Case Law Update: Court of Appeals Clarifies When Summary Judgment is Appropriate for Premises Owners With Respect to Constructive Knowledge When a Licensee is Injured

A recent opinion of the Georgia Court of Appeals contrasts two deck collapse cases under similar, but not identical, facts. In Rogers v. Woodruff, A14A0425 (August, 19 2014), the Court undertook an analysis of facts similar to those presented in Hicks v. Walker, 262 Ga. App. 216 (2003), but found that one discernible difference made summary judgment appropriate in the Rogers case. In particular, the defendant’s constructive knowledge of a dangerous condition was not present in Rogers.

In Rogers, Woodruff, the Plaintiff, was visiting Rogers’ daughter at an apartment located above her parents’ detached garage, which was accessible only by an exterior stairway with a deck landing at the top. Woodruff and another visitor, Hayes, were on the landing when Woodruff either leaned up against the railing or stumbled backwards and fell into the railing; the evidence was disputed as to whether alcohol and fighting were involved in the incident. The result, however, was that Woodruff fell to the concrete pad below and suffered severe injuries.

The Court analyzed these facts by repeating the well-known principles of premises liability as it relates to the duty owed to a licensee: “(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition of the risk involved.” The court also noted that it had omitted a third requirement from the Hicks decision: “(c) the licensees do not know or have no reason to know of the condition and the risk involved.”

Importantly, during the course of discovery, Woodruff deposed an expert in construction, who testified that his examination of the deck and railing revealed that the railing violated building-code requirements for minimum height and load capacity. As a result, in opposition to the Motion for Summary Judgment filed by Rogers, Woodruff argued that the Hicks case was directly on point. Hicks also involved a building code violation that would have caused it to fail an inspection had one been undertaken. In this case, however, no inspection had been undertaken, but the deck in question was built some ten years prior to the owner’s acquisition of the property and, at the time of the deck being built, it was in compliance. Contrast that with Hicks, wherein the property was built in close proximity of time to the accident and the owners never had the deck inspected. This issue of constructive knowledge made the difference for the Court of Appeals, as the Hicks defendant should have known of the danger.

Back to Rogers, the Court of Appeals held that the trial court, in denying Rogers’ Motion for Summary Judgment, erred in relying on Hicks v. Walker because there was no evidence that the property owners should have known of the deck’s condition. That is, because the undisputed evidence established that the deck and railing in question were built by a previous property owner ten years prior to Rogers’s purchase of the property and that the county inspected the improvement soon after its construction, the Rogers’ had no “reason to know” of the hazard, and the case was thereby distinguishable from Hicks on the basis of the lack of constructive knowledge.
As shown in Rogers consideration of whether the defendant had “reason to know” of a defect, even if it is clear that there is no “actual knowledge” is key to demonstrating that no constructive knowledge existed and obtaining summary judgment.

Douglas R. Kendrick