Martin v. Johnson-Lemon , 271 Ga. 120 ( 1999 )

Carley, Justice,

dissenting.

Although I join the majority in its disagreement with the legal reasoning of the Court of Appeals in Lemon v. Martin, 232 Ga. App. 579 (502 SE2d 273) (1998), I do believe that, when the “right for any reason” principle is applied, we should affirm the Court of Appeals’ reversal of the grant of summary judgment in favor of the defendant-landlord. Therefore, I dissent.

Ms. Alice Johnson-Lemon brought this wrongful death action against John Martin. Because Martin is an out-of-possession landlord, the majority correctly holds that his liability must be determined under OCGA § 44-7-14, rather than OCGA § 51-3-1. Tribble v. Somers, 115 Ga. App. 847, 849 (156 SE2d 130) (1967). Pursuant to OCGA § 44-7-14, Martin can be held liable “for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” (Emphasis supplied.) The evidence shows that Ms. Johnson-Lemon’s husband drowned in a pool which, as originally constructed, had no visible depth markings. According to the affidavit of an expert which the plaintiff offered in opposition to Martin’s motion for summary judgment, such a pool would evidence deviation from the applicable standard of care. Thus, even in the absence of admissible evidence of the DeKalb County pool rules and regulations, the expert’s affidavit was sufficient to show that the pool, as initially constructed, was defective. Thus, the viability of Martin’s motion for summary judgment is dependent upon whether this defect in the pool is attributable to his failure to repair the premises or to his construction of that defective addition to his property.

The majority correctly holds that no genuine issue of material fact remains as to Martin’s liability for a failure to repair the pool. The alleged defect is in the original design and is not in the subsequent maintenance of the pool. However, I submit that the majority incorrectly concludes that Martin, as owner, cannot be held liable under OCGA § 44-7-14 for construction of the allegedly defective pool. The pool actually was built by an independent contractor, and the owner ordinarily would not be liable for a tort attributable to that entity. OCGA § 51-2-4. There are, however, exceptions, one of which is that the owner can be held liable if he ratified the construction of the allegedly defective pool by accepting it from the independent contractor. OCGA § 51-2-5 (6).

[A]fter the contractor has completed the work and turned it over to the owner, and it has been accepted by the owner in discharge of the contract, the general rule is that the responsibility, if any, for maintaining it in its defective condition is shifted to the owner. [Cit.]

Hickman v. Toole, 31 Ga. App. 230, 231 (2) (120 SE 438) (1923).

[I]t is a well established general rule that, where the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection. [Cits.]

Queen v. Craven, 95 Ga. App. 178, 183-184 (3) (97 SE2d 523) (1957). Construing the evidence most strongly against Martin, he knew or should have known of the patent absence of any depth markings at the time he accepted the pool from the independent contractor. See Wilmock v. French, 185 Ga. App. 259, 261 (1) (363 SE2d 789) (1987). Thus, I believe that the trial court erred in granting summary judgment.

Citing Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504) (1988) and Ross v. Jackson, 123 Ga. 657, 659 (51 SE 578) (1905), the majority nevertheless concludes that Martin could not be liable under OCGA § 44-7-14 for defective construction because he did not personally build the pool and it was not built under his personal “supervision or direction.” However, the majority misconstrues both Flagler Co. and Ross as authority for the proposition that a landlord must take such an active role in the construction in order to be held liable for a defect in a completed and accepted project. Nothing in either case supports the conclusion that OCGA § 51-2-5 (6) is applicable in an action brought against a landlord under OCGA § 44-7-14. Instead, it is clear that, in both of those cases, this Court was simply attempting to distinguish between the two theories of liability imposed upon a landlord by OCGA § 44-7-14. In order for a defendant landlord’s liability for defective construction to attach, the alleged defect must date from a time when the defendant had an interest in the property and he must be personally responsible for its addition to the premises. Thus, imposition of liability under that theory depends upon proof that the allegedly defective structure was built by the defendant either in person or under his supervision or direction, as opposed to having been built by or under the direction or supervision of another owner or occupier of the property. See Colquitt v. Rowland, 265 Ga. 905, 906 (1) (463 SE2d 491) (1995) (landlord not liable for defective pool erected by tenant). If, on the other hand, the alleged defect is attributable to a predecessor in title or other occupant of the property, the landlord’s liability can be based only upon the alternative theory that he breached the duty to repair the premises.

In this case, there is no question that Martin’s potential liability is premised upon the theory of defective construction, rather than negligent repair, since the pool was built at his express personal direction by the independent contractor. Because he owned the property at the time the pool was built and he directed that it be constructed, Martin can be held liable under OCGA § 44-7-14 if he accepted that improvement from the independent contractor in its allegedly defective condition. The independent contractor who allegedly created the defect in the pool which ultimately produced the death of Ms. Johnson-Lemon’s husband is not liable,

unless it is made to appear from the allegations that the work was still in progress and had not been completed and accepted by the landlord, for otherwise the inference arises that the landlord has accepted the work, and is answerable for any damages instead of the contractor, whether occasioned by negligence or trespass.

(Emphasis supplied.) Townsend & Ghegan Enterprises v. W. R. Bean & Son, 117 Ga. App. 109, 118 (10) (159 SE2d 776) (1968). It is undisputed that the pool was completed and accepted by Martin. Because the trier of fact could find that the pool was patently defective at that time, Martin may be liable as a landlord for a death attributable to that alleged defect even though the structure was built by an independent contractor. See National &c. Co. v. Georgia &c. Realty Co., 106 Ga. App. 475, 477 (2) (127 SE2d 303) (1962).

It is a fundamental principle of Georgia law that “[f]or every right there shall be a remedy. . . .” OCGA § 9-2-3. However, the consequence of the majority opinion is that, although the evidence in this case has not eliminated the existence of a possible defect in Martin’s pool which resulted in a death, Ms. Johnson-Lemon has no legal means of recovering for her loss. I agree that she cannot sue the independent contractor since the owner accepted the pool after construction. However, according to the majority, she also cannot sue Martin because he hired an independent contractor to build the pool. At least until today, the Georgia courts have never sanctioned such an anomalous result. Heretofore, the injured plaintiff could bring suit against the landlord under OCGA § 44-7-14 on the theory that he accepted the independent contractor’s defectively constructed project. A landlord should not be held liable for defects which he himself did not place or cause to be placed on his property. Colquitt v. Rowland, supra. On the other hand, however, a landlord should not be immune from tort liability for acceptance of a patently defective condition in a structure which he directed to be constructed on the premises by an independent contractor. Because I cannot agree with the sweeping change in this state’s law effectuated by the majority, I dissent.

I am authorized to state that Justice Hines joins in this dissent.

Decided May 3, 1999 Reconsideration denied May 28, 1999. Gray & Hedrick, L. Bruce Hedrick, for appellant. Blank & Associates, A. Russell Blank, Dennis A. Brown, for appellee.