Williams v. Johnson.

FOURTH DIVISION
DILLARD, C. J.,
RAY and SELF, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

January 24, 2018

In the Court of Appeals of Georgia
A17A1652. WILLIAMS v. JOHNSON.

DILLARD, Chief Judge.

Hope “Elmo” Williams appeals the trial court’s denial of his motion for

summary judgment in Joshua Johnson’s premises-liability case against him, in which

Johnson sought to recover damages for a serious injury he suffered while on

Williams’s property. Specifically, Williams argues that the trial court erred in denying

his motion because (1) Johnson admittedly had superior knowledge of the hazards

associated with the conduct that caused his injury; (2) he breached no legal duty owed

to Johnson; (3) Johnson assumed the risk of the injury by his conduct; (4) Johnson

failed to exercise ordinary care for his own safety; and (5) Johnson failed to establish

the essential element of proximate cause. For the reasons set forth infra, we reverse.
 Viewing the evidence in the light most favorable to Johnson (i.e., the

nonmoving party),1 the record shows that Williams, who is paralyzed from the chest

down, was a close family friend of Johnson. In March 2014, Williams hired Johnson

to help him with various home-repair projects. At the time Williams hired him,

Johnson had approximately 18 years of experience working for roofing companies,

which involved tasks such as being a “laborer, roofing houses, [and] hanging gutters.

. . .” On May 1, 2014, Johnson went to Williams’s home to help him “frame out a

bathroom” in his basement.2 As part of the project, Johnson and Williams planned to

use crow bars to remove a mirror that was attached to three horizontal wooden boards

with liquid nails (which are a type of glue). The first board was removed without

incident, and Johnson carried it outside and placed it in a debris pile in the yard.

Johnson returned to the basement, and when he and Williams attempted to remove the

second board, which was “flush to the glass,” the mirror “started breaking and . . .

1
See, e.g., Vratsinas Const. Co. v. Chitwood, 314 Ga. App. 357, 357-58 (723
SE2d 740) (2012).
2
Johnson averred that Williams regularly paid him to help “with odd jobs
around his home,” and that he expected Williams to pay him for the work he did on
the date in question.

2
shattering, like spider webbing.”3 And while the board did ultimately detach from

most of the mirror, there was still an 8 to 12 inch shard of glass glued to it.

According to Johnson, once he took the second board outside to discard it, he

noticed that the piece of glass was “on the back of the board and it started getting

skinnier [as it] came up, . . . and came to . . . a point” and was “[v]ery sharp.” Johnson

carried the board vertically with one hand on each side over to a large trash can near

the debris pile. Although Johnson had placed the first board in the designated debris

pile, he decided to dispose of the second board in the trash can because, if he put it

in the debris pile, the glass could potentially break in the yard when subsequent

boards were discarded there. But when Johnson placed the board into the trash,

intending “to knock the glass off” with “a tool or a hammer[,]” the glass immediately

cut both main arteries in his right hand, slicing “all of [his] ligaments . . . .”

Although Johnson’s deposition testimony is consistent regarding when his

injury occurred, it is very unclear and contradictory as to exactly how it occurred and

what exactly caused the shard of glass to come into contact with his hand. When first

asked whether placing the board in the trash caused it to “bounce back up towards

3
Johnson first testified that the glass shattered, but later testified that it did not
shatter. He clarified that the mirror “look[ed] like a spider web” with little light cracks
and that some “[s]mall little pieces” of glass fell to the floor.

3
[him][,]” Johnson said that he did not know because it “happened so fast.” Johnson

also testified that he did not know if any of the glass broke off of the board when the

injury occurred or if he ever “fully let go of the board before [he] was injured.” But

Johnson could not rule out the possibility that he may have let go of the board, which

caused it to bounce in a way that the glass shard came back up and sliced his hand.

Later, Johnson testified definitively that the board “never bounced[,]” but also

said, “I had the board and I picked it up and as I’m placing it in there [and] then I

don’t know what happened next.”4 And shortly thereafter, Johnson claimed that he did

know whether the board bounced because “you would have heard it[;]” however, he

did not say whether he heard anything. Similarly, despite his earlier claim that he

lacked knowledge as to whether the glass shard detached from the board, Johnson

testified that the large shard of glass did not break off of the board and that he did not

even know if it was the glass “that went through [his] hand.” Nevertheless, Johnson

conceded that he did not know what else could have caused such a serious cut other

than the sharp piece of glass. Regardless, when his hand was cut, Johnson’s hand bled

4
(Emphasis supplied).

