Vickers v

Merry Land & Inv. Co., 263 Ga. App. 316, 587 S.E.2d 816 (2003). Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a lessor in a lessee’s breach of contract action; pursuant to a lease for roof space to be used for a billboard, the lessee defaulted by interfering with a cellular antenna already placed on the roof, and the lessor provided the proper notice of termination. Tower Projects, LLC v. Marquis Tower, Inc., 267 Ga. App. 164, 598 S.E.2d 883 (2004). Summary judgment was properly granted to a landlord in the landlord’s dispossessory action against a tenant because: (1) the tenant failed to pay the rent timely on at least two prior occasions within the 12 months preceding the payment at issue; (2) the tenant mailed the rent payment on July 10th; (3) although the lease did not specifically state that the rent was to be paid and received by 5:00 p.m., ‘‘paid’’ did not mean ‘‘tendered,’’ and the terms ‘‘normal hours of business’’ and ‘‘by 5:00 p.m.’’ also implied that receipt of 9-11-56 the rent was necessary, rather than just the rent’s tender; (4) the lease provided that written notice of the lease’s cancellation would be given after three late payments; and (5) a claimed conflict between the executive director’s affidavit and a newsletter did not create an issue of material fact as the tenant’s payment was mailed after the deadline set forth in the newsletter. Baker v. Hous. Auth. of Waynesboro, 268 Ga. App. 122, 601 S.E.2d 350 (2004). Trial court properly entered summary judgment for a landlord against a tenant and a guarantor because the tenant admitted that the tenant withheld rent for over one year and the outstanding balances due under the lease and the guaranty were undisputed; the trial court was not required to wait until discovery was completed under O.C.G.A. § 9-11-56(a) as the matter was ripe for a ruling. Vick v. Tower Place, L.P., 268 Ga. App. 108, 601 S.E.2d 348 (2004). After applying the rules of contract construction under O.C.G.A. §§ 13-2-2 and 13-2-3, the Court of Appeals of Georgia upheld an order granting summary judgment to a lessee as the lessee was not required to pay the lessee’s portion of the security related costs under the terms of the lease, according to the Common Area Costs formula contained therein; hence, the lessee was authorized to refuse to pay those costs without being in breach of the lease agreement. Covington Square Assocs., LLC v. Ingles Mkts., Inc., 283 Ga. App. 307, 641 S.E.2d 266 (2007). In a case involving a commercial lease, because the tenant failed to prove all the elements of the tenant’s constructive eviction defense, the landlord was properly granted summary judgment on the landlord’s claim for rent and late fees; but because genuine fact issues remained as to the tenant’s diminution of rent counterclaim when the landlord terminated the water service and for the time period the tenant was without water, as well as regarding the issue of whether the landlord waived a requirement that the tenant install a submeter, the landlord was not entitled to summary judgment regarding these issues. Delta Cleaner Supply Co. v. Mendel Drive Assocs., 286 Ga. App. 227, 648 S.E.2d 651 (2007). 824 While the trial court properly granted summary judgment to a lessee regarding the enforcement of a lease provision barring removal of certain improvements to the leasehold originally made by the lessor’s predecessor-in-interest, despite the lessor’s demand that such be removed, given a non-waiver provision in the lease, and the fact that a demand for reimbursement for insurance premiums paid over the life of the lease could be made at any time, the landlord was entitled to the premiums. Ranwal Props., LLC v. John H. Harland Co., 285 Ga. App. 532, 646 S.E.2d 730 (2007). Specific performance of land sales contract. — In a buyer’s suit seeking specific performance of a land sales contract that contained a clear and unambiguous clause stating that time was of the essence, the trial court properly granted summary judgment against the buyer, due to the buyer’s failure to timely tender additional earnest money, and because that action amounted to a breach authorizing the sellers to terminate the agreement. Chowhan v. Miller, 283 Ga. App. 749, 642 S.E.2d 428 (2007). Because the evidence presented at trial made it clear that a lessor conveyed no ownership interest to a tenant, leaving that tenant with only a right to possess and use the leased property, and more specifically, a usufruct, the tenant did not own an interest in the property, and thus could not pursue an easement by necessity under O.C.G.A. § 44-9-40; hence, summary judgment in the lessor’s favor as to this issue was upheld on appeal. Read v. Ga. Power Co., 283 Ga. App. 451, 641 S.E.2d 680 (2007). In an action seeking specific performance of a land sales contract, because genuine issues of material fact existed as to whether the $45,000 sales price was adequate in relation to the fair market value of the subject property, and whether enforcement of the contract was equitable, the trial court erred in granting the buyers of that land summary judgment. Weeks v. Rowell, 289 Ga. App. 507, 657 S.E.2d 881 (2008). Class action suit for breach of lease. — Trial court properly dismissed a class action suit arising out of a breach of a 9-11-56 lease agreement and filed by a group of uninsured patients against a hospital for failure to state a claim upon which relief could be granted, which the court converted to a motion for summary judgment, as the class members: (1) failed to timely object to the merits of the oral motion; (2) acquiesced to the evidence in support of the motion; and (3) failed to show they were third-party beneficiaries of the agreement, with sufficient standing to sue upon a breach of the agreement’s terms. Davis v. Phoebe Putney Health Sys., 280 Ga. App. 505, 634 S.E.2d 452 (2006). Commercial lease agreements. — In a lessor’s action to enforce the provisions of a commercial lease pursuant to O.C.G.A. § 13-1-11, because a lessee’s predecessor-in-interest failed to strictly comply with a cancellation option in the lease, and time was of the essence, the trial court erred in ruling otherwise, resulting in an expiration of the option due to the failure to timely exercise the option; thus, on remand the lessor was entitled to summary judgment on the lessor’s possession claim and to the past rent due under the lease for the term sought. Piedmont Ctr. 15, LLC v. Aquent, Inc., 286 Ga. App. 673, 649 S.E.2d 733 (2007), cert. denied, 2007 Ga. LEXIS 749 (Ga. 2007). Equipment lease agreements. — In an action arising out of its lessee’s breach of an equipment lease, the lessor was properly granted summary judgment, as a claim that an affidavit from the lessor’s valuation expert was raised for the first time on appeal and thus was not addressed, and the lessee could not complain that the equipment or delivery was defective, as the lessee took the equipment under the lease ‘‘as is.’’ Locke’s Graphic & Vinyl Signs, Inc. v. Citicorp Vendor Fin., Inc., 285 Ga. App. 826, 648 S.E.2d 156 (2007). Injunctive relief against housing authority. — Since there was no evidence of a continuing trespass and since a housing authority had an adequate remedy at law, summary judgment granting an injunction barring entry on the housing authority’s property by a husband and wife was reversed. Strange v. Hous. Auth. of Summerville, 268 Ga. App. 403, 602 S.E.2d 185 (2004). 825 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) Owners and occupiers of land. — Homeowners’ summary judgment motion should have been granted as the homeowners had no actual or constructive notice of a problem with a deck that collapsed, injuring the injured party; the home had been inspected one year earlier, and no problem with the deck was identified, although the inspection report indicated that the deck was not bolted to the house. Nailing a deck to a house was acceptable at the time of the inspection. Wingo v. Harrison, 268 Ga. App. 156, 601 S.E.2d 507 (2004). Summary judgment on zoning issue. — Because no evidence was presented regarding the content of the relevant county zoning ordinance at the time a landowner purchased the land in question, and whether the use of the property as a landfill was prohibited by the ordinance, and because laches did not apply against the state in which a zoning issue was involved, summary judgment was improperly granted in favor of a landowner. Further, the trial court erred in finding that the landfill was grandfathered as a non-conforming use under that zoning ordinance. Flippen Alliance for Cmty. Empowerment, Inc. v. Brannan, 267 Ga. App. 134, 601 S.E.2d 106 (2004). Breach of warranty of title. — In a breach of warranty of title action, the trial court did not err in granting summary judgment in favor of the title insurance company despite the company’s failure to object to title within 30 days of the date the sales contract was executed since the sales contract provided that no provisions survived closing, including the title-objection; thus, after the closing, the provisions of the warranty deed superceded any time limitations regarding objections to the title in the contract. Weiss v. Old Republic Nat’l Title Ins. Co., 262 Ga. App. 120, 584 S.E.2d 710 (2003). Quiet title actions. — In quiet title actions initiated by each party regarding the same parcel of residential property, the trial court properly adopted a special master’s order granting summary judg- 9-11-56 ment in favor of a bank, who was the assignee of the holder of the loan secured by the property, finding that fee simple title vested in the bank, as the transfer of the property to the assignee of the holder of the security deed was valid when the deed under power was recorded; in the absence of any court order invalidating or setting aside that deed, the deed legally vested title in the property in the assignee of the holder of the security deed, and thus in the bank. Vereen v. Deutsche Bank Nat’l Trust Co., 282 Ga. 284, 646 S.E.2d 667 (2007), cert. denied, 552 U.S. 1143, 128 S. Ct. 1089, 169 L. Ed. 2d 811 (2008). Action against partners for payment of judgment against another partner. — In a case in which the plaintiff sued a limited partnership and two of its general partners for payment of a judgment gained against another general partner (a corporation), the trial court properly granted the defendants’ motion for summary judgment because they were not parties to the prior suit. Hartley v. Shenandoah, Ltd., 170 Ga. App. 868, 318 S.E.2d 508 (1984). Breach of fiduciary duty. — When a company sued a company’s accountants for breach of fiduciary duty regarding a sale of the company’s assets, summary judgment was properly granted in favor of the accountants because the evidence was insufficient to create a factual dispute as to whether the accountants exercised a controlling influence over the will, conduct, and interest of the company as required under O.C.G.A. § 23-2-58 for a fiduciary relationship to arise. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004). Breach of settlement agreement. — Trial court properly entered summary judgment for a company, the company’s subsidiary, and an employee in an injured party’s claim that the company breached its settlement agreement with the injured party by adding a term barring the injured party from the company’s premises as the company’s desire to keep the injured party off of the company’s property was independent of the settlement agreement and did not change or vary the terms of the settlement agreement; a private property owner may at any time restrict 826 persons from coming onto its property. Batayias v. Kerr-McGee Corp., 267 Ga. App. 848, 601 S.E.2d 174 (2004). Issue of nonmaterial fact in beneficiary’s suit for mishandling of funds. — Although there was a genuine issue of fact as to whether a savings and loan association had knowledge of a court order requiring court permission before encroaching upon the corpus of a trust, it was not a material fact because, even if the association had such knowledge, the association was permitted by O.C.G.A. § 7-1-190 to pay out the funds on the order of the trustee under the presumption that the trustee was acting in compliance with the trustee’s fiduciary duties, so summary judgment was properly granted in favor of the association in the beneficiaries’ suit for mishandling of the trust. Chelena v. Georgia Fed. Sav. & Loan Ass’n, 256 Ga. 336, 349 S.E.2d 180 (1986). Misappropriation of trade secrets. — Because a doctor’s patient list was not a trade secret within the meaning of the Georgia Trade Secrets Act, O.C.G.A. § 10-1-761(4)(A), and because an attorney the doctor sued for misappropriation was not in the same industry as the doctor, the attorney’s possession of the list did not reduce the doctor’s competitive advantage in the field, which was the main purpose of protecting a trade secret; thus, the attorney was entitled to summary judgment on the doctor’s claim of misappropriation. Vito v. Inman, 286 Ga. App. 646, 649 S.E.2d 753 (2007), cert. denied, 2007 Ga. LEXIS 770 (Ga. 2007). Promissory estoppel and reasonable reliance. — Because promissory estoppel involves reasonable reliance, and questions of reasonable reliance are usually for the jury to resolve, the grant of summary judgment to the defendant was improper because jury issues remained on the plaintiff ’s promissory estoppel claim. Ambrose v. Sheppard, 241 Ga. App. 835, 528 S.E.2d 282 (2000). Tortious interference with business relations. — Trial court properly granted a hospital’s summary judgment motion pursuant to O.C.G.A. § 9-11-56 as to a doctor’s claims for tortious interference with business relations because the doctor’s claim was precluded as a matter of 9-11-56 law by the stranger doctrine. Mulligan v. Brunswick Mem’l Hosp. Auth., 264 Ga. App. 39, 589 S.E.2d 851 (2003). In an action alleging both tortious interference with business relations and a tortious interference with contract filed by an uncle against a nephew and the nephew’s wife, summary judgment was properly entered against the uncle, as the evidence in support of the claims failed