Blondell v. Courtney Station 300 LLC

362 Ga.App. 1

865 S.E.2d 589

BLONDELL et al.

v.

COURTNEY STATION 300 LLC et al.; and vice versa (four cases).

A21A0731, A21A0740, A21A0741, A21A0779

Court of Appeals of Georgia.

November 2, 2021

Reconsideration Denied November 17, 2021

Eugene C. Brooks IV, Savannah, Anna Green Cross, Darren Summerville, Atlanta, Maxwell Kent Thelen, Meredith Charlotte Kincaid, for Appellant in A21A0731.

Mark Roland Johnson, John Lowell McKinley Jr., Atlanta, Derek Anthony Mendicino, Conyers, Tracy Ann O'Connell, Bridgette Elizabeth Eckerson, Atlanta, Philip Michael Thompson, Gary Max Tiller, for Appellee in A21A0731.

Derek Anthony Mendicino, Conyers, for Appellant in A21A0740.

Eugene C. Brooks IV, Savannah, Anna Green Cross, Darren Summerville, Atlanta, Maxwell Kent Thelen, Meredith Charlotte Kincaid, Alejandro Blanco, for Appellee in A21A0740, A21A0741, A21A0779.

Tracy Ann O'Connell, Philip Michael Thompson, for Appellant in A21A0741.

Mark Roland Johnson, John Lowell McKinley Jr., Atlanta, Bridgette Elizabeth Eckerson, Atlanta, for Appellant in A21A0779.

Pinson, Judge.

Teressa and Alvin Blondell were injured when a pergola swing at a Chatham County apartment complex collapsed while they were sitting on it. Three-and-a-half years later, Teressa also suffered burn injuries when she tried to light a charcoal grill. The Blondells sued the swing manufacturer, the current property owner, and two sets of property managers. The trial court denied summary judgment except as to damages for the burn injuries, which the trial court determined were too remote, and as to a single public nuisance claim against one defendant. The Blondells appealed the grant of summary judgment on their damages claims, and the four defendants crossappealed to challenge the denial of summary judgment on the other claims.

We ultimately affirm all but one of the trial court's summary judgment orders. First, although proximate cause is typically a jury question, we agree that the absence of proximate cause between the defendants’ alleged swing-related negligence and Teressa's burn injuries is sufficiently "plain and undisputed" to support summary judgment for defendants as to those damages. Second, the same cannot be said about the swing manufacturer's failure to provide instructions for hanging the swing: the record contains evidence potentially connecting that failure to the Blondells’ injuries, and that potential cause is not so remote that we can take the rare step of taking that question from the jury. Third, we agree that the acceptance doctrine does not let the property manager that installed the swing off the hook, although for different reasons than the trial court gave. And fourth, we agree that a genuine dispute of fact remains as to whether the current property owner and manager conducted reasonable inspections or were chargeable with constructive knowledge of the hazard posed by the swing, which collapsed soon after they bought and began managing the property. Our only point of disagreement with the trial court has to do with the private nuisance claim: the trial court erred in allowing that claim to go forward because the Blondells failed to make the case that the defendants’ conduct related to the swing caused any continuous invasion of their interest in the land. So, all told, we affirm the judgment of the trial court in each of these appeals except for Case No. A21A0741, which we affirm in part and reverse in part.

Background

In June 2013, Teressa and Alvin Blondell were sitting on a two-seat pergola swing next to the pool at the Courtney Station Apartments, where they were leasing an apartment.¹ The swing partially dislodged from the overhead beam from which it was suspended, and both Blondells fell to the concrete below and suffered injuries. Teressa was knocked unconscious and was later diagnosed with a concussion, which has caused lasting cognitive impairment and some associated physical and psychological conditions.

The swing's collapse was caused by the failure of one of the eyebolts from which the swing was suspended. A "fatigue fracture" developed in the shank of the eyebolt, which ultimately caused the bolt to snap. Evidence showed that similar eyebolts had a weight-bearing capacity of only 160 pounds and were accompanied by warnings that they were not to be used for overhead lifting or supporting human weight. One of the Blondells’ expert witnesses testified that the eyebolts here were "totally inappropriate" for suspending the swing. Another expert opined that, to comply with applicable industry standards, a "commercial hinge" should have been used.

