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Aldredge v. Byrd

Court of Appeals of Georgia, First Division

March 30, 2017

ALDREDGE
v.
BYRD. ALDREDGE
v.
WILSON. ALDREDGE
v.
BYRD. ALDREDGE
v.
ARNOLD. ALDREDGE
v.
WILLIAMS. ALDREDGE
v.
SMITH.

          BARNES, P. J., ELLINGTON, P. J. and MERCIER, J.

          Ellington, Presiding Judge.

         Marquita and Erica Byrd, Sade Wilson, Anthony Arnold, Timothy Smith, and Cawandle Williams filed suit against Phillip Aldredge in the State Court of Fulton County, seeking compensation for injuries they suffered as the result of a deck collapse on Aldredge's rental property. Following a hearing, the trial court denied Aldredge's motions for summary judgment. We granted Aldredge's applications for interlocutory appeal, and, for the reasons explained below, we reverse.

         Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]" OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 S.E.2d 779) (2010). Where a respondent who will not bear the burden of proof at trial moves for summary judgment and "point[s] out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the [claimant's] case[, ]" the claimant "cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue." (Citations and punctuation omitted.) Id. at 623-624 (1) (a). The relevant facts that follow are undisputed unless otherwise noted.

         Aldredge purchased 6340 Hollywood Drive, a single family home in Forest Park, Clayton County, in 1987. The record shows that, in 1988, not long after Aldredge bought the house, he hired a carpenter, John Templeman, to remove the existing back deck and build a new one. Neither Aldredge nor Templeman obtained a building permit for the deck construction. Although Aldredge did not direct or supervise the building of the deck, he knew that Templeman attached the deck to the house using nails and not bolts.[1]

         Aldredge rented the house to Kenwardo Moore and Karen Kelly in February 2010. The tenants had exclusive possession of the premises under the terms of the rental agreement, and Aldredge agreed to maintain the property and retained the right to enter the property to make repairs, improvements, or periodic inspections as he deemed necessary. The tenants agreed to notify Aldredge of any maintenance that needed to be done.

         In 2010, shortly before or just after renting the house to Moore and Kelly, Aldredge replaced several deck boards, which had been stained with grease and/or charred by a prior resident.[2] Aldredge did not replace the ledger board or the deck floor board closest to the house. Aldredge deposed that, when he replaced the deck boards in 2010, he thoroughly inspected the deck, including the attachment and the condition of the ledger board and the supporting joists underneath the deck boards. He did not observe any rot or other defect during that inspection. In addition, he deposed that he was conscious that "[t]he deck set off the ground" and so on other occasions, whenever he went to the property to power wash the deck or do other maintenance, he always made a point of checking "the general condition of the deck, see if there's any rot, see if there's any movement, anything that was weak about it, the nails, were they in good shape, that kind of thing." Aldredge's repair work did not involve or uncover the house's rim joist, which remained concealed by the deck's ledger board. Aldredge deposed that he was aware that even pressure-treated lumber will eventually need to be replaced and will lose its resistance to mold and rot, but he did not know how long that might take. He deposed that, before the deck collapsed, there was no evidence of any visible problem of any kind with the deck. The tenants never notified Aldredge of any problem related to the deck and had never experienced or observed any problems with the deck.

         On March 19, 2011, Kelly hosted a barbeque. Kelly's daughter, Sade Wilson, and the five other appellees were among the guests who were out on the back deck when the deck broke away from the house, and the edge of the deck nearest to the house collapsed to the ground.

         Dexter Norwood, a code enforcement officer with the Clayton County police department, inspected the premises on March 21, 2011. He deposed that he did not observe any defect in the deck, the exterior walls, or any other portion of the premises which would have been visible to or observable by anyone prior to the happening of the deck collapse on March 19, 2011. To Norwood's knowledge, the premises were in compliance with applicable building codes.[3]

         In addition, Aldredge also inspected the deck within days after it collapsed, and he observed that the rim joist appeared rotted and damaged. He deposed that, after the deck collapsed, he was told that there was no flashing, but that, before the deck collapsed, he had not known that Templeman did not use flashing during the construction of the deck.[4] He theorized that "if there had been flashing there, obviously water wouldn't have got to" the board that rotted and stated that, if he had known about the lack of flashing, he might have been more "suspicious" of the safety of the deck. Aldredge deposed that, even after the collapse, the deck itself still appeared sound and "solid as a rock" and that the only problem was that the rim joist, which supported the deck, had rotted.[5]

         A man named George Harper inspected the deck approximately one month after it collapsed.[6] He found that the rim joist, the part of the house structure to which the deck was attached, had rotted and deteriorated. He deposed that that particular board likely would have been concealed by the deck's ledger board before the deck collapsed. He had no way of knowing whether any defect in the deck would have been observable by anyone prior to the deck collapse.

         In denying Aldredge's motion for summary judgment, the trial court determined that Aldredge was an out-of-possession landlord, such that the guests must show pursuant to OCGA § 44-7-14 that their damages resulted either from failure to repair the premises or faulty construction of the premises.[7] Consequently, the guests cannot prevail by meeting the less stringent negligence standard applicable to premises owners and occupiers generally.[8] Applying OCGA ยง 44-7-14, the trial court determined ...


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