DocketNumber: A12A0756
Citation Numbers: 316 Ga. App. 171, 728 S.E.2d 804, 2012 Fulton County D. Rep. 1956, 2012 WL 2103902, 2012 Ga. App. LEXIS 510
Judges: Mlkell
Filed Date: 6/12/2012
Status: Precedential
Modified Date: 10/18/2024
While walking in a Gwinnett County subdivision, Thomas Kranz’s eardrum was punctured by a branch from a tree overhanging the sidewalk. Kranz sued Jerry Perkins and Nyda Perkins, on whose property the tree was located, claiming negligence. The trial court denied the Perkinses’ motion for summary judgment without explanation. They sought and were granted interlocutory review, and on appeal, they assign error to the trial court’s denial of their motion for summary judgment. For the reasons that follow, we agree and reverse.
This court conducts a de novo review of the grant or denial of a motion for summary judgment. To prevail, the moving party must show that no genuine issue of material fact exists and that the undisputed facts and all inferences and conclusions drawn from them, when viewed in the light most favorable to Kranz as the nonmoving party, warrant judgment as a matter of law.
So viewed, the record reflects that on April 3, 2009, Kranz was pushing his toddler grandson in a stroller as he walked through the subdivision where his daughter lives. Kranz noticed the Perkinses’ tree, with its limbs extending over the sidewalk. The day was sunny and clear, and there was nothing to obstruct Kranz’s view of the tree. He saw the branches obstructing his path, and in order to avoid them, moved off of the sidewalk and began walking on a strip of grass
1. The Perkinses assign error to the trial court’s denial of their motion for summary judgment, arguing that at best, Kranz was a licensee, and their only duty was to avoid wilfully or wantonly harming him.
The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law.2
While the Perkinses argue that Kranz was, at best, a licensee, Kranz first argues that he was an anticipated licensee, and compares the duty of care under such a status to the duty owed an invitee in that “it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises.”
Pretermitting any decision on Kranz’s potential status as a licensee, anticipated licensee, or invitee, he may not recover as a matter of law because the evidence establishes that he had equal knowledge with the Perkinses of the potential danger posed by the tree.
2. If considered to be a licensee, Kranz could not recover because the owner of the premises is liable to a licensee only for wilful or wanton injury.
In an analogous situation, we affirmed the trial court’s grant of summary judgment in favor of a homeowner where the plaintiff fell from a high deck with no railing around it.
3. Kranz argues that he is an anticipated licensee, and, accordingly, the Perkinses owed him a duty of ordinary care, not just a duty to refrain from wilful or wanton conduct. However,
[although a landowner owes a duty to use ordinary care to protect anticipated licensees from dangerous activities being conducted on the premises or from hidden perils, where the alleged negligence arises from a dangerous static condition on the premises, the duty remains not to injure the licensee wilfully or wantonly.10
Kranz argues that the tree is not a static defect because it “grows over time and eventually dies and rots away, constantly changing form.” Kranz asserts that the Perkinses had superior knowledge of
4. Even if Kranz were an invitee, he still may not recover.
Finding no genuine issues of material fact, and that the Per-kinses are entitled to judgment as a matter of law, we reverse.
Judgment reversed.
Petrosky v. Embry Crossing Condo. Assn., 284 Ga. App. 354 (1) (643 SE2d 855) (2007); OCGA§ 9-11-56 (c).
(Punctuation and footnotes omitted.) Boiler v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 695-696 (1) (716 SE2d 713) (2011).
(Citations and punctuation omitted.) Williams v. Truett, 251 Ga. App. 46, 47 (553 SE2d 350) (2001).
OCGA§ 51-3-2 (b).
(Citation and punctuation omitted.) Trulove v. Jones, 271 Ga. App. 681-682 (1) (610 SE2d 649) (2005).
(Citation and punctuation omitted.) Id. at 682 (1).
Id.
Id. at 681.
(Citation and punctuation omitted; emphasis in original.) Id. at 682 (1). Kranz, in his appellee’s brief, argues that a genuine issue of material fact exists as to whether the Perkinses are liable under a theory of negligence per se. We have held that “negligence per se is not liability per se”; therefore, even if the Perkinses could be shown to be negligent per se, Kranz would be precluded from recovering because, as discussed in Division 1, he had equal knowledge of the potential danger presented by the tree. (Punctuation and footnote omitted.) Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 486 (3) (541 SE2d 109) (2000).
(Citations omitted.) Rice v. Elliott, 256 Ga. App. 87 (567 SE2d 721) (2002).
See Trulove, supra (plaintiff who had been on pool deck for an hour had equal knowledge with property owner of static defect that deck lacked railing).
See Pye v. Reagin, 262 Ga. App. 490, 491 (1) (586 SE2d 5) (2003) (tree roots on which invitee tripped are considered a static defect). Kranz also argues that a tree “may blow in the wind, extending or contracting its reach as it moves.” However, as he presents no evidence or testimony indicating that wind was moving the tree branches at the time of his injury, we need not address this point further.
The Perkinses contest Kranz’s argument that he was an invitee not just of his own daughter, but also of “the neighborhood,” as he was visiting the subdivision where she lives.
(Citations omitted; emphasis supplied.) Barnes v. Morganton Baptist Assn., 306 Ga. App. 755, 757 (1) (703 SE2d 359) (2010).
See Weston v. Dun Transp. &c., 304 Ga. App. 84, 88 (1) (695 SE2d 279) (2010) (while issue of whether plaintiff exercised due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated if plaintiff’s knowledge of the risk is clear and palpable).