*1 A17A0418. MARTIN v. LEDBETTER et al. A17A0419. COLSTON v. LEDBETTER et al. Judge. Reese, companion cases,

In these James Martin and David Colston appeal summary judgment from the trial court’s denial of to them personal injury complaint1 Appellees, on a filed David and complaint, Appellees alleged Lauren Ledbetter.2 In their that the Appellants negligently inspections conducted of work that had been performed gas system on their water heater’s exhaust ventilation (hereinafter, vent”) negligence, that, “exhaust as a result of such exposed high their children had been levels of carbon monoxide.3 appeal order, On from the court’s contend that the trial denying summary judgment, arguing, court erred in their motions for legal alia, inter that there was no evidence to show that duty inspect follow,infra, the exhaust vent. For the reasons that we reverse. light Appellees,

Viewed in the most favorable to the as non- following Throughout movants,4 the record shows the facts. the rele- period, Appellants, employed Colston, vant time by Martin and were Rome-Floyd Building Inspection Department (“Department”); Building employed Official, Martin was an Assistant and Colston was Building Inspector. According affidavit, as a to Martin’s the ordi- Floyd County City nances and codes of and the of Rome that projects pre-authorized by permit all home renovation be issued Department. completed, permitted the pass Once renovations had to inspection by inspector employed by Department.

an an Appellees Helbing Builders, In contracted with Inc. (“Helbing”), structural, electrical, mechanical, for renovations to the plumbing components Helbing applied of their home. for a building permit Department. permit application from the The stated Helbing’s Appellees’ home, intention to “remodel” the but did not specify Helbing going perform. Helbing what work was hired a complaint damage property. granted The also asserted a claim for The trial court however, Appellants, Appellees on the claim to the and the have not appealed ruling. complaint parents The filed their on their own behalf and as the and natural guardians of their three minor children. renovations, companies performed The also named as defendants the Builders, Inc., Helbing Plumbing Company. Appellees subsequently and Crider settled against companies prejudice. their claims these and dismissed the claims with Co., Royal nity (705 SE2d 223) See R & R InsulationSvcs. v. Indem (2010). *2 subcontractor, Crider to the Plumbing Company (“Crider”), perform renovation, work for the and Crider obtained a plumbing “plumbing” from the the work Crider on permit Department. Among performed the house was the installation of an exhaust vent for the Appellees’ water heater. Crider installed the exhaust vent so that it ran from the water heater in the basement to an a few feet below the opening second floor window of the bedroom of one of the children. Appellees’ 27, 2010,

On Colston conducted a final of the January inspection home renovation. of the renovation Appellees’ Although portions failed the those did not include the water heater inspection, portions or its exhaust vent. The next Martin conducted a second final day, of the items that had failed Colston’s inspection inspection. affidavits, In their both averred that did not Appellants they the water heater or its exhaust vent because the inspect Department had not issued a work on those items. permit authorizing Further, neither the nor their renovation contractors ever Appellees the the water heater or its exhaust requested inspect vent.

In of the Atlanta Gas August representative Light notified the that their exhaust vent had been Company Appellees installed and had to be moved. The immedi- improperly Appellees a medical as to whether their children ately sought opinion might have been to harmful levels of carbon monoxide due to the exposed results, of the exhaust vent. Based the improper placement filed claims the renovation Appellees negligence against companies, and Crider. also filed claims Helbing They negligence against Colston, Martin and in their individual assert- Appellants, capacities, that had breached their ministerial ing they duty properly inspect the exhaust vent. identical,

The filed but almost motions for separate, that had failed to show summary judgment, asserting act, i.e., that a ministerial vent, and, therefore, exhaust claims were barred by official also that immunity argued Appellees’ claims were barred statutes of limitation and that applicable were unable to an essential element of their prove claims. The trial court the motions in granted part, ruling claims for were barred property damage applicable statute of limitation. The trial court denied on claims, the evidence of record remaining ruling presented issues of fact that resolution This Court disputed by jury. review, granted Appellants’ applications interlocutory *3 these direct followed. appeals 9-11-56,

