FIRST DIVISION
BARNES, P. J.,
GOBEIL and MARKLE, 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.
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June 16, 2021
In the Court of Appeals of Georgia
A21A0270. BENNETT v. McPHATTER.
MARKLE, Judge.
After Angela McPhatter was injured when she fell through a broken board on
the deck of the home rented by Brenda Daughtry and owned by James A. Bennett, she
filed a premises liability and negligence suit against Daughtry and Bennett. The trial
court denied Bennett’s motion for summary judgment. Bennett filed this interlocutory
appeal, contending that, as an out-of-possession landlord, he was not liable to
McPhatter for her injuries because (1) he had no knowledge of an alleged defective
condition of the deck, and thus no duty to inspect and repair it; and (2) he cannot be
held liable for defective construction of the deck. Because we conclude that there
were no genuine issues of material fact with respect to Bennett’s liability in this
regard, the trial court erred in denying summary judgment. We therefore reverse the
trial court’s order.
In order to prevail on a motion for summary judgment under OCGA
§ 9-11-56,[Bennett], as the moving party, must show that there exists no
genuine issue of material fact, and that the undisputed facts, viewed in
the light most favorable to the nonmoving party, demand judgment as
a matter of law. Moreover, on appeal from the denial or grant of
summary judgment the appellate court is to conduct a de novo review of
the evidence to determine whether there exists a genuine issue of
material fact, and whether the undisputed facts, viewed in the light most
favorable to the nonmoving party, warrant judgment as a matter of law.
(Citation omitted.) In/Ex Systems, Inc. v. Masud, 352 Ga. App. 722, 723 (2) (835
SE2d 799) (2019).
So viewed, the record shows that Bennett owned a home in Savannah, Georgia,
which he subsequently leased to Daughtry. In March 2014, McPhatter was
Daughtry’s guest at the home when she walked out onto the back deck of the property
and fell through a board, sustaining injuries. Thereafter, McPhatter filed a premises
liability suit against Daughtry and Bennett, raising various allegations of negligence,
including that the board that broke was inadequately supported.1
1
McPhatter originally filed suit in 2016, which she voluntarily dismissed and
filed a timely renewal action in 2018.
2
Bennett filed a motion for summary judgment, asserting that he was an out-of-
possession landlord and that (1) he was not liable to McPhatter for her injuries
because he had no knowledge of any alleged defective condition with the deck and
he had no duty to repair, and (2) he was not liable for any alleged defective
construction of the deck.
In his deposition, Bennett stated he owned the home for 17 years and used it
as a rental property. The deck was part of the home when Bennett purchased it, and
he inspected the home when he first bought it, and conducted inspections every time
there was a new tenant. Bennett stated that he was unaware of any defective condition
with the deck prior to McPhatter’s fall; he had never had a previous complaint
concerning the deck; and he did not notice a problem with it when he conducted a
walk-through with Daughtry prior to renting the property to her.2
In an affidavit, Daughtry admitted that, some months after moving into the
home, she became aware of the weakened condition of the board on the deck, and she
warned McPhatter about it prior to her fall, but she did not advise Bennett of the
2
Bennett had a lease agreement with Daughtry, but it has not been produced
for the record. However, Bennett testified that Daughtry had lived in the home several
months prior to McPhatter’s fall.
3
deck’s condition until after the accident. McPhatter averred that she was unaware of
any defects or dangerous conditions involving the deck.
Following a hearing , the trial court denied Bennett’s summary judgment
motion, finding that there were genuine issues of material fact with regard to
(1) whether McPhatter’s damages resulted from Daughtry’s negligence or illegal use
of the premises; (2) whether under both OCGA §§ 44-7-13 and 44-7-14 Bennett
failed to keep the premises in repair; and (3) whether Bennett should have discovered
the unsafe condition of the deck during his walk-through with Daughtry before
leasing the home to her. The trial court then certified its order for immediate review,
and, after we granted the interlocutory application, this appeal followed.
On appeal, Bennett argues that the trial court erred in denying his motion for
summary judgment because, under OCGA § 44-7-14, he was an out-of-possession
landlord at the time of McPhatter’s fall, and thus he is not liable for her injuries
because he did not construct the deck, had no knowledge of the deck’s defective
condition, and had no duty to inspect or repair it.3 We agree.
3
Although McPhatter argues liability under both OCGA §§ 51-3-1 and 44-7-
14, the law is clear that Bennett’s liability is governed exclusively by OCGA § 44-7-
14. See Cham v. ECI Mgmt. Corp. ,__ Ga. __ (2) (a) (856 SE2d 267, 272-273 (2) (a))
(2021); see also Colquitt v. Rowland, 265 Ga. 905, 906 (1) (463 SE2d 491) (1995).
Here, it is undisputed that Bennett owned the property, but did not reside at the home,
4
(a) Knowledge of defect.
Because Bennett was an out-of-possession landlord under OCGA § 44-7-14 at
the time of McPhatter’s fall and injuries, he is liable in tort only for McPhatter’s
damages that result either from his failure to repair the deck or from its faulty
construction. Martin v. Hansen, 326 Ga. App. 91, 92 (1) (755 SE2d 892) (2014).
Bennett’s liability is predicated on his knowledge of the defect. See Martin, 326 Ga.