to show that the nephew had an improper purpose; more specifically, as regarding the former claim, the evidence amounted to either hearsay or double hearsay, and as to the second claim, the nephew could act with privilege with regards to the contract at issue. Kirkland v. Tamplin, 285 Ga. App. 241, 645 S.E.2d 653 (2007), cert. denied, 2007 Ga. LEXIS 616 (Ga. 2007); 552 U.S. 1297, 128 S. Ct. 1750, 170 L.Ed.2d 541 (2008). Tortious interference with employment relationship. — Summary judgment was properly entered for a company, the company’s subsidiary, and the company’s employee in an injured party’s tortious interference with employment relationship claim as the injured party was an at-will employee of a contractor working at the company’s plant, and the action of requesting that the injured party leave the premises was not malicious and did not fit within the definition of wrongful conduct. Batayias v. Kerr-McGee Corp., 267 Ga. App. 848, 601 S.E.2d 174 (2004). Tortious interference with contracts. — Buyer’s tortious interference with contracts claims were properly disposed of on summary judgment as: (1) all parties to an interwoven contractual arrangement were not liable for tortious interference with any of the contracts or business relationships; and (2) a claim for tortious interference with contractual relations could not be predicated upon an allegedly improper filing of a lawsuit. BKJB P’ship v. Moseman, 284 Ga. App. 862, 644 S.E.2d 874, cert. denied, 2007 Ga. LEXIS 558 (Ga. 2007). Business relationship. — Proof that a defendant was no stranger to the business relations at issue is fatal to a claim of tortious interference with business relations. By offering the services of off-duty police officers to provide private security 827 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) at baseball games, a security company brought a city and the city’s police department into the business relationship. The stranger doctrine foreclosed the security company’s tortious interference with a business relationship claim brought against the city and police supervisors based on the supervisors’ decision to deny permission to the off-duty officers to provide private security through the security company, and summary judgment in favor of the city and the police supervisors was affirmed. Cox v. City of Atlanta, 266 Ga. App. 329, 596 S.E.2d 785 (2004). Storage facility owner’s duty of care. — Disputed facts regarding whether a storage facility owner fulfilled the owner’s duty of exercising ordinary care in keeping its approaches safe by providing a walk board with no means of securing the board to a loading dock or moving van precluded summary judgment. McGinnis v. Admiral Moving & Storage Co., 223 Ga. App. 410, 477 S.E.2d 841 (1996). Usury. — Trial court properly granted summary judgment to a water company in the purchaser’s complaint that a late fee for unpaid water bills was a cloak for a usurious loan as there was no evidence giving rise to a triable issue regarding the agreement to provide water. Mallard v. Forest Heights Water Works, Inc., 260 Ga. App. 750, 580 S.E.2d 602 (2003). Pending action. — Motion for summary judgment will lie on the ground of pendency of the former original action, in a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98 (1972). Interspousal immunity doctrine barred a suit by a husband’s estate against a wife’s estate for injuries sustained by the husband in an auto accident in which the wife was driving the auto occupied by the husband; the danger was that the wife’s estate could have conceded fault to get insurance proceeds for both 9-11-56 estates, and the trial court’s summary judgment in favor of the wife’s estate was affirmed. Larkin v. Larkin, 268 Ga. App. 127, 601 S.E.2d 487 (2004). Intentional infliction of emotional distress. — Trial court properly entered summary judgment against an uncle, and in favor of the uncle’s nephew and the nephew’s wife, on the uncle’s intentional infliction of emotional distress claim, as the complained of statements amounted to common expressions from family members and a common vicissitude of ordinary life, though given in a threatening tone of voice, and were not extreme and outrageous. Kirkland v. Tamplin, 285 Ga. App. 241, 645 S.E.2d 653 (2007), cert. denied, 2007 Ga. LEXIS 616 (Ga. 2007); 552 U.S. 1297, 128 S. Ct. 1750, 170 L.Ed.2d 541 (2008). Because an employee failed in the burden of showing that the conduct and behavior of the employee’s former manager did not, as a matter of law, qualify as extreme and outrageous conduct, the trial court properly granted summary judgment as to the issue of liability to the employee’s former employer and former manager; moreover, while comments made within the context of one’s employment might be horrifying or traumatizing, the comments were generally considered a common vicissitude of ordinary life. Wilcher v. Confederate Packaging, Inc., 287 Ga. App. 451, 651 S.E.2d 790 (2007). Official immunity. — Trial court properly granted summary judgment to a county school board and the board’s superintendent in a parents negligence action arising out of an attack on school grounds that injured their daughter as the board and the superintendent presented sufficient evidence that a school safety plan was in place at the elementary school at the time the child was attacked, entitling the board and the superintendent to official immunity barring the parents’ negligence claims. Leake v. Murphy, 284 Ga. App. 490, 644 S.E.2d 328 (2007), cert. denied, 2007 Ga. LEXIS 671 (Ga. 2007). In a tort action for personal injuries and property damage arising from an auto collision filed against a city and the city’s police officer, the trial court properly granted summary judgment to the officer, 828 given that the officer was engaged in a discretionary function of responding to an emergency situation at the time the accident at issue occurred. Weaver v. City of Statesboro, 288 Ga. App. 32, 653 S.E.2d 765 (2007), cert. denied, 2008 Ga. LEXIS 221 (Ga. 2008). Personal injury. — Because the plaintiff was injured in a restaurant by an exploding bottle, the fact that the plaintiff ’s evidence did not prove definitively which of the two manufacturers supplied the particular bottle — or, indeed, that the bottle’s disintegration and the plaintiff ’s subsequent injuries were due to fault on the part of either manufacturer — was of no significance in determining whether summary judgment should be granted against the plaintiff. Scott v. Owens-Illinois, Inc., 173 Ga. App. 19, 325 S.E.2d 402 (1984). Defendant insurer was properly granted summary judgment on a claim by the plaintiffs, a postal worker and spouse, for underinsured motorist benefits in a case in which the plaintiffs received $95,554 from the tortfeasor who injured the postal worker, representing the tortfeasor’s cumulative policy limits of $100,000 less $4,445 that was paid to the postal service for damage to a postal truck, because, even though $34,666 of the $95,554 went to a workers’ compensation program and a health insurer on their subrogation