Florence v. Knight , 217 Ga. App. 799 ( 1995 )

Andrews, Judge.

On May 12, 1993, Christy and Ronald Florence filed an action for personal injuries against Knight Development and against Gary and John Knight, individually and as partners of Knight Development. The complaint alleged that in March 1988, the Florences bought their residence, which was constructed by the defendants in August 1986. The complaint stated that though the defendants constructed the residence with the heating and air conditioning unit in the attic, they did not construct a solid flooring surface or passageway from the attic entrance to the HVAC unit. Moreover, they contended, the defendants covered the entire attic floor with “blown” insulation, which concealed the floor. The complaint also, charged that the defendants failed to install an electrical outlet or lighting fixture near the attic entrance. According to the plaintiffs, these design problems constituted a latent construction defect.

The complaint further stated that on May 14, 1991, Christy Florence, while trying to change the heating/air conditioning filter, stepped onto blown insulation and fell through the attic floor. The Florences claimed that the latent defects constituted negligence for which defendants were liable. Moreover, they claimed that the conditions violated the local county building codes and constituted negligence per se. The complaint also contained a count for gross negligence and a count, which was subsequently dismissed, for fraud and concealment.

Defendants/appellees filed a motion for summary judgment, arguing that the Florences had failed to establish a latent construction defect. They argued that the allegedly defective conditions on the property were not hidden and that the five-year period preceding Ms. Florence’s accident had passed without incident despite the fact that Mr. Florence had changed the filter. The defendants also argued that negligence in the context of construction defects is measured by a failure to adhere to the established and accepted standards of professional care in the community and that violation of the building codes did not constitute negligence per se.

With the motion, defendants filed the affidavit of John Perry Knight, which stated that Knight Development was unaware of any construction defects on the property. Knight also avowed that Knight Development sold the property to the Coopers and that no representations regarding the property were made to the Florences. The Florences responded to the motion, including a copy of the property inspection report and applicable sections of the building code which were allegedly violated.

The state court granted the motion, and this appeal followed. In two enumerations of error, the Florences claim that the court erred in granting the motion and in concluding that no factual issues remained. They argue that the attic concealed latent building construction defects of which they were unaware and that these defects were not discoverable in the exercise of ordinary care because of the fact that the “blown” insulation and lack of an electrical outlet made inspection difficult. The Florences also contend that the violations of the building code constituted negligence per se.

We find no merit to these arguments for a number of reasons. First, it defies logic to argue that the lack of an electrical outlet is somehow a latent defect. Similarly, the presence of blown insulation on the attic floor was not, as plaintiffs contend, a signal to plaintiffs regarding the structure of the floor beneath. The fact that the attic was not “defective” is supported by the fact that no incidents had occurred in the attic for five years, although the filter had been changed several times. Moreover, a plaintiff may not recover for injuries caused by building construction defects which were discoverable upon reasonable inspection. See generally Derryberry v. Robinson, 154 Ga. App. 694 (2) (269 SE2d 525) (1980); Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9) (1982). Ms. Florence had an obligation to exercise ordinary care for her own safety. Her failure to do so bars this action. See generally Sullivan v. Quise, Inc., 207 Ga. App. 114 (427 SE2d 86) (1993).

Moreover, even assuming arguendo that the construction of the attic was defective, “a seller-builder of homes and other structures is not liable for damages resulting from negligent construction absent fraudulent concealment, not applicable here. [Cit.]” Joel Properties v. Reed, 203 Ga. App. 257, 259 (1) (416 SE2d 570) (1992). This rule would apply even more to this situation in which another party, the Coopers, originally bought the home from the defendants and later sold it to the Florences.

The dissent’s focus on the alleged violation of the local building code does not alter the analysis of this case. See generally Culberson v. Lanier, 216 Ga. App. 686 (1) (455 SE2d 385) (1995). Negligence per se is not liability per se. See generally Biggs v. Long, 212 Ga. App. 195, 199, n. 4 (441 SE2d 677) (1994). “Negligence, it should be remembered, is in itself [only] one of the essential elements prerequisite to a cause of action in a given case.” Platt v. Southern Photo Material Co., 4 Ga. App. 159, 163 (60 SE 1068) (1908). “Even if plaintiff[s] could show that the [lack of a walkway and accessible lighting in the attic] was negligence per se as a violation of the building code, [they] would nevertheless be precluded from recovering because of the equal knowledge rule.” Sullivan v. Quisc, Inc., supra at 116. Here the absence of the element of proximate cause, regardless of any building code infractions, is fatal to the Florences’ claims.

Judgment affirmed.

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