To at under OCGA prevail summary judgment § must demonstrate that there is no moving party genuine facts, issue of material fact and that the viewed undisputed in the most favorable to the warrant light nonmoving party, as a matter of A defendant do this judgment may law.[5] documents, affidavits, the court showing deposi- tions and other evidence in the record reveal that there is no evidence sufficient to create a issue on at least one jury essential element of a case. If there is no evidence plaintiff’s sufficient to create a issue as to essential genuine claim, element of a that claim tumbles like a house plaintiff’s of cards. All of the other of fact are rendered disputes immaterial. A defendant who will not bear the burden of at trial need not proof affirmatively disprove nonmoving instead, case; the burden on the party’s party moving be out summary judgment may discharged by pointing affidavits, reference to the and other documents depositions in the record that there is an absence of evidence to support case. If the nonmoving party’s moving party discharges burden, this cannot rest on its nonmoving party plead- but rather must evidence rise to ings, point specific giving a triable issue.6

Thus, in the instant case would be entitled to sum- Appellants if could show that there is an absence of evidence mary judgment they essential element of the claim.7 prove any Appellees’ negligence mind, With these in we turn now to the guiding principles Appellants’ claims of error. specific

1. The contend that the trial court erred in denying their motions for on the summary judgment Appellees’ negligence claims, that the failed to evidence that arguing present any act, showed the a ministerial legal duty i.e., the exhaust vent.8 We agree. (c).

5OCGA 9-11-56 6 § (punctuation omitted). R & R Insulation and footnote 7 See id. argument general raised this in the context of their contention that Richardson, immunity. were entitled to based on official See Gilbert v. (6) (452 (1994) (“The immunity... provides Ga. doctrine of official that while acts, public employee may personally negligent may officer or be liable for his ministerial he wilful, wanton, discretionary not be held liable for his acts unless such acts are or outside the Dollar, scope authority.”) (citations omitted); of his see also Grammens v. *4 that,

It is axiomatic state a cause of action for negligence, “[t]o must establish the essential elements: plaintiff following (1) legal a breach of this an and a causal duty; (2) duty; (3) injury; (4) Moreover, connection between the breach and the injury.”9 threshold issue in cause of action for is [t]he whether, extent, and to what the defendant owes the plain- tiff a of care. Whether a exists which duty duty liability can be based is a of law. In the absence of a question legally there can be no fault or cognizable duty, negligence.10 case, In this the evidence shows that the home undisputed that Martin and Colston on behalf of the inspections performed were the and Department governed by Department’s practices pro- affidavit, that, cedures. In an Martin averred “[although] Depart- ment is for home it is authorized and responsible inspections, only for which a has been issued inspect projects permit [by that, The affidavit the issuance Department].” explained “[w]ithout of a cannot otherwise be aware of what permit, Department of a home construction specific aspects project require inspection.” Martin restated these facts in his “Statement of Material specific Facts To Which There Is No Genuine Issue To Be Tried.” In its stated did not response, affirmatively dispute those facts. In so conceded that doing, Appellees effectively had no the work that had been duty inspect performed on the exhaust vent unless had issued a Department permit fact, brief, authorized such work. In in their specifically appellate made the concession: following unambiguous If the issued in connection permits Department with the renovation of home covered the work ventilation, on the water heater then performed Appel- a ministerial the ventilation.... duty lant^] [had] 775) (2010) (“Where policy requiring specified SE2d there is an established an official to take situation, specified policy part action in a creates a ministerial on the of the official to Atlanta, specified task.”) (citations omitted); City Common v. 279 Ga. Cause/Ga. 480, absolute, (2) (614 761) (2005) (“A commonly simple, SE2d ministerial act is one that is definite, exist, arising proved requiring merely and under conditions admitted or and specific duty.”) (citation punctuation omitted). execution of a App. (2) (punctuation omitted). R & R Insulation 307 Ga. and footnote Reese, (1) (a) (684 SE2d 279) (2009) (citations Ford Motor Co. v. DaimlerChrysler Clemente, punctuation omitted). (2) Accord Motors Co. v. 737) (2008). *5 212 permits gas

If the did not authorize work on the exhaust Appellants] simply vent, the had no ministerial to inspect the vent. necessarily prove that,