claims, the subrogation sums represented money that the postal worker had already recovered in the form of workers’ compensation and health benefits coverage for some of the worker’s damages; thus, the subrogation claims did not constitute ‘‘payment of other claims or otherwise’’ that reduced the tortfeasor’s available coverage. The plaintiffs recovered more than their available $75,000 in uninsured/underinsured motorist coverage, and the trial court was correct that the tortfeasor was not underinsured for purposes of O.C.G.A. § 33-7-11(b)(1)(D)(ii). Thurman v. State Farm Mut. Auto. Ins. Co., 260 Ga. App. 338, 579 S.E.2d 746 (2003). Trial court properly granted summary judgment to the amusement park operator on the injured party’s personal injury claim after the party was struck in the 9-11-56 face with a lap restraint bar as the party did not show that the ride was a perilous instrumentality, that the amusement park operator had a superior knowledge of the hazard, or that the amusement park operator was in exclusive control of the car the party was getting into at the time of the accident such that the party should have been allowed to apply the doctrine of res ipsa loquitur to the party’s case. Harrelson v. Wild Adventures, Inc., 263 Ga. App. 569, 588 S.E.2d 341 (2003). Summary judgment was properly granted to a warehouse corporation because the record did not reflect a genuine issue of material fact as to causation in a worker’s claim for an injury suffered in the warehouse since there was no evidence the worker actually tripped. Pennington v. Wjl, 263 Ga. App. 758, 589 S.E.2d 259 (2003). Trial court properly granted summary judgment in favor of a sheriff ’s deputy who was sued by a motorist who was injured when the motorist’s car was struck by a car being driven by a suspect fleeing from police. Standard v. Hobbs, 263 Ga. App. 873, 589 S.E.2d 634 (2003). Summary judgment in favor of a trading firm and a security company on a personal injury action was affirmed because the action was based on damages to victims of a shooting rampage by a former customer of the trading company; the shooter’s criminal act was an intervening cause to any possible foreseeable injury the firm might have created, and the security company did not owe any of the victims of the rampage a duty. Brown v. All-Tech Inv. Group, Inc., 265 Ga. App. 889, 595 S.E.2d 517 (2004). Trial court erred in granting summary judgment for a school board in an injured party’s personal injuries claim based on the injured party’s failure to present evidence that the injuries were actually caused by a defective condition in a slide as the argument was not presented in the school board’s motion and the injured party had no opportunity to respond to it; the injured party did not have a full and final opportunity to meet and controvert the ground for summary judgment upon which the trial court relied, and the summary judgment could not be affirmed un- 829 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) der the right for any reason rule. Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004). Summary judgment in favor of a ranch owner was affirmed in a case brought against the owner by an injured person who believed that the injured person had been hit by bullet shrapnel at a shooting range on the ranch owner’s property but did not see the object after the bullet struck the injured person, did not know what had happened to the bullet, did not know who had shot the rifle, and did not know what type of rifle the person had used or the caliber of bullet involved; the injured person was unaware of anyone else being hit with any debris, and the injured person’s expert testified to not having an opinion of what struck the injured person and could not say whether any particular target at the range would have caused a bullet to ricochet to the spot on which the injury occurred. Hobday v. Galardi, 266 Ga. App. 780, 598 S.E.2d 350 (2004). In a personal injury action against a utility and the utility’s independent contractor, the trial court properly granted summary judgment against a cable installer finding that: (1) the utility was not vicariously liable to the installer for the allegedly negligent acts of the utility’s contractor; (2) the utility’s right to inspect the work did not render the utility liable for the contractor’s negligence as that right was intended for the limited purpose of making sure the contractor competently carried out the terms of the contract; (3) the utility was not liable for the utility’s failure to flag a power line trench in which the installer fell and was injured, as surface markings showing the path of the trench would not have informed the installer of the danger, and the installer was not injured as a result of excavating or blasting; and (4) the High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., did not apply to afford the installer a remedy. Perry v. Georgia Power Co., 278 Ga. App. 759, 629 S.E.2d 588 (2006). Retailer was properly granted summary 9-11-56 judgment in a personal injury action filed against the retailer by one of the retailer’s customers under the doctrine of res ipsa loquitur as the customer failed to show that the retailer retained exclusive control over the box that fell from a stationary position on a shelf and allegedly caused the customer’s injuries, and the customer conceded that there was no evidence that the retailer had superior knowledge of an allegedly dangerous condition; further, the retailer was not required to show that the retailer’s employees carried out an inspection of the shelved items within a reasonable time period before the incident. Aderhold v. Lowe’s Home Ctrs., Inc., 284 Ga. App. 294, 643 S.E.2d 811 (2007). In a personal injury action arising from the electrocution of two construction workers while operating a crane leased by a buyer and seller of heavy equipment, the trial court properly denied summary judgment to the buyer/seller of the crane as material fact issues remained as to the condition of the crane when the crane left the buyer/seller’s possession, and as to the element of causation; moreover, the learned intermediary doctrine did not apply. Dozier Crane & Mach., Inc. v. Gibson, 284 Ga. App. 496, 644 S.E.2d 333 (2007). In a personal injury action arising from a fall suffered by a lessee’s visitor from a pull-down staircase, because no questions of fact remained as to an out-of-possession landlord’s liability for failure to repair, defective construction, or failure to warn, the landlord was properly granted summary judgment as to those issues. Gainey v. Smacky’s Invs., Inc., 287 Ga. App. 529, 652 S.E.2d 167 (2007). Because a driver failed to present sufficient record evidence that a city received timely ante litem notice that the driver sustained a personal injury, much less the nature, character, or particularities of any such injury, but the notice submitted merely established that the driver sustained property damage, the driver did not substantially comply with O.C.G.A. § 36-33-5(b); thus, the trial court properly granted the city