Rustin Stamp and Coin Shop, Inc. (Rustin Stamp), brought an action for damages against Ray Brothers Sheet Metal Company, Inc. (Ray Brothers), and Lonnie Smith Service Co., Inc. (Smith Service). The complaint alleged that defendants were negligent “in doing the repair work to the roof’ of the building where plaintiff’s business was located in that on May 16, 1983, water leaked through the roof causing damage in excеss of $10,000 to plaintiff’s inventory, supplies and furnishings.
Both defendants answered, denying the material allegations and setting out various defenses. Discovery proceeded and included interrogatoriеs, requests for admissions and depositions of key witnesses. Each defendant moved for summary judgment which was heard but no order was entered. Defendants amended their motions and subsequently another hearing was held at which the trial court granted the motions. Rustin Stamp appeals from that judgment.
Rustin Stamp was a tenant in a shopping center. Its business was located on the first floor of a two-stоry building (the upper level building) which houses various other shops and businesses. Ray Brothers was employed by the shopping center’s management to re-roof part of the upper level building. Thе job encompassed removal of the old roof, including covers for ventilators and “pitch pockets.” This resulted in holes in the roof which were covered over during the roofing prоcess by layers of fiberglass felt and asphalt until the roofing job was substantially completed. Then the openings would be cut out and new coverings would be fabricated and placed ovеr them. The job supervisor for Ray Brothers explained that, in the meantime, since they could not be easily observed, the felt covered holes were marked by wood or buckets placed upside down over them. The roofing job begun on May 9 entailed over a week’s work and was not completed by the close of work on Friday, May 13. On leaving the job site that afternoon, thе supervisor testified that, as was his custom, he placed buckets over the concealed openings. The supervisor admitted he could not remember placing a bucket over a particular spot but related that his normal procedure was to cover each one with a bucket.
On that same day, Rustin, the president of Rustin Stamp, noticed his air conditioning was not supplying cool air. So on Saturday, May 14, when he saw employees of Smith Service performing air conditioning repairs for the owner of another business, he requested them to inspect his unit on the roof. After obtaining approval from *31 Smith Service officials, the employees climbed to the roof via a permanent ladder inside the building. Rustin and the owner of the other business either followed them immediately or shortly thereafter. It was discovered that a copper tube on the air conditioning unit had been crimped (presumably from the unit being moved) allowing freon tо escape. All of the witnesses testified there were no buckets in the vicinity of the air conditioner. One of the Smith Service workers stepped in a hole, perforating the felt. There wаs conflicting proof as to whether Rustin heard the worker exclaim and knew of the incident when it occurred or learned of it later. In any case, according to Rustin, he inquired about whethеr the damaged spot needed repair and was told by one of the Smith Service employees that it was a drain for water on the roof. Rustin stated he was unable to tell if the cut went totаlly through the felt and relied on the statement of the repairmen. None of the witnesses were able to ascertain the extent of the damage and one thought it might be only an indentation in the felt.
It rained early on the morning of May 16 and water poured into the Rustin Stamp Shop. A maintenance employee for the shopping center temporarily patched the newly punctured hole on the roof, but considerable damage had already occurred to the merchandise and furnishings.
Counsel for Rustin Stamp contends that Ray Brothers was negligent in damaging the air сonditioner while moving it and in failing to warn persons on the roof of the existence of hidden openings which would not support them. The negligence attributed to Smith Service is the failure to reсognize the extent of the damage caused by the workman stepping in the hole, the misidentification of the opening as a drain and the communication of the erroneous information to Rustin. Held:
1. Negligence is not actionable unless it is the proximate cause of the injury complained of.
Stallings v. Ga. Power Co.,
“The question of proximate cause depends upon the facts of eaсh particular case, and, in ascertaining in a particular case what was the proximate cause of the injury, the conclusion reached depends upon whether the injury alleged was such a natural and probable consequence, under the circumstances of the case, as that it might and ought to have been foreseen by the wrong-doer as likely to ensue from his act.”
Valdosta Street R. Co. v. Fenn,
Because of the necessity of establishing that defendant’s negligence caused injury tо the plaintiff, “[i]f the cause was remote and furnished only the condition or occasion of the injury, it was not the proximate cause thereof.”
Whitaker v. Jones &c. Co.,
There was proof offered which would sustain a finding that Ray Brothers was negligent in not marking an opening which was unsuрported and covered only with layers of felt and asphalt. However, can this negligence be considered the proximate cause of Rustin Stamp’s damages? It required several additional factors for injuries to the plaintiff to arise. First, the hole’s covering had to be breached by an employee of Smith Service. It was arguably foreseeable that without apрropriate warning someone might step in the hidden opening. However, this had to be followed by inaction on the part of all concerned in either recognizing the problem and correcting it or notifying Ray Brothers or anyone else for that matter of the situation before Ray Brothers returned on Monday. Then, of course, there had to be rain.
Considering the circumstances in their totality, the causal connection between defendant’s conduct and the resulting injury is too remote to countenance a recovery. It was not error to grant Ray Brothers’ motion for summary judgment.
2. Here there are no allegations or contentions that Smith Service through its employees perpetrated a fraud on plaintiff. Fraud must be pled with particularity. OCGA § 9-11-9 (b). Thus, it is not in issue here.
This case involves instead a situation where neither plaintiff nor defendant recognized the problem created. “One failing to inform himself, but having equal opportunity of learning the truth, must suffеr the consequences of his neglect.”
Blanchard v. West,
Where plaintiff brought an action predicated on a misstatement regarding whether there was sufficient antifreeze to withstand a freezing temperature which eventualized, this court held that a mere error in opinion affords no basis for a cause of action, especially when it was not alleged that the speaker knew at the time his statement was erronеous.
DeMayo v. Walton,
The proof afforded the plaintiff no grounds for recovery against Smith Service and summary judgment was properly granted it.
Judgment affirmed.