It follows in order to an essential element of negligence legal duty claim, i.e., their inspect that the to Appellees required vent,11

the work on the exhaust were specifically by permit to show that such work was authorized issued Department.12 Appellees Although failed to meet that threshold burden. they attempted copy permits by Helbing to obtain a of the obtained by filing “Open Request”13 Depart- and Crider an Records with the Department only provided Helbing’s appli- ment, the two documents: permit Appellees’ “City home, cation for a to “remodel” the and a of Application showing Department Rome Profile” that the had issued “plumbing” permit August in 2009. Neither document showed that Department permit had issued a that authorized work on the Having copy permit exhaust vent. failed to obtain a of such through Open Request, Appellees appear their Records to have any copythrough abandoned further efforts to obtain a other means.14 example, For there is no evidence that the took action compel Department comply Open Request to to with the Records provide “plumbing” permits;15 they the “remodel” and subpoena compel Department, obtained a their renovation company (Helbing), plumbing company (Crider), Appel- the permits;16 or the produce Department, lants to Helbing, or that served the request produce

Crider, or the with a permits.17 pretermitting deposition And, whether an affidavit or testimony Helbing competent, of either or Crider would have been 11 Co., (2); App. See R & R Insulation at 426 Ford Motor 300 Ga. at 84 Co., (1) (a); DaimlerChrysler (2). Motors 12 Willis, See generally Ga.App. 203(729 SE2d 643) (2012) (“[I]n Howell v. the case inspection!,] specific liability inspector’s appearance of an act from which arises is not an particular inspection. [Instead,] liability at a site to conduct an must arise from the acts the inspector perform during inspections.”) (citation punctuation omitted). was seq. See OCGA 50-18-70 et § (general provisions governing scope discovery). See OCGA 9-11-26 and methods of § (enforcement provisions); (penalties noncompliance See OCGA 50-18-73 50-18-74 for §§ Open Request). with Records (subpoena production documents). See OCGA 24-13-23 for of § (request production documents); (notice pro See OCGA 9-11-34 24-13-27 §§ that, duce). We note that there is no evidence in the record when the filed their possession, custody, permits claims in had or control over Department (a) (1). had been issued in 2009. See OCGA 9-11-34 §

213 admissible evidence to show that obtained permits they specifi- vent,18 authorized their work on the exhaust cally Appellants failed to such evidence. produce

Thus, have shown that failed to Appellants “evidence sufficient to create a issue on at least one present jury case,” i.e., essential element of that Appellees’] Appellants [the the exhaust vent.19 It follows that the Appellees’ claim “tumbles like a house of cards” and 11of the other “[a] of fact are rendered immaterial.”20 disputes we conclude that the trial court erred in Consequently, denying remittitur, motions for On Appellants’ summary judgment.21 court is directed to enter an order to the granting summary judgment on the Appellees’ complaint.

2. The also that claims were argue barred official and/or the statute of limita- immunity22 applicable addition, tion. In contend that the failed to evidence of causation. Given our decision in present competent 1, Division these issues are moot. supra, remaining Judgment Doyle, J., Miller, J., reversed. C. concurs. P. concurs specially.

Miller, Presiding Judge, concurring specially.

I with the bottom line that the trial court agree majority opinion’s erred in Martin and Colston’s motions for denying summary judg- however, ment. I must write basis separately, clarify legal which I would to reverse this case. Since have failed to rely plaintiffs establish that the exhaust vent was the cause of the carbon misplaced monoxide the children I would exposure experienced, respectfully reverse. 18 (“Toprove writing, recording, photograph, SeeOCGA 24-10-1002 the contents of a or §§ original writing, recording, photograph required.”); (duplicates or shall be 24-10-1003 of the writing may admissible); (admissibility also be 24-10-1004 of other evidence of the contents of writing); (proving public records); (the 24-10-1005 the contents of 24-10-1007 contents of a writing may proved by testimony deposition party against be or of the whom offered or party’s admission). that written (c). See OCGA 9-11-56 § (punctuation omitted). R & R Insulation Co., DaimlerChrysler (2) (b) (Because See Motors at 49-50 there was no legal duty plaintiff, denying evidence that the defendant owed a to the the trial court erred in plaintiff’s negligence claim.); the defendant’s motion for on the see also County, Ga.App. (470 SE2d 479) (1996) (holding county