summary judgment on that issue. Harris-Jackson v. City of Cochran, 287 Ga. App. 722, 652 S.E.2d 607 (2007). Recreational Property Act. — Trial court did not err in granting summary 830 judgment to a city on allegations of negligence asserted against the city by an injured motorcycle driver as the Recreational Property Act (Act), O.C.G.A. § 51-3-20 et seq., prevented the driver from recovering from the city based on allegations of simple negligence; moreover, the Act clearly applied because it was undisputed that the injuries occurred when the driver collided with the cable fence on the city’s recreational property, and the city permitted the general public to use the park and open field where the accident occurred for recreational purposes without charge. Carroll v. City of Carrollton, 280 Ga. App. 172, 633 S.E.2d 591 (2006). Wrongful death action brought by parent. — Despite evidence of a parent’s cruel treatment of the decedent, the trial court erred in finding that the parent forfeited parental rights, and thus lost the status as a parent and, in so doing, lost the right to recover as an heir of the decedent’s estate as the loss of parental power did not necessarily result in a parent’s loss of a right to inherit as an heir from the estate of that parent’s child, short of having the parent’s rights terminated prior to the child’s death; hence, summary judgment against the parent on the issue was reversed. Blackstone v. Blackstone, 282 Ga. App. 515, 639 S.E.2d 369 (2006). Wrongful death. — In a wrongful death action, because the employer of a driver was not responsible for the personal activities the employee was involved in at the time of the fatal accident that killed the decedent, and the special mission exception did not apply, the employer was properly granted summary judgment in a suit filed against the employer by the decedent’s estate and survivors. Banks v. AJC Intl., Inc., 284 Ga. App. 22, 643 S.E.2d 780 (2007). In a wrongful death action filed against a county sheriff ’s deputy and the county, the administrator’s claim that the deputy failed to report an accident and failed to render aid, in violation of both O.C.G.A. §§ 40-6-270(a)(3) and 40-6-273 were rejected, and the deputy and the county were erroneously denied summary judgment as the evidence showed that: (1) the 9-11-56 deputy radioed for officer assistance; (2) the two officers looked for a second vehicle that might have been involved in the accident, to no avail; and (3) based on the results of the investigation, no evidence existed that the deputy breached the duty imposed by § 40-6-273 Purvis v. Steve, 284 Ga. App. 116, 643 S.E.2d 380 (2007), cert. denied, 2007 Ga. LEXIS 517 (Ga. 2007). In a wrongful death action filed on behalf of a deceased employee, because jury questions remained as to whether the defenses of assumption of the risk and equal knowledge of danger barred the claims of negligence, negligence per se, respondeat superior, and premises liability, and as to whether the claims were barred by the exclusive remedy provision of the Workers’ Compensation Act, summary judgment to the decedent’s employer was reversed. Champion v. Pilgrim’s Pride Corp. of Del., Inc., 286 Ga. App. 334, 649 S.E.2d 329 (2007), cert. denied, 2008 Ga. LEXIS 83 (Ga. 2008). Because the trial court properly found that a decedent’s son, as a sole heir, could recover at least a portion of a settlement under 45 U.S.C. § 51 for the wrongful death of the decedent, and because the decedent father’s widow validly waived a claim under 45 U.S.C. § 59, pursuant to a prenuptial agreement, the court did not err in granting partial summary judgment to the heir. But, the matter was remanded for the trial court to determine how the proceeds at issue should be divided between the survival and wrongful death claims. Tadlock v. Tadlock, 290 Ga. App. 568, 660 S.E.2d 430 (2008). Wrongful death in workplace. — Because a subsidiary had no ownership interest in the equipment that killed an employee, and to the extent that the subsidiary was acting in concert or in a joint enterprise with the employer/owner, O.C.G.A. § 34-9-11 of the Workers’ Compensation Act barred the spouse’s wrongful death suit; consequently, the trial court did not err in granting summary judgment to the subsidiary pursuant to O.C.G.A. § 9-11-56(c). Jones v. Macon Soils, Inc., 270 Ga. App. 298, 606 S.E.2d 316 (2004). Dog bite cases. — In a plaintiff ’s suit against the dog owners to recover for 831 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) injuries sustained from a dog bite, summary judgment against the plaintiff was improper because the plaintiff ’s evidence that the owners’ dog had bitten another person on the hand before the incident, that one of the owners had made a statement that the owner did not allow the dog in the house with guests because the dog could bite somebody, and that the same owner had admitted to the plaintiff ’s mother that the owner should have warned the plaintiff to stay away from the dog raised a jury question as to whether the owners knew that the dog had a propensity to bite; moreover, the evidence did not show that the plaintiff assumed the risk as a matter of law by ignoring the dog’s growl; since a dog’s growl does not put a dog owner on notice of the dog’s propensity to bite, it is not plain evidence that a third party actually knew about and appreciated the danger that the dog might bite. Raith v. Blanchard, 271 Ga. App. 723, 611 S.E.2d 75 (2005). Premises liability and injuries by animals. — True ground of premises liability is the landowner’s or occupier’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property; a trial court’s summary judgment dismissing claims against real estate agents and brokers for injuries arising from a dog bite while the injured person was viewing listed property for sale was affirmed because there was no showing that the real estate agents and brokers had any knowledge that the dogs were dangerous. Gibson v. Rezvanpour, 268 Ga. App. 377, 601 S.E.2d 848 (2004). In an action to enjoin enforcement of a judgment, the trial court improperly entered, sua sponte, summary judgment in favor of the judgment creditors because the trial court’s judgment was based on an issue not previously raised by the parties, and judgment was entered without giving the judgment debtor a full opportunity to respond to the issues raised. Studenic v. Birk, 260 Ga. App. 364, 579 S.E.2d 788 (2003). Trial court erred in granting summary 9-11-56 judgment to the dog owners on the worker’s negligence claim after the worker was knocked down allegedly by the dog owners’ dog as a genuine issue of material fact existed about whether the one dog owner voluntarily undertook a duty to restrain the dogs on the owner’s premises and, if so, whether that voluntary undertaking was negligently performed. Osowski v. Smith, 262 Ga. App. 538, 586 S.E.2d 71 (2003). When premises owner was deemed to have superior knowledge of the hazard that was alleged to have caused the slip and fall, based on the testimony of the injured patron’s daughter that the