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First Communities Management, Inc. v. Holmes

Court of Appeals of Georgia, Fifth Division

January 9, 2020

FIRST COMMUNITIES MANAGEMENT, INC.
v.
HOLMES.

          MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

          MCFADDEN, CHIEF JUDGE

         The defendant in this slip-and-fall case contests the denial of its motion for summary judgment. Because there is no evidence of a hazardous condition on the premises in question, we reverse.

         1. Facts and procedural posture.

         On appeal from the grant or denial of a motion for summary judgment, we construe the evidence in the light most favorable to the nonmoving party. Lakeshore Contracting v. Lopez-Hernandez, 351 Ga.App. 232 (830 S.E.2d 561) (2019). So construed, the evidence shows that Karyn Holmes lived in an apartment complex in Smyrna, Georgia. On October 23, 2015, Holmes and her daughter took the daughter's car to a car cleaning area in the complex to vacuum out the car. Holmes got out of the car and stepped from the paved parking lot up to a landscaped area with embedded rocks surrounding the vacuum. Holmes reached for the vacuum, fell backwards, and was injured.

         On October 19, 2017, Holmes filed a negligence action against First Communities Management, Inc., alleging that she had slipped on a foreign substance. Holmes was deposed, and during questioning by defense counsel she testified that she did not know what caused her to fall.

Q: Do you know what caused you to fall backwards?
A: No, I don't. . . .
Q: You're not sure what caused your foot to slip?
A: No, I'm not. . . .
Q: Is that your testimony, Ms. Holmes, that you don't know what caused you to fall?
A: That's correct.

         When Holmes' own attorney later asked her opinion about why she fell, Holmes responded: "The rocks were real slippery. It wasn't the rough kind of rocks. . . . The rocks [were] just smooth, not rocky[.]" Holmes further testified that there was no water on the rocks and that she did not encounter any type of liquid or hazardous condition on the ground.

         First Communities moved for summary judgment, asserting, among other things, that there was no evidence of any hazardous condition. The trial court denied the motion, finding that there was evidence from which a jury could find that the rocks had been "made slippery by water from the car wash facility." The trial court issued a certificate of immediate review, and ...


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