Kordares v. Gwinnett bridge inspectors personally failing could not be held liable for a subsurface inspection, plaintiffs present any policy procedure because the had failed to evidence of or inspection, undisputed employees such an and it was that no one had instructed the inspection). to conduct such an generally supra. See footnote *7 majority plaintiffs duty

The finds that failed to establish as an prima by case, element oftheir facie but this is an issue not raised parties by nor ruled on the trial court in its order.23Part of our review appeal scope properly on is to determine the of the issues before this by Court, and we should not address issues that were not advanced parties or ruled on the trial court. See v. Shield Workwear Safe App. (2) (675 249) (2009) (this Inc., 498, Shubee, 296 Ga. SE2d Court is for “the correction of errors of law committed in the trial court”) (citation omitted); Lowery Assoc., v. Atlanta Heart 266 Ga. App. (2) (597 494) (2004) (citing City 402, 404-405 SE2d Gainesville of (573 369) (2002)) (“Although Dodd, v. 275 Ga. 834 SE2d under the ‘right any ruling for reason’ rule this court will affirm the correct of a grounds apply ‘wrong below, trial court on not addressed we do not any rulings reason’rule to reverse incorrect on issues not raised or upon court.”). reasons, ruled in the trial For these I would decide the appeal causation, on the element of as it was raised and ruled by the trial court. majority correctly injuries notes,

As the recover for caused “[t]o negligence, plaintiff another’s must show four elements: a duty, duty, damages.” (Citation . . . breach of that causation and omitted.) Day, (3) (615 v. SE2d Webb (2005). causation,

On the issue of the fact of as on other issues negligence, plaintiff, essential to the cause of action for general, proof. plaintiff in has the burden of must introduce evidence which affords a reasonable basis for the likely conclusion that it is more than not that the conduct of the defendant was a cause in fact of the result. A mere possibility enough;

of such causation is not and when the pure speculation conjecture, matter remains one of or or the probabilities evenly balanced, are at best it becomes the grant summary judgment of the court to for the defendant. (Citation omitted.) Austin, and footnote Mitchell v. 249) (2003). plaintiffs

Here, have failed to introduce evidence that the improperly placed monoxide, exhaust vent was a source of carbon let injury attempt alone the source that caused to the children. Plaintiffs analyze duty, analyzing The trial court did the issue of but it did so in the context of immunity, burden to establish the affirmative defense of official not in the context defendants’ determining plaintiffs prima whether met their burden to establish their facie case. These separate inquiries. are two *8 through testimony to establish this causal link pediatrician. of the children’s opinion But his is insufficient to link the children’s exposure improperly placed to carbon monoxide to the exhaust vent. only identifying basis for the exhaust vent as the source of the through pure speculation conjecture, carbon monoxide release is plaintiffs summary judgment. and this cannot save ell, from See Mitch- supra, at 587. below,

Plaintiffs raised the issue of causation and the trial court properly erred when it ruled that the issue of causation was for the jury Consequently, I would reverse the trial court’s denial of Martin summary judgment ground. and Colston’s motions on this 2017.

Decided June Womack, Rodham, Womack, & Ronald R. M. Gottlieb Steven appellants. Rodham, for Parrish-Bennett, III, Hurst,

H. L. Cromartie Matthew K. Drew W. appellees. for USA,

A17A0613. DONASTORG v. RAINBOW INC. Rickman, Judge. premises liability Donastorg action, In this Precious sued Rain- monetary damages injuries alleg- USA, Inc., bow to recover she edly stepping pin shop- received after on an anti-theft sensor while ping clothing operated by in a store owned and Rainbow. The trial granted summary judgment court ing in favor of Rainbow conclud- superior knowledge that Rainbow lacked of the hazard that injured Donastorg. Donastorg argues genuine issues of material knowledge fact remain as to Rainbow’s of the hazard such that the grant summary judgment improper. agree of in its favor was We reverse. apply appeal

We a de novo standard ofreview to an from grant evidence, and view the and all it, reasonable conclusions and inferences drawn from in the light may most favorable to the nonmovant. A defendant summary judgment by showing obtain an absence of evi- supporting plain- dence at least one essential element ofthe tiff’s claim.