4
so badly that the blood quickly soaked through a new roll of paper towels and at least

two cloth towels.”5

Immediately after the injury, Williams’s wife called 911, and paramedics

responded to transport Johnson to the hospital for treatment. The laceration to

Johnson’s hand was so severe that he had two emergency surgeries, spent nine days

in the hospital, and attended nine weeks of physical-therapy sessions. Since the

incident, Johnson has suffered constant pain in his forearm, developed blood clots in

5
When confronted with Williams’s motion for summary judgment, Johnson
submitted a sworn affidavit that contained many statements that conflicted with his
earlier deposition testimony, such as that Williams instructed him to dispose of the
board in the trash can rather than in the debris pile and to “knock off the glass.” While
Johnson testified at his deposition that Williams instructed him to place the board in
the trash can, he also testified that “the trash can was never discussed.” Johnson
further testified that Williams did and then later that he did not instruct Johnson to
place the board in the debris pile. And in yet another conflicting statement, Johnson
agreed that “the only thing [Williams] specifically told [him] was not to get glass on
his driveway so his [car] wouldn’t get a flat tire.” As a result of Johnson’s confusing
and contradictory statements, as well as his lack of knowledge as to what exactly
occurred, all that is clear is that Johnson carried the second board with the shard of
glass attached outside, he placed it in a large empty trash can, and his hand was
somehow severely injured immediately when he did so. Because we view the
evidence in the light most favorable to the nonmovant, the factual background set
forth is gleaned almost exclusively from Johnson’s own testimony. Nevertheless, as
to the numerous vague and conflicting sworn statements made by Johnson below, we
note that “self-contradictory testimony is construed against a party-witness, absent
a reasonable explanation for the contradiction.” Shiver v. Norfolk-S. Ry. Co., 269 Ga.
168, 169 (496 SE2d 903) (1998) (emphasis omitted).

5
his hand, can no longer lift heavy items, and needs assistance from others with

ordinary daily tasks such as tying his shoes and buttoning his pants. Additionally,

Johnson has lost feeling in three fingers on his right hand, and he has to do everything

left handed that he did right handed prior to cutting his hand. Johnson has also been

unemployed since the incident, as he does not know what kind of work he will be able

to do with only one functioning hand.

On February 24, 2016, Johnson filed a complaint against Williams, asserting

a premises-liability claim and seeking compensatory damages for his injury, medical

expenses, and attorney fees. Williams responded, denying the material allegations in

the complaint and asserting several affirmative defenses. Then, following discovery,

Williams filed a motion for summary judgment, arguing, inter alia, that Johnson’s

premises-liability claim failed because his knowledge of the risks and dangers

associated with carrying and disposing of the large (and very sharp) piece of glass

was superior to that of Williams. After the parties filed responsive briefs, the trial

court held a hearing at which only legal arguments were made, and ultimately, the

court denied Williams’s summary-judgment motion. Thereafter, the trial court granted

Williams’s request for a certificate of immediate review. This Court then granted

Williams’s request for an interlocutory appeal, and this appeal follows.

6
 Summary judgment is proper when “there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law.”6 Additionally, a de novo

standard of review applies “to an appeal from a grant or denial of summary judgment,

and we view the evidence, and all reasonable conclusions and inferences drawn from

it, in the light most favorable to the nonmovant.”7 With these guiding principles in

mind, we turn now to Williams’s specific claims of error.

1. Williams argues that the trial court erred by denying his motion for summary

judgment because Johnson admittedly had superior knowledge of the hazards

associated with his chosen method of carrying and disposing of a board with a sharp

piece of glass attached. We agree that Johnson’s own testimony establishes that he

had at least equal, if not superior, knowledge as Williams did of the hazard that

caused his injury, which precludes recovery on his premises-liability claim.

