171 Ga. App. 299 | Ga. Ct. App. | 1984
Plaintiff, a tenant of the Altama Apartment Complex located in Glynn County, Georgia, brought suit for damages against defendant, one of the partners in a partnership which owns and operates said complex. Specifically, plaintiff contends that on March 18, 1981, she was crossing a grassy area located adjacent to the complex when she stepped into a hole and sustained a serious injury to her left foot; that the defendant was the “occupier” of the vacant lot; that she (plaintiff) was lawfully upon the lot at the invitation of the defendant’s partnership; and that the proximate cause of her injury was the negli
Defendant answered, denying any negligence on his or the partnership’s behalf and further, asserted that the property on which plaintiff sustained her injuries was not owned, occupied or operated by either the complex or the partnership which owns and operates the complex. As such, defendant claimed that neither he nor the partnership owed any particular duty to the plaintiff.
On this basis, defendant filed a motion for summary judgment. The trial court, after considering the briefs and authorities submitted by counsel for the parties, granted defendant’s motion, holding that “[t]he partnership of which the Defendant was a member was neither owner or occupier of the vacant lot where the Plaintiff sustained her injury [and that] [t]herefore, the Defendant, is under no legal duty to an invitee with respect to the condition or use of the vacant lot.” From the grant of summary judgment in favor of defendant, plaintiff appeals. Held:
In her sole enumeration of error plaintiff contends the trial court “erred in holding that there was no overt manifestation of control by [defendant] over the property and in holding that [defendant] had no legal duty to [plaintiff].” Plaintiff asserts that summary judgment for the defendant should not have been granted as genuine issues of material fact exist as to whether defendant was negligent in failing “to exercise ordinary care in keeping the premises [i.e.; vacant lot] . . . safe.” OCGA § 51-3-1 (formerly Code § 105-401). While plaintiff admits that defendant was not the owner of the vacant lot at the time she sustained her alleged injury upon it, she nevertheless contends that due to certain overt acts on the part of defendant or the partnership of which he belongs, there is a question of fact whether defendant exercised such control over the lot to become an “occupier of land” within the meaning of OCGA § 51-3-1, supra, and to warrant the imposition upon him of the reasonable care standard. There is merit to plaintiff’s contention.
“On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. [Cit.]” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429). Construed most favorably to plaintiff, the respondent to the motion, the evidence in the record showed that the defendant
Judgment reversed.