Premises liability. Baldwin Superior Court. Before Judge George.
Goodman McDuffey Lindsey & Johnson, James F. Cook, Jr., Zachary J. Nelson, for appellant.
James E. Lee II, Michael W. Barber, for appellee.
Phipps, C. J., and McMillian, J., concur.
Ellington, Presiding Judge.
We granted the application for interlocutory review filed by Milledgeville Manor Partners, LLC (" MMP" ) to consider whether the Superior Court of Baldwin County erred in denying MMP's motion for summary judgment in this premises liability suit brought by Patricia Lewis. Because the undisputed evidence establishes as a matter of law that Lewis's knowledge of the hazard on MMP's property was equal or superior to that of MMP, we reverse.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn
from the evidence are construed in the light most favorable to the nonmovant.
(Citations, punctuation and footnotes omitted.) Jones v. Barrow, 304 Ga.App. 337 (696 S.E.2d 363) (2010).
So viewed, the record reveals the following relevant facts. Lewis was a tenant of MMP and used a clothesline behind her apartment. While using the clothesline one day, she noticed a small hole in the ground. In the weeks thereafter, the hole appeared to get larger. Eventually, Lewis informed a fellow tenant, whom MMP paid to keep the grounds free of trash (hereinafter, the " groundskeeper" ), about [328 Ga.App. 483] the hole and pointed out its location. Lewis also told another unidentified MMP employee about the hole. However, Lewis did not check the hole thereafter to determine whether the groundskeeper, the unidentified employee, or MMP had taken any action to repair the hole.
On May 24, 2011, roughly two and one-half weeks after notifying the groundskeeper about the hole, Lewis walked out the back door of her apartment to visit a local store. She crossed the area near the clothesline, stepped into the hole, and fell, fracturing her ankle. Lewis claimed that, at the time, the hole was approximately six inches deep and large enough to fit a man's size 11 shoe. According to Lewis, she did not see the hole that day because grass had grown over the hole, hiding it.
1. MMP contends that the trial court erred in denying its motion for summary judgment because Lewis knew that the hole was present and such knowledge was equal to or greater than its own. We agree.
[T]he true ground of liability [in a premises liability suit] is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a ...