Sanford and Charles Ethridge, owners of a partnership d/b/a Colonnade Apartments, appeal the denial of their motion for sum *12 mary judgment in this premises liability suit by Ricky Davis and his wife. 1 A certificate of immediate review was granted by the trial court, and this Court granted the application for interlocutory appeal. Because Davis had equal knowledge of the defect in the premises which caused his injury, we reverse.
This Court reviews de novo a trial court’s grant or denial of summary judgment.
Jackson v. Post Properties,
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
(Emphasis omitted.)
Lau’s Corp. v. Haskins,
Viewed in favor of Davis, the evidence was that he, his wife and their daughter moved into Colonnade Apartments in 1994. They had lived in Unit 208, a townhouse, for at least a year prior to Davis’ fall on June 17,1996. Sometime shortly after they moved in, they noticed a leak in the ceiling of the kitchen around the light fixture. The bathroom was located above the kitchen, and the leak apparently originated from the bathroom pipes in the walls or ceiling.
The leak was reported to Altman, the resident manager, six or seven months prior to the fall, and notice was also given to the maintenance man. Additionally, after the leak had not been repaired, Sanford Ethridge came to the apartment and was personally shown the leak. Davis deposed that they complained about the problem “off and on for almost a year.”
Davis said the leak was worse when the shower or tub was being *13 used in the bathroom but that “[i]t practically leaked all the time.” The water would puddle in the light fixture in the kitchen ceiling. When so much water accumulated, “the [SJheetrock got weak and wet, started falling out of the ceiling. Then first it started dripping water, and at other times it would pour water.” Davis said he knew the leak was a problem because he complained about it constantly.
Mrs. Davis repeatedly cleaned up the water from the leak, which was hard to see on the floor because it was white linoleum. As she deposed, “I know I mopped and got water up every day some time during the day for ... a year.” Davis also stated that the water would be hard to see on the floor due to the white linoleum.
Although the leak was persistent, its timing would vary based on the rate of accumulation of the water. Mrs. Davis deposed that it leaked “different things different days.” Davis stated that “[y]ou never knew ... it depends on how much water collected before it would — how bad it would pour out or leak or drip out.”
On June 17, 1996, Mrs. Davis cleaned the kitchen floor that morning and had been in the kitchen three times thereafter and had not noticed more leaking. Around 5:00 p.m., Davis went into the kitchen to retrieve asthma medicine for a child for whom Mrs. Davis provided child care.
Davis, who had two prior neck and back surgeries as a result of previous job accidents, acknowledged that he did not look up at the fixture and surrounding Sheetrock as he walked into the kitchen, nor did he look at the floor. As he deposed,
I knew there was a problem every day, but ... it wasn’t something that was constantly on my mind, no. I got up and walked in the kitchen to get her medicine, that’s what was on my mind. . . . Maybe I should have looked up, yes, you know, because I knew there was a problem, but it wasn’t on my mind at the time, because it shouldn’t be something I would constantly think about or have to worry about anyway.
Even though the landlord is under a statutory duty to keep the premises in repair, OCGA §§ 44-7-13 and 44-7-14, he is not an ensurer of the tenant’s safety.
“Even though the condition of the premises may be hazardous and the landlord negligent, he may not be liable for injury where the (tenant) had equal or superior knowledge of the alleged defect. If a (tenant) knows of a defect, ‘(he) must use all of (his) senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things *14 that might cause hurt to (him).’ [Cits.]” Hall v. Thompson,193 Ga. App. 574 (388 SE2d 381 ) (1989). “Although the issue of the plaintiff’s exercise of due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable.” [Cit.]
Wells v. C & S Trust Co.,
In
Wells,
the plaintiff, having notified the landlord of the lack of illumination in a stairwell, nonetheless attempted to use the stairwell in the dark when there was another route available. See
Culberson v. Lanier,
Davis argues that
Laffoday v. Winn Dixie Atlanta,
Here, while there had been no repair of the problem leak, nothing done by the landlord prior to Davis’ fall distracted him from the hazard created by the dripping water. Rather, knowing that the leak was persistent but unpredictable and that he would not be able to see water on the floor due to the white linoleum, Davis walked directly into the area where the water fell without looking at either the ceiling or the floor. Here, as in Hall v. Thompson, supra at 575, Davis *15 either chose not to be or forgot to be careful of the known specific danger. Davis argues that Hall involved a rotten plank which was always present and therefore distinguishes the present situation where the water was not always present. That the water’s presence was intermittent, however, would mandate more, rather than less, care from the tenant who was aware that, if present, the water would be difficult to see.
Therefore, under these plain, palpable and undisputed facts, the defendants were entitled to summary judgment. See
Hannah v. Hampton Auto Parts,
Judgment reversed.
Notes
Mrs. Davis’ claim for loss of consortium is derivative of Mr. Davis’ claim and will not be further separately addressed.
Although this case predates
Robinson v. Kroger Co.,