owner had actual knowledge of the hazard, summary judgment in the owner’s favor was unauthorized, and the appeals court erred in finding otherwise. Dickerson v. Guest Servs. Co., 282 Ga. 771, 653 S.E.2d 699 (2007). Slip and fall by pedestrian in pothole. — Trial court erred in denying summary judgment to both a city and the Department of Transportation, in a slip and fall case filed against them by a pedestrian, as: (1) the pedestrian conceded that the pedestrian was a licensee with equal constructive knowledge of any hazard posed by potholes; (2) the pothole in which the pedestrian fell was not a concealed or camouflaged danger; and (3) no evidence was presented that the pothole was maintained wilfully or wantonly. Ga. DOT v. Strickland, 279 Ga. App. 753, 632 S.E.2d 416 (2006). Normal household items causing fall by licensee in home. — In a licensee’s personal injury action, the trial court properly found that a homeowner was entitled to summary judgment as a matter of law as the homeowner owed no duty to the licensee to warn of the obviousness of a broom handle, tools on the floor, or the couch corner, which the licensee alleged caused a fall, as such were plainly visible and not hidden perils. Ellis v. Hadnott, 282 Ga. App. 584, 639 S.E.2d 559 (2006). Slip and fall in businesses. — In a slip and fall case based on an injured party’s fall in a truck stop’s shower, the truck stop owner was not entitled to summary judgment because the owner’s admitted lack of a regular inspection proce- 832 dure created a genuine issue of material fact as to whether the owner had constructive knowledge of the condition that caused the injured party to fall, and it was not shown that the injured party failed to exercise care for the party’s own safety as the injured party removed two used bars of soap from the shower floor. Pylant v. Samuels Inc., 262 Ga. App. 358, 585 S.E.2d 696 (2003). In a slip and fall case brought by an injured person who alleged that the fall was caused by a newly waxed tile floor in a golf course clubhouse, the trial court erred in finding, based on some deposition responses, that the injured person had abandoned the claim that the wax had caused the fall and was claiming only that the tile floor, not the wax on the floor, caused the fall, and that the injured person knew walking on a tile floor with spikes was risky; the injured person’s complaint and the evidence offered that the injured person had not unequivocally conceded that the wax on the floor did not cause the fall, and the trial court’s summary judgment in favor of the premises owner was reversed. Berson v. Am. Golf Corp., 265 Ga. App. 772, 595 S.E.2d 622 (2004). In a slip and fall case, an injured person’s knowledge of uneven, unlit steps at the place where the injured person fell, obtained from ascending the steps once in the dark, did not equal a hotel’s knowledge from sweeping the area daily and maintaining the steps regularly; thus, a trial court’s denial of the hotel’s summary judgment motion was affirmed. Mac International-Savannah Hotel, Inc. v. Hallman, 265 Ga. App. 727, 595 S.E.2d 577 (2004). Summary judgment for a grocery store in a slip and fall case was proper because an injured person slipped in water caused by another customer and the grocery store had no actual or constructive knowledge of the water. Mock v. Kroger Co., 267 Ga. App. 1, 598 S.E.2d 789 (2004). Mere fact that an injured person slipped and fell while on a department store’s premises did not give rise to liability absent some evidence that a foreign substance was present; a department store in a slip and fall case was entitled to sum- 9-11-56 mary judgment, and a trial court’s denial of the department store’s summary judgment motion was reversed because an injured person did not see or touch anything on the floor that caused the injured person to fall but was merely supposing or hypothesizing that there was some sort of substance on the ground that caused the injured person to fall, and a department store employee testified that the floor was clean and dry, and that no foreign substance was on the floor after the fall. Belk Dep’t Store of Charleston, S.C., Inc. v. Cato, 267 Ga. App. 793, 600 S.E.2d 786 (2004). Trial court erred in denying a corporation’s motion for summary judgment on a customer’s claim seeking damages for injuries the customer sustained by slipping and falling on a wet floor after entering a restaurant because the customer was aware of the hazard and the evidence did not show that people who worked at the restaurant possessed superior knowledge that the floor was wet and posed a hazard to customers. Flagstar Enters., Inc. v. Burch, 267 Ga. App. 856, 600 S.E.2d 834 (2004). Summary judgment for a restaurant in a slip and fall case was proper and was affirmed because there was no showing that the restaurant had actual or constructive knowledge of the grease which allegedly caused the slip and fall that was superior to that of the injured person; an inspection by the restaurant manager only 5 to 10 minutes before the incident was sufficient, as a matter of law, to establish that the restaurant exercised ordinary care under O.C.G.A. § 51-3-1 to inspect the premises and keep the premises safe. Markham v. Schuster’s Enters., Inc., 268 Ga. App. 313, 601 S.E.2d 712 (2004). In a customer’s slip and fall action against a store, because genuine issues of material fact existed as to whether the store had superior knowledge of the alleged water on the floor where the customer allegedly fell, summary judgment was erroneously entered in the store’s favor. Durham v. Patel, 282 Ga. App. 437, 638 S.E.2d 851 (2006). In a slip and fall action filed by a mall patron against the mall’s owner and the mall’s cleaning contractor, summary judg- 833 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) ment was properly granted to the latter as no evidence was presented that the contractor wrongfully failed to clean the spot on which the patron slipped; however, summary judgment in the owner’s favor was reversed as the owner failed to present evidence of any reasonable inspection procedures, giving the patron the benefit of an inference of the owner’s constructive knowledge of a hazard. Prescott v. Colonial Props. Trust, Inc., 283 Ga. App. 753, 642 S.E.2d 425 (2007). Because the trial court correctly determined that the parking lot in which a customer fell was owned and maintained by the grocery store’s landlord, not by the grocery store, and was not an ‘‘approach’’ to the premises for purposes of O.C.G.A. § 51-3-1, the grocery store was properly granted summary judgment as to the issue of liability in a customer’s personal injury suit filed against the store. Robinson v. Kroger Co., 284 Ga. App. 488, 644 S.E.2d 316 (2007). Because an injured employee testified that the rain, and not any sloping surface, caused the slip and fall at issue, the employee was charged with equal knowledge of the rainy day conditions, and as a result no evidence was presented that the hospital exposed the employee to any unreasonable risk of harm; thus, the trial court