App. at 92 (1); see also Aldredge v. Byrd, 341 Ga. App. 300, 303-304 (1) (799 SE2d
263) (2017); Haynes v. Kingstown Properties, Inc., 260 Ga. App. 102, 103 (578 SE2d
898) (2003). However, Bennett had no absolute duty to inspect the deck prior to
leasing the house, particularly where there was no reason to believe an inspection was
and that, as Daughtry averred, Bennett had rented the home to her at the time of
McPhatter’s fall. McPhatter suggests that Bennett’s failure to produce the lease
creates a question with regard to whether he ceded possession of the premises such
that he can be considered an out-of-possession landlord. However, the absence of a
written lease agreement does not contradict other evidence showing that Bennett was
not in possession of the home at the time of McPhatter’s fall. See Mannion &
Mannion, Inc. v. Mendez, 355 Ga. App. 28, 32 (842 SE2d 334) (2020) (evidence
which is mere conjecture and speculation cannot defeat summary judgment in the face
of uncontroverted evidence showing otherwise). Thus, we conclude that, at all times
relevant to this matter, Bennett was an out-of-possession landlord and thus any tort
liability arises under OCGA § 44-7-14. See Cham, __ Ga. at (2) (a) (856 SE2d at 272
(2) (a)); see also Colquitt, 265 Ga. at 906 (1).
5
necessary. See Lonard v. Cooper & Sugrue Properties, Inc., 214 Ga. App. 862, 864
(449 SE2d 348) (1994).
Bennett testified that he was unaware of any problem or defect with the deck,
he had never had a previous complaint concerning the deck, and he did not notice a
problem with the deck when he conducted a walk-through with Daughtry prior to
renting the property to her. Daughtry admitted she did not advise Bennett of the
weakened board. As such, Bennett had neither actual or constructive knowledge of
the defect.
McPhatter has produced no other evidence that Bennett either knew or should
have known that the deck needed repair. To the extent that McPhatter contends that
Bennett knew or should have known of the defect because he lived only a few blocks
away and would stop by monthly to collect the rent check, such conduct does not
raise a question of fact as to Bennett’s knowledge of the deck’s condition. Also,
Bennett had no right to enter the property without Daughtry’s permission to discover
the deck’s condition. See Colquitt, 265 Ga. at 906 (1). Moreover, in the absence of
any evidence Bennett had either actual or constructive knowledge of the dangerous
condition, ordinary diligence did not require Bennett to inspect the deck. Lonard, 214
6
Ga. App. At 865. Accordingly, Bennett is entitled to summary judgment on this issue.
Aldredge, 341 Ga. App. at 304 (1).
(b) Defective construction.
Turning to Bennett’s liability for faulty construction,
[g]enerally, the liability of a landlord for defective construction exists
only in cases where the structure is built by him in person or under his
supervision or direction. . . With regard to defective construction by a
predecessor-in-title, our court has held that an out-of-possession
landlord may be held liable only for those structural defects that would
be discovered during a pre-purchase building inspection. Such
out-of-possession landlord is not liable for all defects because ordinary
care in the fulfillment of the landlord’s duty to keep the premises in
repair does not embrace an affirmative duty to make such an inspection
of the premises as will disclose the existence of any and all latent defects
which may actually exist therein. This would be but to place upon the
landlord an absolute duty to rent premises free from latent defects. It
follows that a proper application of the landlord’s duty to inspect
premises does not, under any theory, result in making the landlord liable
for a latent defect in the premises, simply because it existed at the time
of the lease.
(Citations and punctuation omitted.) Cowart v. Schevitz, 335 Ga. App. 715, 717-718
(782 SE2d 816) (2016).
7
It is undisputed that Bennett did not build, or direct another to build, the deck,
and thus he cannot be held liable for faulty construction unless the defect would have
been discovered during an inspection. See Cowart, 335 Ga. App. at 717-718.
McPhatter has produced no evidence showing that Bennett had any knowledge of an
alleged defective condition of the deck, or that one would have been discovered
during the pre-purchase inspection or even during the walk-throughs with tenants.4
Accordingly, Bennett cannot be held liable for defective construction. Cowart, 335
Ga. App. at 717-718.
While issues of a landlord’s negligence are generally not susceptible to
summary adjudication, “when, as here, the evidence is plain, palpable, and
4
McPhatter’s expert opined that when a landlord observes rot on the deck or
a connection failure of any sort, he should repair or replace it. However, the record
is devoid of any evidence that Bennett knew of any such rot or defect with the deck,
or that any such defective condition existed at the time he purchased the home or
when he rented it to Daughtry. Also, Bennett points to excerpts from McPhatter’s
expert’s deposition where he allegedly indicated that he could not testify as to the age
or condition of the board in question at the time of McPhatter’s fall, nor could he
testify to how old the deck was. However, these excerpts from the expert’s deposition
do not appear to be in the record before this Court. Likewise, McPhatter argues that
Bennett violated the International Property Maintenance Code (IPMC) by failing to
maintain the deck in good condition. However, no ordinance is in evidence here. See
Whitfield v. City of Atlanta, 296 Ga. 641, 642 (769 SE2d 76) (2015) (“City and
county ordinances must be alleged and proven in order to be considered by the
superior and appellate courts of this State.”)
8
undisputable the trial court can and should conclude that a party is entitled to
judgment as a matter of law.” (Citation and punctuation omitted.) River Place at Port
Royal Condo. Assn., Inc. v. Sapp, __ Ga. App. __ (856 SE2d 28, 32) (2021).
For these reasons, the trial court erred in denying Bennett’s motion for
summary judgment, and we reverse.
Judgment reversed. Barnes, P. J., and Gobeil, J., concur.
9