In Georgia, in order to prevail on a premises-liability claim, a plaintiff must

prove that “(1) the owner or proprietor had actual or constructive knowledge of the

hazard and (2) the plaintiff lacked knowledge of the hazard despite exercising

6
Vratsinas Const. Co., 314 Ga. App. at 357 (punctuation omitted).
7
Id. at 357-58 (punctuation omitted).

7
ordinary care.”8 Indeed, as a general rule, owners or occupiers of land are “not

insurers of the safety of invitees.”9 Thus, in a premises-liability case (such as this

one), the mere fact that Johnson was injured, without more, “does not give rise to

liability on the part of [Williams].”10 Instead, the true basis of a property owner’s

liability for an injury to its invitee is the owner’s “superior knowledge of a condition

that may expose the invitees to an unreasonable risk of harm.”11 Moreover,

8
Ward v. Autry Petroleum Co., 281 Ga. App. 877, 877 (637 SE2d 483) (2006);
accord Robinson v. Kroger Co., 268 Ga. 735, 748-49 (2) (493 SE2d 403) (1997).
9
Orff v. Stonewood Rest. Grp., LLC, 285 Ga. App. 488, 489 (646 SE2d 702)
(2007); accord Bartlett v. McDonough Bedding Co., 313 Ga. App. 657, 658 (722
SE2d 380) (2012) (punctuation omitted). Although Johnson and Williams were long-
time friends, the parties do not dispute that, at the time of the injury underlying this
appeal, Johnson was an invitee, rather than a licensee. See Jarrell v. JDC & Assocs.,
LLC, 296 Ga. App. 523, 524-25 (675 SE2d 278) (2009) (“An invitee is a person who,
by express or implied invitation, has been induced or led to come upon premises for
any lawful purpose[,] while a licensee is one who is permitted, either expressly or
impliedly, to go on the premises of another, but merely for his own interest,
convenience, or gratification. Accordingly, the duty owed to an invitee is greater than
that owed to a licensee. An owner owes a duty to an invitee to exercise ordinary care
to keep the premises and approaches safe[,] while his duty to a licensee is not to
injure the licensee wantonly or wilfully and arises after the owner becomes aware of
or should anticipate the presence of the licensee near the peril.” (punctuation and
footnotes omitted)).
10
Orff, 285 Ga. App. at 489; accord Bartlett, 313 Ga. App. at 658.
11
Orff, 285 Ga. App. at 489 (punctuation omitted); accord Ward, 281 Ga. App.
at 877.

8
 it is the plaintiff’s knowledge of the specific hazard which caused the
[injury] that determines whether the plaintiff can prevail on a premises[-
]liability claim, not merely the plaintiff’s knowledge of generally
prevailing hazardous conditions or of other hazardous conditions in the
area which plaintiff observes and avoids.12

Put another way, as to premises-liability claims, “[r]ecovery is allowed only when the

[owner] had knowledge and the invitee did not.”13 Lastly, we are mindful that in a

premises-liability case, “issues of the defendant’s negligence, the plaintiff’s

negligence, and the plaintiff’s lack of ordinary care for his own safety are generally

not susceptible of summary adjudication.”14 But when, as here, “the evidence is plain,

palpable, and undisputable . . . the trial court [can] conclude that a party is entitled to

judgment as a matter of law.”15

In this case, the undisputed evidence shows that Johnson, who had 18 years of

experience in the construction industry (primarily as a roofer), testified to the

12
Orff, 285 Ga. App. at 490 (punctuation omitted); accord Ward, 281 Ga. App.
at 879 (2) (a).
13
Orff, 285 Ga. App. at 489 (punctuation omitted); accord Ward, 281 Ga. App.
at 877.
14
Ward, 281 Ga. App. at 877; accord Robinson, 268 Ga. at 748 (2).
15
Ward, 281 Ga. App. at 877; accord Kennestone Hosp., Inc. v. Harris, 285
Ga. App. 393, 395 (646 SE2d 490) (2007).