erred in denying the employer’s motion for summary judgment. Sunlink Health Sys. v. Pettigrew, 286 Ga. App. 339, 649 S.E.2d 532 (2007). In a slip and fall case filed by a retailer’s patron alleging a breach of the retailer’s duty to keep the retailer’s premises reasonably safe, the trial court properly granted summary judgment to the retailer on the issue of whether the retailer’s nearby employees were in a position to discover the hazard on which the patron slipped, specifically a grape on the floor; however, in the absence of clear evidence of how long the grape was present on the floor, and in the absence of evidence that the retailer actually carried out its inspection procedures, the retailer could not show as a matter of law that the retailer 9-11-56 lacked constructive knowledge of the hazard which caused the patron’s fall. Blocker v. Wal-Mart Stores, Inc., 287 Ga. App. 588, 651 S.E.2d 845 (2007). Court of appeals upheld an order granting summary judgment to a janitorial services company on claims filed against the company by a premises owner’s invitee for damages sustained by the invitee resulting from a slip and fall on the owner’s premises as the janitorial services company was an independent contractor and not an owner occupier of the premises where the invitee fell, and hence owed no contractual duty to the invitee. Taylor v. AmericasMart Real Estate, LLC, 287 Ga. App. 555, 651 S.E.2d 754 (2007). In a personal injury action arising out of a slip and fall, because jury questions existed as to whether a premises owner’s inspection procedure was reasonable, the appeals court refused to say that the owner lacked constructive knowledge of a hazard that allegedly caused a slip and fall as a matter of law. Thus, summary judgment entered in favor of the owner was reversed. Gibson v. Halpern Enters., 288 Ga. App. 790, 655 S.E.2d 624 (2007). In a premises liability action against a retailer, because the patron failed to show proof that a single employee of the retailer was in the immediate area of the spill that allegedly caused the patron’s fall, and could have easily seen and removed the spill prior to the slip and fall, or proof that the liquid had been there for a sufficient length of time that the retailer should have discovered and removed the spill during a reasonable inspection and: (1) inasmuch as the purported hazard was not readily visible to the patron; and (2) the patron failed to establish that the retailer’s employees, who were at least 20 to 30 feet away, could have easily seen and removed the spill, or that the liquid had been on the retailer’s floor long enough that the retailer should have discovered and removed the spill during a reasonable inspection, the trial court erred in denying the retailer’s motion for summary judgment as to the retailer’s liability to the patron. Kmart Corp. v. McCollum, 290 Ga. App. 551, 659 S.E.2d 913 (2008). Because genuine material fact issues remained as to whether a supermarket’s 834 inspection procedures in the area in which a customer fell were reasonable and whether a reasonable inspection procedure would have detected a mixture of blood and water on the floor, summary judgment in favor of the supermarket was reversed; moreover, the appeals court rejected the supermarket’s claim that the customer had equal knowledge of the hazard since the customer had previously walked down the aisle before the customer fell there. Food Lion, LLC v. Walker, 290 Ga. App. 574, 660 S.E.2d 426 (2008). Summary judgment was proper because no evidence showed an office park knew of, or caused, material to collect at the place a pedestrian slipped on steps, there was no breach of a duty to discover the leaves, and the pedestrian did not show that handrails were required on the steps. Porter v. Omni Hotels, Inc., 260 Ga. App. 24, 579 S.E.2d 68 (2003). Owner of a grocery store was erroneously granted summary judgment in a negligence suit by a store patron who slipped on a grape and fell as the testimony regarding the manager’s unobstructed view of the area in which the fall occurred, the manager’s admission that the manager could have seen the grape, and the evidence that the manager and two other employees were in the immediate vicinity and could easily have removed the hazard had they seen it, all revealed that there was a genuine issue of material fact as to whether the store owner had constructive knowledge of the dangerous condition. Dix v. Kroger Co., 257 Ga. App. 19, 570 S.E.2d 89 (2002). Summary judgment should have been granted to a property owner in a customer’s suit to recover for injuries sustained when the customer slipped and fell on a bean on the floor of the owner’s store because the owner did not have actual notice of the bean, and the evidence was insufficient to show that the owner had constructive notice of the bean, in that no bean was seen during an inspection of the area in which the customer fell five minutes before the fall, and no evidence showed that the owner’s employees were in the immediate vicinity of the fall. Kroger Co. v. Williams, 274 Ga. App. 177, 617 S.E.2d 160 (2005). 9-11-56 Store owner was entitled to summary judgment in an action brought by a client who fell upon an allegedly slippery sidewalk because the plaintiff did not show that the sidewalk was negligently painted, and the record proved exactly the contrary. Caven v. Warehouse Home Furnishings Distribs., Inc., 209 Ga. App. 706, 434 S.E.2d 532 (1993). Slip and fall in other cases. — Executive Committee of the Baptist Convention was not entitled to summary judgment on the injured party’s claim arising out of injuries sustained when the injured party fell in a pothole while attending a women’s conference sponsored by the church because whether the injured party’s failure to observe the defect amounted to a lack of reasonable care was a jury question. Thomas v. Exec. Comm. of the Baptist Convention, 262 Ga. App. 315, 585 S.E.2d 217 (2003). Trial court erred in granting an owner’s summary judgment motion in a slip and fall case brought by an injured party, as questions remained as to the owner’s liability because: (1) the owner was on constructive notice as to the condition of a drainage culvert; (2) a reasonable inspection would have revealed that the cement surrounding the drainage culvert was slanted and had not been painted to alert pedestrians to any danger; (3) the injured party could not have seen the dramatic slope of the culvert from the injured person’s vantage point on the median and could not appreciate the danger involved; (4) that the rough uneven pavement was a static condition did not automatically absolve the owner; and (5) the failure of the injured party to watch every step did not require summary judgment against the injured person. Hagadorn v. Prudential Ins. Co., 267 Ga. App. 143, 598 S.E.2d 865 (2004). Premises owner was properly granted summary judgment in an occupant’s personal injury action filed against it as the uneven and unstable brick-paved walkway where the occupant fell was an open and obvious static condition which the occupant