Girone v. City of Winder , 215 Ga. App. 822 ( 1994 )

Beasley, Presiding Judge.

The Girones enumerate as error the trial court’s grant of summary judgment to the City of Winder on their claims for personal injury and punitive damages.

Joseph and Grace Girone alleged that Grace Girone was injured when she slipped and fell during the cleanup of raw sewage discharged into their home from the City’s sewer system; that the City’s negligent maintenance caused several raw sewage spills onto their property; and that they are entitled to punitive damages because of an entire want of care giving rise to a presumption of conscious indifference to consequences. The City denied the material allegations and sought summary judgment, which was granted as to all but the property damage claim. The critical evidence, viewed most favorably to the Girones, is as follows.

In January 1988, raw sewage flowed onto the Girones’ property from a manhole in their backyard. The City’s sewer department was notified and it was determined that the unwholesome discharge was caused by natural obstructions (roots) in the City’s sewer line. The sewer was not repaired.

A year and a half later, this overflow repeated, but again the defective sewer was not repaired despite notice. Less than two months later, raw sewage flooded the Girones’ basement through a bathroom fixture. The sewer department was notified and a blockage which caused the putrid infestation was attributed to roots in the City’s sewer main. No effective repair or replacement of the clogged sewer was made and, on July 4, 1991, raw sewage again flooded through a bathroom fixture. This time it covered the basement with six to eight inches of raw sewage. Repulsed by the odor and visage of the loathsome effluent, the Girones opened the basement doors and allowed the sludge to ooze out of the house and onto a concrete patio and grassy area in their backyard.

Nothing having been done by the City, the Girones called a cleaning service to sanitize the house. The next morning, the cleaning crew appeared and, as Grace Girone led the men to the basement via the sewage-covered patio, she slipped and fell and her hip bone shattered.

1. The undisputed facts do not conclusively show by plain, palpable and undisputed evidence that defendant was not at fault in proximately causing, either in whole or in part, the fall. Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810) (1992).

In this case the defendant is a trespasser on plaintiffs’ property, not a proprietor or owner of premises on which plaintiff was injured. The trespasser which allows its property to transgress onto another’s property has a duty to remove it which would be greater in degree than the duty of a proprietor to remove a foreign object from let us say, its floor. The reason is that the former is a trespass (a completed tort in and of itself: OCGA § 51-9-1),¹ as well as a hazardous condition which creates the potential for the occurrence of another tort; the latter is merely a hazardous condition which may lead to a tort.² Both a trespasser and a landowner have a duty to remove a hazard, but the landowner has the option of merely warning instead. Warning by a trespasser does not relieve it of liability for what the trespass proximately causes.

Thus, this is not a failure to warn case, which is how the majority (including the writer hereof) wrongly analyzed the case in Soto v. Roswell Townhomes, 183 Ga. App. 286 (358 SE2d 670) (1987). When analysis proceeds along that line, the plaintiff will ordinarily lose because she knows of the condition and proceeds through it. This constitutes a failure to exercise reasonable due care for her own safety. There are exceptions, which the majority recognized in Soto in stating that the danger was obvious “and that appellant was not required to traverse the muddy areas of her property.” Id. at 288.

The majority noted that one should compare Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985). The landlord in that case was not entitled to summary judgment, even though the tenant knew of the dangerous ice on the walkway outside her apartment, because there was evidence that the plaintiff was “required” to traverse it “in order to enter and leave her apartment.” Id. at 160. It was a question of fact whether she exercised due care in choosing this alternative to remaining homebound or whether in effect she was forced to choose it by defendant’s inaction. Having recognized this exception, which had been established, the majority in Soto concluded that it was not such a case.

