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Perkins et al. v. Kranz

The evidence established that the plaintiff had equal knowledge of the alleged hazard—an overhanging tree branch.

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While walking in a Gwinnett County subdivision, Thomas Kranz’s eardrum was punctured by a branch from a tree overhanging the sidewalk. Kranz sued Jerry Perkins and Nyda Perkins, on whose property the tree was located, claiming negligence. The trial court denied the Perkinses’ motion for summary judgment without explanation. They sought and were granted interlocutory review, and on appeal, they assign error to the trial court’s denial of their motion for summary judgment. For the reasons that follow, we agree and reverse. This court conducts a de novo review of the grant or denial of a motion for summary judgment. To prevail, the moving party must show that no genuine issue of material fact exists and that the undisputed facts and all inferences and conclusions drawn from them, when viewed in the light most favorable to Kranz as the nonmoving party, warrant judgment as a matter of law.1

So viewed, the record reflects that on April 3, 2009, Kranz was pushing his toddler grandson in a stroller as he walked through the subdivision where his daughter lives. Kranz noticed the Perkinses’ tree, with its limbs extending over the sidewalk. The day was sunny and clear, and there was nothing to obstruct Kranz’s view of the tree. He saw the branches obstructing his path, and in order to avoid them, moved off of the sidewalk and began walking on a strip of grass running between the sidewalk and the subdivision roadway. As he passed the tree, he felt a sharp pain, and eventually realized that a twig had entered his ear and pierced his eardrum. He later had surgery to repair the eardrum.

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