9
following: (1) when he carried the second wooden board outside, he knew that it had

“a big ole sharp shard of glass on it[;]” (2) he would not have intentionally grabbed

the glass because it would cut him, and he is “not an idiot[;]” (3) he knew that if the

sharp glass came into contact with him, it was likely to cut him; (4) he knew that he

had to handle the board properly because if the glass cut him, it could cause a “serious

injury[;]” (5) he was aware of the specific risk that if he disposed of the board in the

trash can in such a way that it bounced back up, the shard of glass could cut him; (6)

he was wearing safety gloves at the time of his injury, presumably to protect his hands

from the hazards of construction such as being cut by glass, and (7) it was Johnson’s

own decision to dispose of the wooden board in the manner that he did, as the only

instruction Williams gave him was not to get any glass on the driveway.16

Notwithstanding the foregoing testimony, which clearly demonstrates that

Johnson understood the risks of handling sharp glass, he also testified that he thought

16
As previously noted, although Johnson’s deposition and affidavit testimony
conflicted with or contradicted some of the testimony we have just set forth, we
reiterate that “self-contradictory testimony is construed against a party-witness,
absent a reasonable explanation for the contradiction.” Shiver, 269 Ga. at 169
(emphasis omitted); see Walker v. Brannan, 243 Ga. App. 235, 237 (533 SE2d 129)
(2000) (“It is well established that on summary judgment a party’s self-contradictory
testimony, if unexplained, must be construed against the party-witness, even when the
party-witness is the respondent rather than the movant.”). And here, Johnson has not
provided us with a reasonable explanation for his self-contradictory testimony.

10
that there was “some danger” that existed on the day in question that Williams should

have warned him about. When asked to be more specific, Johnson testified that

Williams should have warned him about “[t]he way [they] were doing the glass.” And

when asked to further explain the precise warning that should have been given,

Johnson testified, “I mean basically once we start[ed] pulling the liquid nail[s] off it’s

going to start busting and shattering and you know, spider webbing.” But Johnson

agreed that when the glass initially “busted, shattered[,] and spider webbed in the

basement,” he was not “hurt even in the slightest way[,]” and he fails to explain how

a warning about the glass shattering could have prevented the injury he later suffered

outside. Johnson further testified that Williams should have instructed him to “bust”

the glass in the garage, instead of carrying it outside, where he would have to “go

through drop cords, go through sawhorses, [and] boxes and make it to the trash can.”

But again, Johnson admitted that he was not injured while carrying the board through

any obstacles on his way to the trash can. Thus, even assuming that Johnson—a 35-

year-old experienced roof mechanic—was unaware that glass might shatter and cut

him when the boards were removed or that he could be cut by the glass while carrying

the board to the trash can, neither of those scenarios occurred.

11
 Nevertheless, Johnson argues that Williams had “superior knowledge of the

mirror-like materials[’] inherent danger because he personally installed it himself over

twenty . . . years ago” and kept it affixed to his wall until 2014. But again, Johnson

testified that he understood the dangers of handling sharp glass (i.e., that it could cut

him), and he fails to explain why Williams’s knowledge of those same exact dangers

was superior merely because he installed the mirror years before it shattered. Johnson

further asserts that Williams “arguably led [him] into a dangerous trap because [he]

could never have discovered numerous things surrounding same, . . . [such as] that

the adhesive affixing the board to the mirror-like material was stronger than normal”

or “whether the mirror-like material was resistant to shattering.” But Johnson

identifies no evidence suggesting that the strength of the adhesive or the mirror’s

level of resistance to shattering had anything to do with how he was ultimately

injured. Indeed, Johnson testified several times that he could not remember the details

of what happened. And although Johnson testified that he saw and was aware of the

sharp glass attached to the board he was carrying, he now claims that Williams should

have warned him of some unspecified “patent or latent” defects related to the mirror.

But even Johnson acknowledges that he did not know of anything else that could

have cut him other than the sharp piece of glass, which was visible to both Johnson

12
and Williams, and there is no evidence that any concealed defect in the construction

materials caused his injury.17

Finally, relying solely on two cases, Johnson contends that, for summary

judgment to be granted in a premises-liability case, this Court’s precedent “requires

the evidence to show that the [plaintiff] had numerous occasions and ample time to

inspect and recognize the dangerous condition.”18 That is simply not true. Indeed, just

