FIFTH DIVISION
MCFADDEN, P. J.,
PINSON, J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
March 7, 2022
In the Court of Appeals of Georgia
A21A1382. WCE HOLDINGS B, LLC v. LEWIS.
A21A1385. WCE HOLDINGS B, LLC v. WHITEHEAD, et al.
PINSON, Judge.
A deck attached to a rental home collapsed during a party. After the collapse,
a concealed wooden beam where the deck had been attached to the house was
exposed, and it appeared to have been damaged by water or termites. Six of the
people injured in the collapse sued the landlord. But under OCGA § 44-7-14, a
landlord not in possession of a rental property is not responsible for damages arising
from defective construction or failure to repair if the landlord neither knew nor
reasonably should have known about the defect in question. And here, the plaintiffs
failed to introduce evidence from which a jury could conclude that the landlord knew
or should have known about the damaged beam, which was undisputedly a but-for
cause of the collapse. They showed that the landlord inspected and made some
aesthetic repairs to the deck before renting the property, but there is no evidence that
those actions reasonably should have led to discovery that the hidden beam was
rotten, or that the beam was likely damaged at the time. And they showed that the
posts supporting the deck were not sunk into concrete footings, but they presented no
evidence suggesting that the posts’ construction should have prompted the landlord
to cut into the house to inspect the beam. Without evidence from which a jury could
conclude that WCE knew or reasonably should have known about the hidden damage,
we must reverse the trial court’s denial of summary judgment on this issue.
Background
WCE Holdings B, LLC bought the home at issue in March 2015. The home
was not inspected by a certified home inspector prior to purchase. However, William
Ellis, the owner of WCE, brought Jamal Ingram, WCE’s construction foreman, to
assist him with inspecting the house and back deck prior to closing. The inspection
did not reveal any issues with the deck supports. Ellis averred that at no time prior to
the collapse did he or WCE have any knowledge of a structural problem with the
deck.
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Ellis testified that, prior to renting the home, WCE replaced some non-
structural components of the deck, including “some” of the deck floor boards and
railings, “[f]or aesthetic reasons only.” Margarito Fernandez made these repairs ot the
deck. Fernandez testified that he replaced the deck’s railing and stairs, but did not
replace the floor or the joists. He did not see the wooden beam attaching the deck to
the house because it was concealed by decking. He observed that the metal posts
supporting the deck sat on top of concrete foundations (instead of being sunken in the
concrete) and, as a result, it was possible that the deck would move if several people
were on it. However, Fernandez testified that the deck appeared to be stable to him
when he worked on it in March 2015.
In May 2015, WCE leased the property to LaMarr Burns. The lease between
WCE and Burns places the responsibility on the tenant to inform the landlord of any
dangerous conditions or need for maintenance.
On June 25, 2017, Burns invited friends to his house for a social gathering. The
deck suddenly collapsed under the weight of the guests, injuring some of the guests.
Burns had not communicated any concern about the deck before it collapsed.
After the deck collapsed, a 16-foot wooden beam that connected the deck to the
house was exposed, revealing damage by termites or water intrusion. Jamal Ingram,
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WCE’s foreman, explained that the damaged beam attaching the deck was not visible
until the deck was removed because it was concealed by deck framing and was up
against the house. Fernandez, WCE’s repairman, opined that the deck collapsed
because (1) there were a lot of people moving on the deck, (2) the interior beam
attaching it to the house was damaged, (3) there was a lack of a support post next to
the house and (4) the posts moved on concrete.
Michael Lewis, Johnny Whitehead, John Riggs, Trevin Strong, Dionte Starks
and Anthony Dorsey sued WCE for injuries they sustained as a result of the deck’s
collapse. WCE then moved for summary judgment, which the trial court denied. The
trial court treated WCE as an out-of-possession landlord subject to OCGA § 44-7-14,
which limits the landlord’s liability to damages arising from “defective construction”
or the “failure to keep the premises in repair.” The trial court acknowledged that all
the witnesses agreed that the damaged wood “where the deck was secured to the
house was not visible.” But the court noted that a jury could credit testimony that the
deck’s support posts were “sitting on top of the concrete rather than sunk into the
concrete,” and it reasoned that “the entire concern about the posts is that they could
cause the deck to be unstable under certain circumstances.” Combined with the
court’s understanding that “water and termite damage are common occurrences for
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any structure,” the court determined that “a jury could conclude that the visibly
defective posts should have prompted WCE to take further remedial action.” WCE
sought an interlocutory appeal, which we granted.
