*1 Benjamin Jeffrey Wagner Morrison, Johnston, Pruett, H. R. & appellant. appellee. Baker, A. Mark THE HOUSING AUTHORITY OF CITY OF
A93A2126.SMITH v. ATHENS. (441 SE2d Judge.
Smith, privacy April 7, 1991, On several concrete blocks fell by porch unit owned the Ath- screen wall beside the ens of an Authority. guest apartment’s Housing Smith, the and sister six-year-old brought son, tenant, this action as next friend of her who by Authority’s injured motion for was struck and the blocks. The summary by appeals. judgment granted court, the trial and Smith guests tenant,
Because Smith and her child were
of a
occu-
pied
premises,
pro-
§
on the
and OCGA 51-3-1
status of invitees
applicable
Valley-At-
Winchester v. Sun
vides the
standard of care.
85) (1992).
Assoc.,
lanta
A
may prevail
by showing
judgment
defendant
a motion for
jury
that
is no
sufficient to
issue
at least
there
evidence
create a
plaintiffs
regardless
disputes
case,
one element of the
of fact which
may
Corp. Haskins,
exist as to other elements. Lau’s
While the granted summary trial court judgment on the issue of cause,” “proximate summary judgment right any reason will be Dept. affirmed. Newsome v. Resources, Human 419, App. Ga. of The evidence on the record does not jury create a issue on at least one essential element of Smith’s cause superior of knowledge action: of a defective part condition on the of the Authority. ground “The true liability of is the supe landowner’s rior knowledge perilous condition danger and the therefrom to persons upon coming property. perilous It is when the condition is known to the owner and not person known to the injured that a re (Citations covery permitted.” omitted.) punctuation Win chester, supra, at 141.
The director of Authority maintenance testified that had no actual knowledge any problem Authority with the wall. The in- spected premises 1, about two months before incident, problem and noted no with the wall. Smith’s sister ac- knowledged reported that she never any problem with the wall to the Authority. Smith’s architect premises approximately years one-and-one-half and he any did not offer opinion as to when the deterioration resulting allegedly from the de- fective condition he described would have become apparent. “[Although ordinarily questions of negligence do not lend themselves adjudication, ‘nevertheless the classic rules negligence still apply in this state. impose These rules liability only where the landlord has actual superior or constructive knowledge. say To other- wise would impose be to liability upon absolute landlords for all de- ” fective conditions which could repaired have been injury.’ before the (Punctuation omitted.) Sloan, Harris v. alleges
Smith there were other incidents involving “falling walls apartments,” Authority and she contends the should have known of the hazard. both Smith and her sister testified knew of no other similar incidents. An affidavit from an other tenant stated there were several blocks of a in design different wall apartment. outside her That present tenant was not at the time the blocks were installed. She did not know whether those blocks were of the original why they replaced construction or original blocks, if in fact Likewise, installed at some later time. Smith testified that she saw other walls from which blocks were miss why ing, how, not know when or this had occurred. but she did testimony the other tenant’s affidavit establishes Smith’s nor Neither that replacement was due to the absence or of blocks other walls particularly, any or, more to the defect described hazard or defect prior put of a architect. For a incident to a landlord on notice sufficiently underlying defect, the facts must be similar to those this relevancy ordinarily occurrences is within action. “While the necessary court, sound discretion of the it is that the conditions of of the the compared substantially things showing be similar. Without a similarity, substantial the evidence is irrelevant as a matter of law nothing upon operate.” and there is which the court’s discretion can (Citations omitted.) Wittenberg punctuation Capitol v. 450 As supra, (previous soc., person at 263 incident which another glass panel doorway
walked into and broke similar). in same not suffi ciently missing original There is no evidence to demonstrate whether different blocks other walls were that state because of construction, alteration, vandalism, collision with the or the de showing terioration described Smith’s architect. There is no similarity put substantial sufficient to on notice of an alleged prior question. defect common to all walls to the incident “ protect obligation against Moreover, ‘[t]here is no the invitee *3 dangers or hazards which are known himto or which are so obvious apparent may reasonably expected and he be to discover them.’ Wittenberg, supra, [Cit.]” at 263. While the child him- deposed, self was not Smith testified that she visited her sister with “just every day” children, her about but testified that she never day although incident, looked at the wall on the of the she could right sitting. “look at it” from where she was Both Smith and Smith’s neighbors’ climbing sister testified that knew children had been up Finally, on the wall “all the time” before the incident. Smith’s gaps sister testified that she in saw cracks or the mortar between the already blocks and that the blocks “looked like fall” and were about leaning period off the wall for a of about three weeks Although reported before the incident. Smith’s sister numerous other problems ported Authority repair maintenance, to the or she never re- leaning anyone.
the loose and blocks When the February 1, 1991, last the unit on about two months before incident, the no defects the wall were noted. At the time of the her been at Smith and children had day.”