was presumed to have knowledge of, given that the occupant had successfully traversed the area before; moreover, while the occupant might have 835 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) disagreed with the trial court’s application of the law to the facts presented, that disagreement did not warrant reversal. Nemeth v. RREEF Am., LLC, 283 Ga. App. 795, 643 S.E.2d 283 (2007). Trial court did not err in granting summary judgment to a seller in a buyer’s personal injury action alleging negligence and nuisance as: (1) speculation as to what caused the buyer’s fall was insufficient to sustain the former; and (2) evidence was lacking that the seller created, continued, or maintained the alleged nuisance, or controlled the release of a discharge on the property that allegedly caused the buyer’s slip and fall. Grinold v. Farist, 284 Ga. App. 120, 643 S.E.2d 253 (2007). In a slip and fall case, the trial court properly granted summary judgment to a premises owner on grounds that: (1) no material issue of fact remained as to whether a roof repair contractor’s injuries were caused by the owner’s failure to keep the subject premises safe; (2) the contractor failed to present any evidence that a foreign substance or any unusual hazard on the roof surface caused the fall; (3) it was not raining on the day of the fall; and (4) prior to the fall, the contractor inspected the roof by walking the length of the roof and looking at the roof from below, satisfied that the area was safe. Hardnett v. Silvey, 285 Ga. App. 424, 646 S.E.2d 514 (2007). Slip and fall in homes. — Evidence that showed: (1) that a caretaker who was hired to care for a homeowner’s invalid wife used stairs in the homeowner’s house six to eight times before the caregiver was injured when the caregiver’s knee buckled while carrying laundry down the stairs; (2) that the caregiver did not slip on a foreign substance that was on the stairs; and (3) that the stairs were properly manufactured and maintained, warranted summary judgment for the homeowner on the caretaker’s claim alleging negligence, and the trial court’s judgment denying the homeowner’s motion for summary judgment was reversed. Duvall v. Green, 262 Ga. App. 669, 586 S.E.2d 369 (2003). 9-11-56 In a patron’s slip and fall action filed against a home seller, the trial court properly found that the seller was entitled to summary judgment as a matter of law because the patron could not show that the seller’s knowledge of the condition which allegedly caused the patron’s fall, specifically, loose gravel on the ground immediately adjacent to unbuffered metal trailer tongues, was superior to the patrons. Whitley v. H & S Homes, LLC, 279 Ga. App. 877, 632 S.E.2d 728 (2006). In a slip and fall action between a daughter and the daughter’s mother, because the evidence showed that the daughter was a mere social guest or licensee in the mother’s home at the time of the daughter’s injury, present only in the home for the daughter’s convenience, and the mother did not act with any intent to harm the daughter, the mother was properly granted summary judgment on the issue of liability for the daughter’s personal injuries resulting from a slip and fall. Behforouz v. Vakil, 281 Ga. App. 603, 636 S.E.2d 674 (2006). Summary judgment for the tortfeasor was affirmed because the injured party failed to show a genuine issue of material fact as to the existence of a slippery floor, the tortfeasor’s knowledge of the condition, or that the tortfeasor’s knowledge of the condition was superior to the knowledge of the injured party, given the injured party’s use of the hallway, and the injured party’s responsibility to see that the tortfeasor did not fall as the injured party was the care giver to the alleged tortfeasor. Sudduth v. Young, 260 Ga. App. 56, 579 S.E.2d 7 (2003). Drunk driving. — Trial court properly granted the hosts’ motion for summary judgment in an injured party’s action under the Georgia Dram Shop Act, O.C.G.A. § 51-1-40(b), because: (1) the intoxicated driver’s brother testified that the driver was not noticeably intoxicated at the party; (2) at the request of the brother, the driver agreed to stay with the hosts after the party because the driver had been drinking; (3) because there was direct evidence that the driver agreed not to drive soon, contrary knowledge could not be imputed to the hosts. Hodges v. Erickson, 264 Ga. App. 516, 591 S.E.2d 360 (2003). 836 When proof of spoliation present following drunk driving accident. — Given proof of spoliation under former O.C.G.A. § 24-2-22 in an action filed against a tavern pursuant to Georgia’s Dram Shop Act, O.C.G.A. § 51-1-40(b), the trial court erred in granting summary judgment to an injured party’s guardian, as the tavern’s manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence might have been captured as to whether one of the tavern’s intoxicated patron’s would soon be driving; hence, a rebuttable presumption arose against the tavern that the evidence destroyed would have been harmful to the tavern, rendering summary judgment inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312, 647 S.E.2d 29 (2007). Summary judgment was properly granted dismissing the motorists’ suit against a restaurant under the Dram Shop Act, O.C.G.A. § 51-1-40(b), for injuries sustained in a collision with one of the restaurant’s patrons because the evidence did not present a question of fact as to whether the restaurant knew that the patron would be driving soon after the patron left the premises. Sugarloaf Cafe, Inc. v. Willbanks, 279 Ga. 255, 612 S.E.2d 279 (2005). Under the voluntary departure rule, if an invitee voluntarily departed from the route designated and maintained by the owner/occupier for the invitee’s safety and convenience, the invitee assumed the risk of those hazards existent in the selected route as the conditions did not constitute a hazard when the traversed property was used for its intended purpose unless the hazard was common to both areas or the owner had notice that the unauthorized route was being regularly used improperly; because an injured person voluntarily departed from a sidewalk and fell on a partially exposed drainage pipe, and there was no evidence that the unauthorized route was being used improperly on a regular basis, summary judgment for a landlord in the injured person’s premises liability case was affirmed. Chamblee v. Grayco, Inc., 266 Ga. App. 154, 596 S.E.2d 683 (2004). Railroad not liable for railroad crossing fatality. — Railroad and the 9-11-56 town were entitled to summary judgment in a survivor’s action claiming damages from the survivor’s decedent’s fatal collision with a train because the survivor failed to show that the allegedly vision-obstructing vegetation was planted or maintained in violation of any statute, code, or local ordinance, and although railroads could be liable under common law negligence principles, the failure to maintain a railroad right of way was addressed by the Georgia Code of Public Transportation, specifically by O.C.G.A. § 32-6-51. Town of Register v.