. Perkins, Carrollton, for appellants.

Henry E. Scrudder, Jr., Thomas E. Greer, Carrollton, for appellee.

SOGNIER, Judge.

Robert and Sandra Shepherd brought suit for negligence and loss of consortium, respectively, against Lynn Holmes and Wal-Mart Stores, Inc. for injuries incurred following Robert Shepherd's fall in a store leased by Wal-Mart from Holmes. The trial court denied Wal-Mart's motion for summary judgment, which ruling was not appealed, and granted Holmes' motion for summary judgment. The Shepherds appeal.

The record reveals that the roof of the Wal-Mart store in question here had outlived its useful life with the result that leaks appeared in the ceiling of the interior of the building. Due to the makeshift nature of appellee's repairs, leak after leak appeared until Wal-Mart had to threaten appellee with its right to "repair and deduct" in order to obtain a satisfactory resolution of the roof problem. However, the new roof had not yet been installed on the day appellant Robert Shepherd visited the automotive section at the rear of the Wal-Mart store. Shepherd slipped in an aisle within arm's reach of a large (30 or 32 gallon) brown plastic garbage container, which had been placed in the aisle by employees of Wal-Mart to catch the water dripping from two overhead leaks. Shepherd grabbed at the garbage can, which was half filled with water, in an attempt to break his fall, but succeeded only in spilling the contents of the container all over the aisle. The evidence was uncontroverted that the ceiling in the area of Shepherd's fall had been leaking for roughly three weeks, and that the garbage container had been under those particular leaks for two or three days at the time of Shepherd's fall. Leroy McCoy, of Wal-Mart's janitorial department, stated in his deposition that not all of the water leaking from the ceiling always dripped into the garbage container and that on the morning of Shepherd's fall, water had accumulated around the base of the garbage container. McCoy stated he mopped up the water at that time and moved the container in order to compensate for the change in the location of the drip. However, his testimony was equivocal whether he returned to check the container at any point between his 8:00 a.m. mopping and Shepherd's fall at 10:30-11:00 a.m.

1. Appellants contend the trial court erred by granting summary judgment to appellee on the basis that appellee owned no duty to appellants and had no control over the events occurring inside the store. OCGA § 44-7-14 provides: "Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair." " 'A landlord is liable to one lawfully present on the rented premises, by invitation of the tenant, for injuries arising from defective construction, or from failure to keep the premises in repair, when the defect is known to the landlord or in the exercise of reasonable diligence could have been known, and the injured person was himself in the exercise of due care.' [Cit.]" Yates v. Crumbley, 116 Ga.App. 366, 368, 157 S.E.2d 295 (1967). Although appellee argues that Wal-Mart's...