S17A0811, S17X0812. JOHNSON STREET PROPERTIES, LLC v. CLURE; and vice versa.
S17A0811, S17X0812
Supreme Court of Georgia
September 13, 2017
302 Ga. 51
HUNSTEIN, Justice.
This case stems from a negligence action filed by Appellee/Cross-Appellant Cynthia Clure for injuries she sustained after being struck by a tree limb while on a premises belonging to Appellant/Cross-Appellee Johnson Street Properties, LLC (hereinafter “JSP“). Clure alleged that JSP failed to maintain a safe premises for its invitees. JSP filed a notice to apportion fault to a non-party and moved for summary judgment, alleging that no genuine issue of material fact existed regarding its negligence. In response, Clure filed a motion for partial summary judgment, alleging that Georgia‘s Apportionment Statute (
The trial court denied JSP‘s summary judgment motion, finding that genuine issues of material fact existed regarding its negligence. As to Clure‘s partial motion for summary judgment, though the trial court found Georgia‘s
Both parties appealed. For the reasons that follow, we affirm the judgment of the trial court regarding JSP‘s motion for summary judgment, reverse the judgment of the trial court regarding JSP‘s notice of non-party fault, and vacate and remand the trial court‘s order regarding Clure‘s constitutional claim on cross-appeal.
Case No. S17A0811
1. JSP raises two issues on appeal, contending that the trial court erred in denying its motion for summary judgment and granting partial summary judgment to Clure concerning JSP‘s notice of non-party fault.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
(a) Motion for Summary Judgment
JSP alleges that the trial court erred in denying its motion for summary judgment on Clure‘s negligence claims because: (i) JSP had no knowledge of the hazard; (ii) Steve Wilbur, the person who removed the limb, was not an agent or employee of JSP acting within the course and scope of his employment at the time of the incident; and (iii) Clure had superior knowledge of the hazard, failed to exercise ordinary care for her own safety, and assumed the risk by
The record shows that, at all relevant times, Clure was a tenant of Johnson Street Apartments, a complex in Bremen, Georgia, that was owned and operated by JSP. JSP was owned and managed by Dan and Elaine Cartwright, and their two sons, Chris and John.
Sometime in early 2013, a limb fell onto JSP‘s property from a tree located on a neighboring lot. Other tree limbs had fallen onto the property during storms in the past, including some from the adjacent property, and the Cartwrights took action to remove those branches when such instances occurred. In this case, a limb fell during a storm and became suspended between the gutter of one of JSP‘s apartment buildings and some brush. The parties agree that the suspended limb was an open and obvious condition, yet the length of time the limb remained suspended is disputed by the parties, ranging anywhere from a few days to a few months. Clure and her neighbors were aware that the limb was stuck on the gutter, and Clure had gone so far as to warn other tenants to stay away from the limb because it was dangerous and could fall. Clure testified
On the day of the incident, Clure discussed the limb with Steve Wilburn, a fellow tenant who sometimes worked as a maintenance man for JSP. Wilburn and Clure walked over to the area of the hazard, at which time Wilburn took a rope and/or string and threw it over the limb. Clure testified that she heard the gutter tear and told Wilburn to stop so she could warn the tenant inside the apartment, who suffered from mental health issues, about the loud noise. As she walked out of the apartment, Clure told Wilburn “Hold on. If you‘re going to do anything, just wait.” She saw Wilburn pulling on the rope in a downward motion and turned to walk away from the same; though the parties dispute how far away Clure was from the hazard, they agree that the limb swung down from its perch and struck her, causing injuries.