the sister’s for as much as “half the The children playing “just right had been beside” the and Smith had been watching sofa, them from the for most of that time. daily apart-
Given that the Smiths were almost visitors the acknowledged plain although ment, that Smith the wall was view testimony it, she did not look at and that the sister’s that the blocks “already period about to fall” for of three visibly leaning uncontroverted, it is clear that Smith’s sister and her visi- weeks was were, been, danger posed by of the the tors or should have aware “ occupier duty ‘The or of land is under a to invi- loose blocks. owner keep premises safe or tees to discover and either warn of such invitees in the dangers hidden or defects not observable to exer- (Cits.) However, ordinary duty against cise care. there is no to warn patent dangers may be observed and avoided obvious or which (Cits.)’ Winchester, ordinary supra, care. exercise of [Cits.]” “ ‘ age capacity 142. “[r]egardless This is true ’ ” child, injured person.” injured Id. Winchester who was here, However, testify. younger than the child also did not this court testimony undisputed held that of the child’s mother established allegedly “open, plain defective condition as obvious and view.” Here, allegedly Id. defective condition was observed weeks, period plain sister of about three and was in view of Smith, day. her sister and the children for as much as half the Not view, only plain open was this and obvious condition there has any superior presented knowledge been no evidence on the in granting judg- the landlord. The trial court did not err Housing Authority. ment to the Judgment J., J., Pope, McMurray, Birdsong, C. P. affirmed. J., Johnson, JJ., J., Cooper, Beasley,
P. Andrews and concur. P. Blackburn, J., dissent.
Beasley, Presiding Judge, dissenting. requires
The child “had the status of an invitee to whom the law Anderson, ordinary Cooper v. care to be accorded.” analysis Thus the of what he knew or given should have known is different from that his mother. testimony necessary an examination of her and that of others is be deposed. cause the child has not been There was evidence that several six-year-old bricks or kindergartner blocks from the wall fell on the him with playing while he outside other children. His occurring, sitting mother could see some of it as she was inside close to a watching window and was the children from time to time to be *4 her, go According nothing sure did not the street. to was time, it, touching climbing the wall at the the children were not on it, just playing just next to and the bricks fell. She had not any beforehand, paying seen defect the wall but she was not atten apartment, tion nor up to it when she walked the sidewalk to the was any nothing there reason for her to do so. She knew of she could have prevent done to the incident. aunt, apartment in the for about three child’s who had lived loose,
years, having knew the blocks were noticed this condition about
507 periodic inspection. a week before the defendant’s She not see did the occur, incident and she did think her not sister saw it either. Three appeared fell. had the bricks She noticed that whole wall to be de- caying, several weeks before the incident. Other children climbed on positioned wall, the but hers did not. had seen of She two the bricks leaning gaps fall, little, one, about underneath the other with the cement. The third
two, fell. She the also called defendant’s main- department problems tenance when there were inside the report she but spectors did not the loose bricks because she in- believes the supposed are to check outside. did She not think that the why they children, on bricks would fall the had no she idea fell. maintenance, The defendant’s director of who oversees the in spection, repair, units, and maintenance of the stated the last inspection approxi 1991, 1, of this unit was on which was mately (on 1991). April 7, two months before the bricks fell He stated that no defect noted and that defendant was not of aware defects personally wall, in the but he did not state that he present. that no knew defect was Nor he the did state that wall was inspected. inspection even As to the he did not state that he conducted it and that what was within found was his personal (1a) (167 knowledge. Gately, App. v. Chandler 697) (1969). SE2d
Defendant has not shown that it did know loose not of the condi- of tion or bricks would not have seen had it it looked at the wall inspection premises. when it its conducted of the “Where the owner [premises] inspection [premises] of the is shown to have made of the purpose discovering chargeable therein, [it] defects is with any notice defects which should have been discovered exer- ordinary diligence.” Corp. cise of care and Home Owners Loan Brazzeal, 684, Nor any there bricks on evidence that the child saw or should have seen loose
top superior wall. The evidence does not eliminate knowledge, constructive, either actual or of the landlord stage development at this of the case. See Jackson v. Wal-Mart Stores, Valley-Atlanta The facts in Winchester v. Sun 206 Ga. (1992), significantly. differ There the five- year-old retaining child over wall, fell a static brick which ran the length open entire defective, wall, of one end of an field. The which not height varied one inch one-and-one-half feet ground, running above the and the child fell when to retrieve a ball. open, plain obvious, The wall was invitee, view the perilous the child. Here the condition was loose bricks blocks on masonry height concrete shown. was screen of which defendant has not high enough neighbor’s boys It for the little to climb on to *5 child, bricks, the move- made The not top of the house. get on thus far that There is no evidence injury. which caused ment in the exercise of or- known of the hazard should have knew or child established that the defect as movant has not dinary Defendant care. yard or that the child failed playing the child observable to Mar- See Ga. Farmers’ with it. ordinary care connection exercise (256 613) (1979), (2) Dabbs, v. ket Auth. Winchester, supra at 142. cited cause, proximate the basis the element of it eliminate
Nor does considering this Assuming, for the sake of ruling. for the trial court’s by stabiliz- duty repair not element, landlord breached its that the bricks, shown that this failure to it has not removing the loose ing or being jarred by falling their when proximate cause of act was not the means, bumping the wall normal, such as someone foreseeable some past the street. heavy rumbling or a vehicle warranted and should summary judgment was not grant The M. E. Hunter & Pace v. be reversed. Haskins, Compare Corp. Lau’s joins this dis- Judge
I to state that Blackburn am authorized sent. 14, 1994
Decided 18, 1994. denied March Reconsideration Locklin, appellant. Sherry J. for Elkins,
Fortson, appellee. N. Bentley Griffin, & Robert PROPERTIES, LTD. v. BANK ONE LEOTA A93A1953. LEXINGTON, N.A.
(441 SE2d Judge. Cooper, prop- confirming the sale of real appeal an
This is an order appellee foreclosed on provision, erty. Acting power under a of sale by appellant given debt secured certain deeds to secure property $1,900,000. was the Appellee approximately appellee which totaled purchased property sale and sole bidder at the foreclosure confirmation of $635,000. Thereafter, petitioned the court for appellee and all the foreclosure sale parties stipulated the sale. correct, leaving for technically matters related to the foreclosure by appellee price bid or not the court whether resolution the trial support property. market value equivalent to the fair the value of assessed valuation, evidence which appellee its submitted