Bennett v. McPhatter

359 Ga.App. 804

860 S.E.2d 105

BENNETT

v.MCPHATTER.

A21A0270

Court of Appeals of Georgia.

June 16, 2021

Steven Paul Bristol, Brunswick, Mary Beth Boone, Timothy Andrew Bishop, Brunswick, for Appellant.

David Sidney Eichholz, Kathryn Ellen Sherry, Savannah, for Appellee.

Markle, Judge.

After Angela McPhatter was injured when she fell through a broken board on the deck of the home rented by Brenda Daughtry and owned by James A. Bennett, she filed a premises liability and negligence suit against Daughtry and Bennett. The trial court denied Bennett's motion for summary judgment. Bennett filed this interlocutory appeal, contending that, as an out-of-possession landlord, he was not liable to McPhatter for her injuries because (1) he had no knowledge of an alleged defective condition of the deck, and thus no duty to inspect and repair it; and (2) he cannot be held liable for defective construction of the deck. Because we conclude that there were no genuine issues of material fact with respect to Bennett's liability in this regard, the trial court erred in denying summary judgment. We therefore reverse the trial court's order.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56,[Bennett], as the moving party, must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) In/Ex Systems, Inc. v. Masud , 352 Ga. App. 722, 723 (2), 835 S.E.2d 799 (2019).

So viewed, the record shows that Bennett owned a home in Savannah, Georgia, which he subsequently leased to Daughtry. In March 2014, McPhatter was Daughtry's guest at the home when she walked out onto the back deck of the property and fell through a board, sustaining injuries. Thereafter, McPhatter filed a premises liability suit against Daughtry and Bennett, raising various allegations of negligence, including that the board that broke was inadequately supported.¹

Bennett filed a motion for summary judgment, asserting that he was an out-of-possession landlord and that (1) he was not liable to McPhatter for her injuries because he had no knowledge of any alleged defective condition with the deck and he had no duty to repair, and (2) he was not liable for any alleged defective construction of the deck.

In his deposition, Bennett stated he owned the home for 17 years and used it as a rental property. The deck was part of the home when Bennett purchased it, and he inspected the home when he first bought it, and conducted inspections every time there was a new tenant. Bennett stated that he was unaware of any defective condition with the deck prior to McPhatter's fall; he had never had a previous complaint concerning the deck; and he did not notice a problem with it when he conducted a walk-through with Daughtry prior to renting the property to her.²

In an affidavit, Daughtry admitted that, some months after moving into the home, she became aware of the weakened condition of the board on the deck, and she warned McPhatter about it prior to her fall, but she did not advise Bennett of the deck's condition until after the accident. McPhatter averred that she was unaware of any defects or dangerous conditions involving the deck.

Following a hearing, the trial court denied Bennett's summary judgment motion, finding that there were genuine issues of material fact with regard to (1) whether McPhatter's damages resulted from Daughtry's negligence or illegal use of the premises; (2) whether under both OCGA §§ 44-7-13 and 44-7-14 Bennett failed to keep the premises in repair; and (3) whether Bennett should have discovered the unsafe condition of the deck during his walk-through with Daughtry before leasing the home to her. The trial court then certified its order for immediate review, and, after we granted the interlocutory application, this appeal followed.

On appeal, Bennett argues that the trial court erred in denying his motion for summary judgment because, under OCGA § 44-7-14, he was an out-of-possession landlord at the time of McPhatter's fall, and thus he is not liable for her injuries because he did not construct the deck, had no knowledge of the deck's defective condition, and had no duty to inspect or repair it.³ We agree.

(a) Knowledge of defect.

Because Bennett was an out-of-possession landlord under OCGA § 44-7-14 at the time of McPhatter's fall and injuries, he is liable in tort only for McPhatter's damages that result either from his failure to repair the deck or from its faulty construction. Martin v. Hansen , 326 Ga. App. 91, 92 (1), 755 S.E.2d 892 (2014). Bennett's liability is predicated on his knowledge of the defect. See Martin , 326 Ga. App. at 92 (1), 755 S.E.2d 892 ; see also Aldredge v. Byrd , 341 Ga. App. 300, 303-304 (1), 799 S.E.2d 263 (2017) ; Haynes v. Kingstown Properties, Inc. , 260 Ga. App. 102, 103, 578 S.E.2d 898 (2003). However, Bennett had no absolute duty to inspect the deck prior to leasing the house, particularly where there was no reason to believe an inspection was necessary. See Lonard v. Cooper & Sugrue Properties, Inc. , 214 Ga. App. 862, 864, 449 S.E.2d 348 (1994).

Bennett testified that he was unaware of any problem or defect with the deck, he had never had a previous complaint concerning the deck, and he did not notice a problem with the deck when he conducted a walk-through with Daughtry prior to renting the property to her. Daughtry admitted she did not advise Bennett of the weakened board. As such, Bennett had neither actual or constructive knowledge of the defect.

McPhatter has produced no other evidence that Bennett either knew or should have known that the deck needed repair. To the extent that McPhatter contends that Bennett knew or should have known of the defect because he lived only a few blocks away and would stop by monthly to collect the rent check, such conduct does not raise a question of fact as to Bennett's knowledge of the deck's condition. Also, Bennett had no right to enter the property without Daughtry's permission to discover the deck's condition. See Colquitt , 265 Ga. at 906 (1), 463 S.E.2d 491. Moreover, in the absence of any evidence Bennett had either actual or constructive knowledge of the dangerous condition, ordinary diligence did not require Bennett to inspect the deck. Lonard , 214 Ga. App. at 865, 449 S.E.2d 348. Accordingly, Bennett is entitled to summary judgment on this issue. Aldredge , 341 Ga. App. at 304 (1), 799 S.E.2d 263.

(b) Defective construction.

Turning to Bennett's liability for faulty construction,

[g]enerally, the liability of a landlord for defective construction exists only in cases where the structure is built by him in person or under his supervision or direction ... With regard to defective construction by a predecessor-in-title, our court has held that an out-of-possession landlord may be held liable only for those structural defects that would be discovered during a pre-purchase building inspection. Such out-of-possession landlord is not liable for all defects because ordinary care in the fulfillment of the landlord's duty to keep the premises in repair does not embrace an affirmative duty to make such an inspection of the premises as will disclose the existence of any and all latent defects which may actually exist therein. This would be but to place upon

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