PAJARO et al. v. SOUTH GEORGIA BANK.
A16A1125
Court of Appeals of Georgia
October 20, 2016
Reconsideration denied November 4, 2016.
793 SE2d 209
McFADDEN, Judge.
Schreeder, Wheeler & Flint, Miсhael D. Flint, Shira A. Crittendon, for appellant. Hunter, Maclean, Exley & Dunn, Kirby G. Mason, Kate C. Lawson, for appellee.
On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
In January 2010, Pajaro and the landlord entеred into a lease of the premises. As to repairs, the lease provided:
During the lease term, Tenant shall make, at Tenant‘s expense, all necessary repairs to the Leased Premises. Reрairs shall include such items as routine repairs of floors, wall, ceilings, and other parts of the Leased Premises damaged or worn through normal occupancy, except for major mechanicаl systems or the roof, subject to the obligations of the parties otherwise set forth in this Lease. Landlord at its own expense shall make all necessary repairs to major mechanical systems, including but not limited to HVAC Units, plumbing and septic system.
On May 3, 2012, as Pajaro stepped from the second floor space onto the back exterior staircase, the staircase collapsed, causing Pajaro to fall more than 15 feet to the ground and injuring him. Before that point, Pajaro had not perceived any structural or safety problem with the staircase.
The appellants’ expert witness, a licensed commеrcial and residential contractor, opined that construction defects had caused the staircase to collapse; he opined that the staircase had been built with nongalvanized nails that had rusted over time, and that portions of wooden posts had not been properly sealed and caulked, leading them to rot. It is undisputed that the landlord was not in possession of the property, was nоt involved in the construction of the staircase and, at the time of Pajaro‘s fall, had never made any repairs or modifications to the staircase. The appellants’ expert witness opined, however, that “the unsafe conditions of the staircase could and would have been discovered if the staircase had been completely inspected by the [landlord] when it acquired title to the prоperty[.]”
Because the landlord was not in possession of the property, it is “subject to tort liability only under the provisions of
The trial court granted summary judgment on claims for defective construction, failure to repair, failure to warn, and loss of consortium.
1. Defective construction.
The general rule is that “the liability of a landlord for defective construction exists only in cases where the structure is built by [the landlord] in рerson or under [the landlord‘s] supervision or direction.” Martin v. Johnson-Lemon, 271 Ga. at 124 (2) (b) (citations and punctuation omitted). Our courts have recognized a limited exception to this rule in circumstances where the defective structure wаs “constructed by a predecessor in title, and the landlord knew or by the exercise of reasonable diligence could have known of its improper construction before the tenancy was created[.]” Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504) (1988) (citation and emphasis omitted). In such circumstance, the landlord “would be answerable to the tenant . . . for injuries sustained by reason of [the landlord‘s] failure to put the premises in a safe condition, if the person sustaining the injuries could not have avoided the same by the exercise of ordinary care.” Id. (citation and emphasis omitted). Our Supreme Court has explained that, although this limited exception “[а]t first glance . . . would appear to contradict the precise terms of
In his affidavit, the appellants’ expert witness opined that a pre-purchase structural inspection would have led the landlord to discover the defects that, in the expert witness‘s opinion, caused the staircase to collapse. The trial court held that this opinion was conclusory and did not create a genuine issue of material fact as to whether the landlord had constructive knowledge of the defects, noting that the expert witness was not a home inspector and that his opinion “provided no insight into inspection practices.” The trial court apparently considered the expert witness‘s opinion but found it irrelevant to the issue of the landlord‘s knowledge, rather than rejecting the expert witness as unqualified or his testimony as failing to satisfy the requirements of
We are not convinced that the expert‘s opinion is irrelevant. The expert was a licensed commercial and residential contractor. Unlike in Gainey, 287 Ga. App. at 532 (2) (b), cited by both the trial court and the landlord, here the apрellants’ expert opined that the defects that led to the collapse of the staircase would have been discovered during an inspection. Although the expert was not himself a home inspeсtor, he was an expert in residential construction. It was for the jury to determine whether to credit his opinion that an inspection would have disclosed the construction defects. Likewise, although the landlоrd challenges the opinion because the expert based it on photographs taken after the collapse, it was for the jury to assess the foundation of that opinion. “[A]ny deficiencies in the expert‘s opinion go to the weight and credibility of his testimony.” Toyo Tire North American Mfg. v. Davis, 333 Ga. App. 211, 217 (2) (775 SE2d 796) (2015). If a jury were to find the opinion credible, the jury could find that the landlord, in the exercise of ordinary care, could have discovered the construсtion defects that caused the staircase to collapse. Accordingly, summary judgment is not appropriate as to the defective construction claim.
2. Failure to repair.
An out-of-possession landlord‘s “[l]iability for failure to repair arises only in instances where there is a duty to repair and notice has been given of the defect.” Gainey, 287 Ga. App. at 530 (2) (a) (citation and punctuation omitted). The parties dispute whether their lease assigned to Pajaro the duty to repair the staircase. See Rainey, 255 Ga. App. at 300 (“nothing prohibits a landlord of commercial premises from assigning by contract its duty to repair“) (citations omitted); Groutas v. McCoy, 219 Ga. App. 252, 254 (1) (464 SE2d 657) (1995)
We need not decide whether the landlord assigned its duty to repair the staircase, however, because even if the landlord retained that duty, the appellants “offered no evidence that anyone notified [the landlord] of a problem with the staircase or requested a reрair, and [the landlord] specifically testified that [it was not aware of any defect in or hazard posed by the staircase].” Gainey, 287 Ga. App. at 530-531 (2) (a). Pajaro testified that the only time he mentioned the staircase to his landlord was during his initial walk-through with the landlord, when he asked for the staircase to be painted. “Under these circumstances, [the appellants] failed to raise a question of fact as to liability for failure to repair.” Id. at 531 (2) (a).
3. Failure to warn.
The trial court properly concluded that failure to warn is not a ground upon which an out-of-possession landlord can be held liable under
4. Loss of consortium.
The right of Pajaro‘s wife to recover for loss of consortium is dependent upon Pajaro‘s right to recover against the landlord. Groutas, 219 Ga. App. at 254 (2). Because genuine issues of material fact preclude summary judgment on Pajaro‘s claim for defective construction, he is not entitled to summary judgment on his wife‘s claim for loss of consortium.
Judgment affirmed in part and reversed in part. Miller, P. J., and McMillian, J., concur.
Decided November 4, 2016.
Farah & Farah, Alan D. Tucker, James R. Francis, for appellants. Ellis, Painter, Ratterree & Adams, Sarah B. Akins, Megan U. Manly; Dubberly & McGovern, Joseph D. McGovern, for appellee.