17
Johnson makes a similar argument that his prior general experience in the
construction industry was insufficient to show that he had knowledge of the specific
danger posed by the mirror-like material in Williams’s home. But this assertion is
belied by his own testimony that he knew that he had to handle the second board
carefully because the piece of glass attached to it was very sharp and could cause a
serious injury if he came into contact with it. Indeed, throughout his brief, most of
Johnson’s arguments are premised on his assertion that the general construction
materials in Williams’s basement or the way in which the mirror was installed created
a risk of injury of which he was unaware. This premise ignores the undisputed
evidence that the only danger or hazard associated with Johnson’s injury was the
sharp shard of glass that cut him outside after the mirror shattered inside and that no
other construction materials were involved in his injury.
18
See Landings Ass’n, Inc. v. Williams, 291 Ga. 397, 399 (728 SE2d 577)
(2012) (holding that a defendant landowner was entitled to summary judgment in a
premises-liability case when the invitee, who was attacked and killed by an alligator,
“either knowingly assumed the risks of walking in areas inhabited by wild alligators
or failed to exercise ordinary care by doing so”); Forest Cove Apartments, LLC v.
Wilson, 333 Ga. App. 731, 736 (776 SE2d 664) (2015) (holding that the owner of an
apartment building was entitled to summary judgment on a premises-liability claim
asserted by an independent contractor who was hired to make repairs to the property
and injured herself when she fell through an upstairs bathroom floor that she knew
had significant water damage when, inter alia, “[she] was responsible for inspecting

13
because we may have held that summary judgment was appropriate under such

circumstances does not mean that those exact circumstances are required to authorize

the grant of summary judgment in every premises-liability case. Furthermore, Johnson

fails to explain why he needed additional time or numerous opportunities to fully

appreciate the danger posed by sharp glass.

Simply put, although the sharp piece of broken mirror was made of glass, and

perhaps hazardous to that extent, Johnson knew that he was handling a glass object

and that people can be cut by glass, and Williams did not possess superior knowledge

of that danger.19 In fact, Johnson likely had superior knowledge to that of Williams

regarding the danger posed by discarding the glass in the trash can because Williams

was not present when Johnson was doing so and only Johnson knew his chosen

method for disposing of the board prior to his injury. But regardless, Williams is

entitled to summary judgment as to Johnson’s premises-liability claim because, at the

the work area and determining for herself whether it was safe to remain standing on
the [floor]”).
19
See Aubain-Gray v. Hobby Lobby Stores, Inc., 323 Ga. App. 672, 672, 674
(1) (747 SE2d 684) (2013).

14
very least, Johnson and Williams had equal knowledge of the dangers posed by sharp

glass.20

2. Given our holding in Division 1 that Williams is entitled to summary

judgment because Johnson had equal, if not superior, knowledge of the hazard that

caused his injury, we need not address Williams’s remaining, alternative arguments

as to why he is entitled to summary judgment.

20
See id. (holding that a store owner was entitled to summary judgment on a
customer’s premises-liability claim when the customer picked up a candle holder and
the glass globe that was resting on top of it fell, shattered, and cut her right wrist
because, inter alia, “[the customer] knew that she was handling a glass object and that
people can be cut by glass, and [the store owner] did not possess superior knowledge
of that danger”); Perkins v. Kranz, 316 Ga. App. 171, 173 (2) (728 SE2d 804) (2012)
(holding that a pedestrian, whose ear was punctured by a tree branch overhanging a
sidewalk, could not recover on a premises-liability claim when “the tree and its
overhanging branches were visible to [the pedestrian] and were in no way a pitfall,
mantrap, or hidden peril”); Briddle v. Cornerstone Lodge of Am., 288 Ga. App. 353,
355 (654 SE2d 188) (2007) (holding that the plaintiff, who was injured when she
slipped and fell on water from an overflowing toilet, had equal, if not superior,
knowledge than the defendant of the hazard because “any person with ordinary,
common sense would recognize standing water on a floor as a hazard that might cause
one to slip” (punctuation omitted)); see also Williams, 291 Ga. at 399 (“[T]he true
ground of [premises] liability is the proprietor’s superior knowledge of the perilous
instrumentality and the danger therefrom to persons going upon the property. It is
when the perilous instrumentality is known to the owner or occupant and not known
to the person injured that a recovery is permitted.” (punctuation omitted) (emphasis
supplied)).

15
 For all these reasons, we reverse the trial court’s denial of Williams’s motion

for summary judgment.

Judgment reversed. Ray and Self, JJ., concur.

16