The dissenting judges distinguished Soto from those cases in which a plaintiff is injured on another’s premises despite knowledge of the condition or hazard and a voluntary confrontation of it. They alluded to the fact that it was a trespass case, without calling it such, but applied the exception which is made to “superior knowledge” cases, i.e., that the defendant does not escape liability by the plaintiff’s superior or equal knowledge of the hazard when there is evidence from which a jury could find that the plaintiff had no real alternative but to confront it. The jury could find that the voluntariness aspect of choosing a course of action involving a known danger is removed so that a plaintiff is not precluded from recovery by a failure to exercise due care.

Viewing Soto as a case involving a trespasser’s failure to remove matter which created a danger (as well as an eyesore and an inconvenience), the question would have been whether, despite knowledge of the danger, plaintiff exercised due care in accepting defendant’s invitation to take a step which could reasonably be believed would lead to alleviation of the longstanding trespass. The result in that case might have been different.

In this case it is clear. There is ample evidence of trespass and hazardous condition attributable to defendant’s negligence (as well as to its failure to fulfill its obligatory public function) and the absence of any action on the Girones’ part to warrant the hazard which erupted on their property.

2. Whether plaintiff exercised due care for her own safety in trying to perform the defendant’s function herself due to its recalcitrance, is for the jury. The avoidance of the hazard is not so simple as not entering a proprietor’s property, leaving it, or walking around the hazard. The policy behind the “superior knowledge” standard (i.e., to protect proprietors from liability in cases where invitees fail to exercise ordinary care for their own safety) is not achieved in cases where a trespasser creates a dangerous condition on the property of another. As demonstrated above, even in slip-and-fall cases on others’ premises, the “superior knowledge” standard is inapplicable “where the plaintiff’s awareness of the danger is counterbalanced by other factors militating against a finding of voluntariness. [See] Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977), and Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 193 (210 SE2d 337) (1974). . . . See also Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984).” Soto, supra at 289 (dissent).

Thus, as to plaintiff’s own duty of care, the case resembles those cases in which a plaintiff is forced to tread on hazardous ground. See, e.g., Hull, supra. In the pivotal word used in that case, was it “necessary” for plaintiff to traverse the slippery slab? Although she knew of the hazard, her choice of confronting it rather than what she perceived as the greater hazard attendant to admitting strangers into her home when she was alone is not unreasonable as a matter of law. “[T]he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury. [Cit.]” (Emphasis supplied.) Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359) (1979). Whether there was another “safer alternative,” as it was put in Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (289 SE2d 807) (1982), is for jury determination, as the evidence does not show as a matter of law that her conduct “under the circumstances” did not meet “ ‘the standard of the reasonable [person].’ ” Id. at 702. The circumstances involved taking action to remove a trespass, a duty which the trespasser had failed to fulfill, not merely avoiding a hazardous condition on another’s premises.

Moreover, even if she were negligent, and her negligence was a proximate cause of the injury, she is not precluded as a matter of law unless the defendant’s negligence, if any, is a proximate contributing cause and is equal to or less than hers. OCGA § 51-11-7; Union Camp Corp. v. Helmy, 258 Ga. 263, 267 (367 SE2d 796) (1988).

The court erred in granting summary judgment to the City on the personal injury claim.

3. It was not error, however, to grant summary judgment as to the Girones’ claim for punitive damages. Hosp. Auth. of Clarke County v. Martin, 210 Ga. App. 893, 894 (438 SE2d 103) (1993).

Judgment affirmed in part and reversed in part.

Pope, C. J., McMurray, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. Birdsong, P. J., and Andrews, J., dissent.

1 See OCGA § 51-9-6; Rossee Oil Co. v. BellSouth Telecommunications, 212 Ga. App. 235 (441 SE2d 464) (1994).

2 Failure to eliminate or remove is discussed in Hardy v. Brooks, 103 Ga. App. 124, 126 (2) (118 SE2d 492) (1961), although in that case the defendant driver, who was not a trespasser, hit a cow on the highway and had the option to remove or warn; in this trespass case, defendant would not fulfill its duty to plaintiff by warning her.