The swing had been installed by an employee of defendant ContraVest Management Company shortly after the 2008 completion of the apartment complex. The employee, James McNabb, followed the assembly instructions included with the swing, which did not include any instructions or warnings as to hanging it. To hang the swing, McNabb used carbon steel eyebolts to suspend the swing's chains from the overhead beam of the trellis from which it hung. Each eyebolt was affixed so that its "eye" was situated approximately three inches from the beam, leaving three inches of the eyebolt's shank exposed. Though McNabb could not recall whether the eyebolts were included in the assembly kit or purchased by him at a hardware store, record evidence reflects that the assembly kit sold with the swings did not include any parts for attaching the swing's chain to any overhead support. McNabb testified that, if the hardware had not been included in the assembly kit, he would have simply "guess[ed]" as to the proper type and size hardware to use based on the swing's size and weight, and that he was not aware of any consultations by ContraVest with an engineer or architect regarding the swing's installation. McNabb testified that he would have followed any instructions he was given on assembling and installing the swing.

In April 2013, a few weeks prior to the swing collapse, Courtney Station 300, LLC acquired the apartment complex from its original owner, Courtney Station, LLC. Courtney Station 300 retained RAM Partners, LLC to manage the complex, replacing ContraVest, which had managed the property since its construction. A RAM Partners employee who inspected the property prior to its purchase testified that he was "not familiar" with the safety standards for hanging swings and that his inspection was limited to "pull[ing] on" and "sit[ting] on" them "to make sure everything [was] intact and not throwing [him] onto the ground[.]" There was evidence that by 2013, the swing hardware was rusted to a degree that it should have been replaced.

Since the swing collapse, Teressa had experienced symptoms of cognitive impairment, including poor judgment and erratic behavior. Nearly three-and-a-half years after the collapse, she tried to light a charcoal grill—she had never done that before—and became engulfed in flames. Teressa was transported to an Augusta burn center, where she remained in an induced coma for months.

The Blondells sued Richey Industries, ContraVest, Courtney Station 300, and RAM Partners, asserting claims for products liability, premises liability, negligent construction, and nuisance. They sought damages for both their immediate injuries suffered as a result of the swing collapse and Teressa's burn injuries from the grill incident.

Following extensive discovery, all four defendants moved for summary judgment. The trial court granted the defendants’ motions concerning Teressa's burn injuries on the ground that those injuries were not a foreseeable consequence of any defendant's negligent act or omission. The court denied the defendants’ motions for summary judgment as to their liability for the Blondells’ initial injuries, except with regard to ContraVest's liability based on the theory of public nuisance, as to which the court granted summary judgment. The trial court also declined to rule on the defendants’ motions for summary judgment as to the Blondells’ claims for punitive damages and litigation expenses, opting to hold those issues in abeyance until closer to trial. These appeals followed.

Discussion

The principal appeal and each of the three cross-appeals seek review of the trial court's summary judgment orders, so our review of the issues on appeal is de novo. See Johnson v. Omondi , 294 Ga. 74, 76, 751 S.E.2d 288 (2013). For each issue, the ultimate question is whether, viewing the evidence in the light most favorable to the party opposing summary judgment (here, the Blondells), a genuine issue of material fact remains and thus precludes judgment as a matter of law. OCGA § 9-11-56 (c) ; see, e.g., Smith v. Tibbits , 359 Ga. App. 362, 365, 857 S.E.2d 820 (2021).

Case No. A21A0731

1. In the principal appeal, the Blondells argue that the trial court erred when it granted summary judgment to defendants as to Teressa's burn injuries on the ground that those injuries were not a foreseeable consequence of their negligence (if any). We disagree.

To recover for injuries caused by the negligence of another, a plaintiff must establish four elements: a duty owed to the plaintiff, a breach of that duty by the defendant, injury to the plaintiff, and causation, i.e., a connection between the breach and the injury. City of Richmond Hill v. Maia , 301 Ga. 257, 258–259 (1), 800 S.E.2d 573 (2017).

To establish causation, the plaintiff must prove that the defendant's negligence was both the "cause-in-fact" and the "proximate cause" of the injury. See Maia , 301 Ga. at 258–259 (1), 800 S.E.2d 573. Cause-in-fact requires a determination that, but for the defendant's act, the injury to the plaintiff would not have occurred. See Strength v. Lovett , 311 Ga. App. 35, 43-44 (2) (b), 714 S.E.2d 723 (2011) ("To show that the wrongful conduct of the defendant is a cause in fact of his injuries, a plaintiff ordinarily must prove that, but for this conduct, he would not have sustained the injury[.]"). The plaintiff must offer evidence that...