X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Mercier, Judge. In this premises liability action, Christina Watson sued Katherine Dana for damages sustained when Watson stepped into a concealed hole in the backyard of a rental home owned by Dana. Asserting that she lacked knowledge of the alleged hazard, Dana moved for summary judgment. The trial court granted Dana’s motion, and Watson appeals. We reverse.[1] Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. See Witt v. Ben Carter Properties, 303 Ga. App. 107 (692 SE2d 749) (2010). We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences in the light most favorable to the non-movant. See id. So viewed, the record shows that Dana leased the rental home at issue to Mindy Wadley. On June 4, 2016, Wadley held a party at the house, which Watson attended. During the party, Watson walked into the backyard to visit with a friend, who was sitting in a group of chairs arranged in a circle. As she approached an empty chair, Watson stepped into a hidden, oblong-shaped hole. The hole was “about the size of [a] legal pad,” deep enough that Watson’s foot and ankle disappeared, and obscured by overgrown grass. Watson heard a “loud sharp noise” and sensed immediate pain. X-rays later revealed that her ankle was broken and a ligament was torn. Watson sued Dana, alleging that Dana failed to exercise ordinary care in keeping the rental home premises in a safe condition. Dana moved for summary judgment, arguing that she had no knowledge of any hazardous condition on the property, which was in the possession of Wadley, her tenant. The trial court agreed with Dana and granted the motion. This appeal followed. Generally, a landlord that fully parts with possession of leased property is not liable to third parties injured on the property “unless it is shown that the damages resulted either from failure to repair the premises or faulty construction of the premises.” Gainey v. Smacky’s Investments, 287 Ga. App. 529, 530 (2) (652 SE2d 167) (2007) (citations and punctuation omitted). See also OCGA § 44-7-14 (defining tort liability of landlord). With respect to failure to repair, an “out-of-possession” landlord is liable “only in instances where there is a duty to repair and notice has been given of the defect.” Gainey, supra at 530 (2) (a) (citation and punctuation omitted). A landlord that retains control over leased premises, however, may be liable “even without actual notice of the defect, if, in the exercise of ordinary care, he should have known of it.” Paul v. Sharpe, 181 Ga. App. 443, 446 (2) (352 SE2d 626) (1987) (citation, punctuation, and emphasis omitted). Such landlord is under the responsibility of a general owner of real estate who holds out a general invitation to others to enter upon and use his property, and is bound to see that reasonable care is exercised to keep the portion thus retained by him reasonably safe and fit for the uses which he has invited others to make of it. Id. at 445 (1) (citation and punctuation omitted). See also OCGA § 51-3-1 (imposing duty on landowner to exercise ordinary care to keep premises and approaches safe for invitees). Wadley testified via affidavit that pursuant to their lease contract, Dana agreed “to provide for the maintenance of the outside [of the rental home], including the yard.” To this end, Dana sent a man to the property to “perform the outside and yard maintenance.” As described by Wadley: “During the term of my lease, I was never responsible, under our agreement[,] for the maintenance of the outside of the home, including the yard. Miss Dana never relinquished control of the outside.” Wadley’s testimony raises a question of fact as to whether Dana retained control over the backyard and thus owed a duty of ordinary care to keep the yard reasonably safe for invitees, such as Watson. See Swainsboro v. Riner, 195 Ga. App. 390, 391 (393 SE2d 519) (1990) (evidence created jury issue as to whether landlord had parted with possession of leased premises); Paul, supra at 444 (1) (“A guest of a tenant is an invitee upon the premises of the landlord where he is invited by the tenant and visits him in such premises.”) (citation and punctuation omitted). A factual issue also exists as to Dana’s knowledge of the backyard hazard. As noted above, knowledge may be actual or, where a landowner should have known about the hazard in the exercise of ordinary care, constructive. See Paul, supra at 446 (2). Watson has pointed to no evidence that Dana actually knew about the hole in the rental home’s yard. But she offered proof that Dana did not act responsibly in taking care of the outside of the house. Dana admittedly did not inspect the yard for hazards or perform “work . . . in the back yard,” and Wadley testified that Dana “was very poor at maintaining said yard.” Moreover, Watson’s testimony regarding the size of the hole and the overgrowth covering it would permit a reasonable jury to “infer both that [the hole] had been in existence for a substantial period of time and that it was large enough to have been observable during routine mowing and maintenance.” Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432) (1991). Because questions of fact remain as to Dana’s responsibility for maintaining the yard and her constructive knowledge of the hazard at issue, the trial court erred in granting her motion for summary judgment. See Lawless, supra; Swainsboro, supra (evidence that landlord maintained some control over building but failed to inspect the premises raised question of fact as to constructive knowledge of hazard). Compare Witt, supra at 110-112 (given landowner’s exercise of ordinary care in routinely inspecting and carefully maintaining grassy median in shopping center, landowner was not charged with constructive knowledge of concealed, difficult-to-find hole in median); Lonard v. Cooper & Sugrue Properties, 214 Ga. App. 862, 864 (449 SE2d 348) (1994) (no evidence that landlord had constructive knowledge of hole in tenant’s yard; although landlord performed some maintenance work on the property, the work took place “in areas away from the area where [the tenant] fell”). Accordingly, we reverse. Judgment reversed. Miller, P. J., and Coomer, J., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
April 25, 2024
Dubai

Law firms & in-house legal departments with a presence in the middle east celebrate outstanding achievement within the profession.


Learn More
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More

Atlanta s John Marshall Law School is seeking to hire one or more full-time, visiting Legal WritingInstructors to teach Legal Research, Anal...


Apply Now ›

Shipman is seeking an associate to join our Labor & Employment practice in our Hartford, New Haven, or Stamford office. Candidates shou...


Apply Now ›

Evergreen Trading is a media investment firm headquartered in NYC. We help brands achieve their goals by leveraging their unwanted assets to...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›