(i) JSP‘s Knowledge
First, JSP contends that it had no knowledge of the hazard prior to the incident at issue. It is well established that Georgia premises liability law holds owner/occupiers of land liable for damages suffered by an invitee on their property where the invitee‘s injuries were
(Citations omitted; emphasis supplied.) Robinson v. Kroger Co., 268 Ga. 735, 740 (493 SE2d 403) (1997). In other words, an owner/occupier is generally on constructive notice of what a reasonable inspection conducted in the exercise of ordinary care would reveal. See Ferguson v. Premier Homes, 303 Ga. App. 614, 617 (695 SE2d 56) (2010); Hagadorn v. Prudential Ins. Co., 267 Ga. App. 143, 146 (598 SE2d 865) (2004). However, “one is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for
Construing the evidence in favor of Clure, genuine issues of material fact remain as to whether JSP had either actual or constructive notice of the hazardous condition on its property. First, as discussed in more detail below, there is a genuine issue of material fact as to whether Wilburn acted as JSP‘s agent when removing the limb; if so, then any knowledge about the hazard posed by the limb and its removal could be imputed to JSP. Moreover, there is a question of fact as to whether JSP knew about the limb even aside from Wilburn‘s knowledge. As discussed above, there is a dispute in the evidence as to whether Clure notified the property owners of the presence of the limb by leaving them voicemails concerning the tree limb. Also, while there is evidence that the owners conducted inspections of the property after major storms, there is a dispute as to whether: (1) a reasonable inspection was conducted between the time the limb in question became suspended (which evidence suggests may have occurred after a major storm) and Clure‘s injuries; and (2) whether a sufficient amount of time existed for JSP to discover the hazard prior to Clure‘s injuries. Indeed, the record is filled with contradictory sworn testimony from
(ii) Steve Wilburn‘s Employment Status
JSP next contends that the trial court erred in denying summary judgment because Steve Wilburn was not an employee acting within the course and scope of his employment at the time he decided to remove the tree limb from the gutter; therefore, according to JSP, Wilburn‘s actions cannot be imputed onto JSP under the doctrine of respondeat superior.
Typically, “[q]uestions of the existence and extent of an agent‘s authority are generally for the triers of fact. When an alleged principal, by acts or conduct, has knowingly caused or permitted another to appear as his agent, he will be estopped to deny the agency, to the injury of third persons.” (Citations and punctuation omitted.) Williams v. Dept. of Corrections, 224 Ga. App. 571, 576 (481 SE2d 272) (1997). Furthermore, while
[a] master rarely employs a servant with the expectation that he will commit a negligent or wilful tort . . . if the act is done in the prosecution of the master‘s business, the master will be liable . . . . The test is whether the tort was done within the scope of the actual transaction of the master‘s business for accomplishing the ends of his employment. If a servant steps aside from his master‘s business
to do an act entirely disconnected from it and injury to another results, the master is not liable. Where the tort is entirely personal to the employee, it is not within the scope of his employment and the employer is not liable.
(Citations omitted.) Reynolds v. L & L Mgmt., 228 Ga. App. 611, 612 (492 SE2d 347) (1997).
Here, the evidence shows that a question of fact remains as to whether Wilburn was an employee working within the course and scope of his employment at the time of the incident. It is undisputed that Wilburn had an on-again-off-again working relationship with JSP as the maintenance man for the property at issue. This is emphasized by James Cartwright, wherein he admitted that during 2013, JSP would have Wilburn perform tasks around the property “as needed.” Furthermore, there is evidence that Wilburn held himself out as the apartment complex‘s maintenance man to other tenants as late as March 2013. During that same time period, Elaine Cartwright instructed at least one tenant that she could “go to Cynthia [Clure] or Steve [Wilburn]” if she had any issues with her apartment. This evidence creates an issue of fact as to whether Wilburn was an agent of, or employed by JSP at the time of the incident.
As to whether Wilburn was working within the course and scope of his
(iii) Clure‘s Knowledge/Negligence
Finally, JSP argues that Clure‘s knowledge of the hazard created by the suspended tree limb was equal to or greater than that of JSP‘s, therefore precluding her from recovering on her negligence claims. We agree that the record shows Clure was clearly aware of the tree limb and testified that she
JSP also alleges that Clure was contributorily negligent as she failed to exercise ordinary care for her own safety in avoiding the falling limb. It is well established that “the ‘routine’ issues of premises liability, i.e., the negligence of
Taking into account all the circumstances existing at the time and place of Clure‘s injuries, and construing the evidence in favor of Clure, we cannot say that the evidence of Clure‘s alleged contributory negligence is plain, palpable and undisputed. Here, the record shows a dispute as to Clure‘s proximity to Wilburn and the tree limb at the time he was attempting to remove the hazard. Clure also testified that she was walking away from the hazard at the time it fell. Significantly, Wilburn testified on deposition that the tree limb fell so quickly, he was unsure that Clure had enough time to see it fall, raising a question as to whether Clure could have avoided the falling limb in the first place. Consequently, we conclude that a jury question remains as to whether Clure exercised ordinary care for her own personal safety on the day of the incident.
