Jackie Fitzgerald brought suit against Storer Cable Communica *873 tions, Inc. seeking damages for injuries incurred when he tripped over a televisiоn cable left across his driveway by Storer. The trial court originally denied Storer’s motion for summary judgment. Subsequently, however, a different trial judgе issued a show cause order sua sponte and conducted a hearing on the motion. Following the hearing, Storer’s motion for summary judgment was granted. 1
The record shows that in July 1988 Fitzgerald contracted with Storer for cable television service at his home. When it was installed, сable was left on the ground. The cable ran across the concrete driveway from a telephone pole at the frоnt of Fitzgerald’s lot to the house. The cable was slack, and it shifted whenever a car was driven over it. Despite repeated requests from Fitzgerald and his wife and numerous promises and assurances by Storer, the cable was not buried for approximately 20 months.
Fitzgerald was injured during that time while trying to start a motorcycle in the driveway. He leaned over the motorcycle and grasped the handlebars while a friend pushed the rear of the cycle. Although the cable was usually slack, when Fitzgerald turned to follow the contours of the drivеway the rear wheel of the cycle caught the cable, pulling it taut, and Fitzgerald’s feet then caught on the taut cable. He fell, and the motorcycle fell on him.
This is not a typical “slip and fall” case where liability is premised on ownership or control of the premises. We must apply traditional negligence principles to the facts. Three elements must be proved to establish liability based on negligence: “that the defendant had a legal duty to protect the plaintiff from a foreseeable risk of the alleged hаrm, that the defendant’s act or omission breached this duty, and that there exists a causal connection between the defendant’s сonduct and the alleged injury sufficient to show that the conduct proximately caused the injury. [Cit.]”
Leonardson v. Ga. Power Co.,
Applying those principles, it is clear that the first two elements are рresent. Storer created a dangerous situation by leaving the cable across Fitzgerald’s driveway, and consequently had a duty to act to prevent injury to others, because it would reasonably appear that someone might be injured on the Fitzgeralds’ driveway by tripping over the cable despite using ordinary care. See
Soto v. Roswell Townhomes,
On appeal, Fitzgerald contends the grant of summary judgment to Storer was erroneous. He argues that notwithstanding that he may have had equal or superior knowledge of the danger, and that he may not have exercised due care, Storer should not be insulatеd from liability for its negligence for several reasons.
1. Fitzgerald argues that Storer is liable under the principle set forth in
Richardson v. Palmour Court Apts.,
In Richardson, the plaintiff tenant fell on a poorly-lit stairway at her apartment after making repeated unfulfilled requests that the landlord illuminate the stairwell. Richardson is distinguishable, however, because it involved a landlord-tenant relationship. A landlord has a statutory duty to keep the premises in repair. OCGA § 44-7-13. Allowing the tenant’s requests for repairs to insulate the landlord from liability on the ground of “equal knowledge” would subvert the policy behind the statute. Nо similar statutory duty or public policy exists here. The principle set forth in Richardson is therefore not applicable.
Moreover, even in the context of leased premisеs, one may not recover for damages resulting from a known defect that is open and obvious, except where the “rule of nеcessity” applies, i.e., where no other choice exists but to use the area known to the tenant to be defective.
Hull v. Mass. Mut. Life Ins. Co.,
Fitzgerald was aware of the cable’s approximate location on his driveway for about twenty months, and he drove over it about five times each day. It was incumbent upon him to take ordinary care to avoid tripping over it. He did so on other occasions. Fitzgerald acknowledged that when mowing thе lawn he and other members of his family accommodated the presence of the cable by moving it manually so as to avoid running thе lawnmower over it. The width of the cable was less than that of a pen. No reason appears why Fitzgerald could not similarly havе avoided this fall simply by choosing to start the motorcycle below the point where the slender cable crossed his driveway. According to the diagram drawn by Fitzgerald at deposition, ample room existed for him to have done so. Instead, knowing of the presenсe of the cable and the danger it presented, he failed to *875 exercise ordinary care for his own safety and fell, injuring himself.
2. In a related argument, Fitzgerald also asserts that a lesser standard of care was required of him because he was “distracted” from watching where he was going. See
Wal-Mart Stores v. Hester,
3. Fitzgerald also appears to argue that although he was aware of the
presence
of the cable he did not fully appreciate the
risk
it posed. See
Atkinson v. Kirchoff Enterprises,
4. We need not consider Fitzgerald’s argument regarding punitive damаges, since no compensatory damages were awarded. An award of punitive damages in the absence of any award оf compensatory damages is improper as a matter of law.
Cameron v. Moore,
Judgment affirmed.
Notes
Although not raised by the parties, we note that because the denial of a motion for summary judgment is not res judicata, reconsideration of the motion was proper.
Gaskins v. A. B. C. Drug Co.,