Julio Pajaro v. South Georgia Bank
339 Ga. App. 334
| Ga. Ct. App. | 2016Background
- Julio Pajaro leased commercial premises from South Georgia Bank after the bank acquired title in Dec. 2009; landlord did no inspection but did a walk-through with Pajaro.
- Lease provision assigned routine repair obligations to the tenant; landlord retained responsibility for major mechanical systems.
- In May 2012 a rear exterior wooden staircase collapsed as Pajaro stepped on it, causing serious injury; Pajaro had not previously noticed structural problems.
- Appellants’ expert (licensed commercial/residential contractor) opined collapse resulted from construction defects (non-galvanized nails, unsealed/rotted posts) and that a pre-acquisition inspection would have revealed them.
- Landlord was out-of-possession, did not build or repair the staircase, and testified it had no knowledge of defects.
- Trial court granted summary judgment to landlord on all claims; on appeal the court affirmed some rulings but reversed others based on genuine issues of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Defective construction (liability for defects by predecessor-in-title) | Pajaro: defects from prior construction caused collapse; inspection at acquisition would have revealed them, so landlord had constructive knowledge | Bank: landlord did not build or supervise construction and had no knowledge; expert opinion about inspectability is conclusory | Reversed as to this claim — factual dispute exists whether defects were discoverable by reasonable inspection, jury question |
| Failure to repair | Pajaro: landlord retained duty to repair under OCGA § 44-7-14 and failed to repair staircase | Bank: lease assigned repair duty to tenant; in any event landlord had no notice of defect | Affirmed for landlord — no evidence landlord had notice or request to repair; plaintiffs failed to raise fact issue |
| Failure to warn | Pajaro: landlord failed to warn of hazardous condition | Bank: out-of-possession landlord not liable for failure-to-warn under OCGA § 44-7-14 | Affirmed for landlord — failure-to-warn not a tort basis under statute for out-of-possession landlord |
| Loss of consortium (spouse) | Spouse: derivative claim based on Julio’s recovery | Bank: derivative claim fails if Julio’s claim fails | Reversed as to this claim — because defective-construction claim survives, loss-of-consortium also survives |
Key Cases Cited
- Campbell v. Landings Assn., 289 Ga. 617 (Ga. 2011) (summary-judgment standard on appeal)
- Martin v. Johnson-Lemon, 271 Ga. 120 (Ga. 1999) (out-of-possession landlord liability limited; purchaser’s opportunity to discover preexisting defects)
- Flagler Co. v. Savage, 258 Ga. 335 (Ga. 1988) (exception when purchaser could have discovered predecessor’s defective construction)
- Gainey v. Smacky’s Investments, 287 Ga. App. 529 (Ga. Ct. App. 2007) (landlord liability requires notice for failure-to-repair; failure-to-warn not actionable under § 44-7-14)
- Rainey v. 1600 Peachtree, LLC, 255 Ga. App. 299 (Ga. Ct. App. 2002) (defect discoverable by pre-purchase inspection can impose liability)
- Colquitt v. Rowland, 265 Ga. 905 (Ga. 1995) (OCGA § 44-7-13 does not create tort liability for landlords)
- Groutas v. McCoy, 219 Ga. App. 252 (Ga. Ct. App. 1995) (commercial leases may allocate repair duties away from landlord)