Finally, JSP argues that Clure assumed the risks associated with the limb removal by entering “the danger zone” as Wilburn was removing the limb. Assumption of the risk bars a plaintiff‘s recovery when a defendant establishes
We agree with the trial court that genuine issues of material fact remain as to whether Clure had actual knowledge of, and appreciated the risks associated with, the danger related to Wilburn‘s removal of the tree limb from its perch, and voluntarily exposed herself to those risks. Once again, because there are disputes in the evidence as to what occurred immediately preceding the limb‘s fall — namely, Wilburn‘s actions, Clure‘s location at the time in
Based on the foregoing, the trial court did not err in denying JSP‘s motion for summary judgment on Clure‘s negligence claims.
(b) Apportionment Claim
JSP filed a notice of non-party fault pursuant to
Pursuant to
While it is the defendant‘s burden to establish a rational basis for apportioning fault to a non-party, whether the non-party contributed to the alleged injury is a question of fact for a jury to decide. See Six Flags Over Ga. II, L.P. v. Martin, 335 Ga. App. 350, 364-365 (780 SE2d 796) (2015), rev‘d on other grounds, Martin, 301 Ga. at 341; Couch v. Red Roof Inns, Inc., 291 Ga. 359 (1) (729 SE2d 378) (2012). Finally, “it is axiomatic that questions regarding proximate cause are ‘undeniably a jury question’ and may only be determined by the courts ‘in plain and undisputed cases.‘” (Citations omitted.)
Here, there is evidence that: lay witnesses saw numerous dead or decaying trees on the Smiths’ property prior to the incident at issue; limbs from other dead trees located on the Smiths’ land had fallen onto JSP‘s property prior to the incident at issue; John Cartwright had a conversation with Mr. Smith concerning the removal of dead trees from the Smiths’ property, and Mr. Smith subsequently sought bids for the trees’ removal; the limb which caused Clure‘s injuries had fallen from a tree on the Smiths’ property that was conspicuously dead and decaying prior to the incident; and that at least one of JSP‘s tenants saw the limb at issue after it had fallen and noticed it was dead. Furthermore, as discussed above, a question of fact remains as to how long the limb had been suspended on the apartment gutter prior to this incident.
Based upon the record before this Court, there are clearly questions of fact as to: whether the Smiths had notice of the dead and decaying trees on their property, which could impart a legal duty on them to act, see Willis v. Maloof, 184 Ga. App. 349 (2) (361 SE2d 512) (1987); and whether Clure‘s injuries were reasonably foreseeable under the circumstances of this case. Accordingly, the
Case No. S17X0812
2. In her cross-appeal, Clure alleges that the trial court erred by upholding Georgia‘s Apportionment Statute (
Because Clure lacked standing to bring a summary judgment motion regarding the constitutionality of Georgia‘s Apportionment Statute as it applies to non-parties, the trial court lacked jurisdiction over this matter and
Judgment affirmed in part and reversed in part in Case No. S17A0811.
Judgment vacated and case remanded with direction in Case No. S17X0812.
Hines, C. J., Melton, P. J., Benham, Nahmias, Blackwell, Boggs, Grant, JJ., and Judge Jane C. Barwick concur. Peterson, J., not participating.
Negligence. Haralson Superior Court. Before Judge Murphy.
Bovis, Kyle, Burch & Medlin, W. Randal Bryant, Wayne S. Tartline, for appellant.
Slappey & Sadd, James N. Sadd, Edward M. Wynn III, for appellee.
Hawkins, Parnell, Thackston & Young, Christopher S. Keith, Charles B. Carmichael, amici curiae.