Discussion
Under OCGA § 44-7-14, a landlord not in possession of a rental property (like
WCE here) is responsible only for damages arising from either “defective
construction” or “the failure to keep the premises in repair.” OCGA § 44-7-14; see
Gainey v. Smacky’s Investments, Inc., 287 Ga. App. 529, 530 (2) (652 SE2d 167)
(2007). Accord Martin v. Johnson-Lemon, 271 Ga. 120, 122 (1) (516 SE2d 66)
(1999).
Here, WCE’s liability under either of these theories depends on whether it
knew or should have known about the relevant defect. An out-of-possession landlord
may be liable for failure to repair under OCGA § 44-7-14 only if the landlord has
actual or constructive knowledge of the dangerous condition. Aldredge v. Byrd, 341
Ga. App. 300, 304 (1) (799 SE2d 263) (2017); see also Gainey, 287 Ga. App. at 530
(2) (a) (“Liability for failure to repair arises only in instances where there is a duty to
repair and notice has been given of the defect.”) (punctuation and footnote omitted).
As for defective construction, a landlord who wasn’t involved with building the
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property may be held liable only if the landlord “knew or by the exercise of
reasonable diligence could have known,” before the tenancy was created, of a
“structural defect” of the kind that “would be discovered during a pre-purchase
building inspection.” Gainey, 287 Ga. App. at 531 (2) (b) (punctuation and footnote
omitted). Accord Rainey v. 1600 Peachtree, LLC, 255 Ga. App. 299, 299 (565 SE2d
517).
The focus of this knowledge requirement here is the damaged beam that was
the attachment point for the deck. Viewed in the light most favorable to the plaintiffs,
the evidence showed that the deck’s collapse resulted from some combination of (1)
having a significant number of people on the deck, (2) the deck’s posts not being
sunk into the concrete, (3) a lack of deck supports up against the house, and (4) the
damaged beam, which allowed the deck to pull away from the house. But that
evidence also indicates that the deck would not have collapsed but for the damaged
beam. This means that the damaged beam is a material defect that WCE had to have
had actual or constructive notice of, before the deck collapsed, to be held liable as an
out-of-possession landlord under OCGA § 44-7-14.
That, then, is our focus: to determine whether there is evidence from which a
jury could conclude that WCE (a) knew or (b) should have known about the damaged
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beam—and thus the dangerous condition the deck was in—before the deck collapsed.
We undertake this review de novo, viewing the evidence and inferences drawn from
it in the light most favorable to the plaintiffs. Rainey, 255 Ga. App. at 299.
(a) It is quite clear from the record that WCE did not have actual knowledge
about the damaged beam. As the trial court noted, all of the witnesses agreed that the
beam was not visible before the deck fell. Further, when inspecting the deck before
the property was leased, neither the owner nor construction foreman of WCE saw any
structural issues or problems. And Fernandez testified that when he made the
aesthetic repairs to the deck in 2015, the deck appeared stable, and he did not see the
beam because it was concealed behind the deck framing. Finally, the tenant never
reported any issues with the deck to WCE.
The plaintiffs point to conflicting evidence about whether some of the deck’s
floor boards were replaced: although Fernandez, who made the repairs, testified that
he replaced only railings and stairs, Ellis and Ingram thought some of the “deck
flooring” was replaced. But this minor factual dispute is not material to the question
whether anyone from WCE knew about the damaged beam. Even assuming
Fernandez replaced some of the floor boards, there is no evidence that pulling up the
floor boards could have exposed the beam in question. Fernandez agreed that, had he
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replaced the floor, he could have seen “what was behind it,” but the beam in question
was not located “behind” (or rather, underneath) the floor boards—it was located on
the side of the deck, perpendicular to the floor and hidden behind the deck framing.
No one suggested that the framing was removed or replaced, or that any of the
aesthetic repairs made to the deck would have otherwise exposed the beam. That the
beam remained hidden during these repairs, whatever their scope, is confirmed by
Fernandez’s unrebutted testimony that he was never able to see the beam in question
before the deck collapsed.
(b) Nor is there evidence from which a jury could conclude that WCE
reasonably should have known about the damaged beam and the resulting hazard
before the deck collapsed. See Gainey, 287 Ga. App. at 531 (2) (b) (landlord may
become liable for defective construction by a predecessor if the landlord “knew or by
the exercise of reasonable diligence could have known of the improper construction
before [the] tenancy was created”); Aldredge, 341 Ga. App. at 304 (1) (out-of-
possession landlord may be liable for failure to repair if the landlord has actual or
constructive knowledge of the dangerous condition).The trial court reasoned that a
jury could conclude that the support posts “sitting on top of the concrete” were
“visibly defective posts” which, combined with water and termite damage being
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“common conditions,” should have “prompted” WCE to “take further remedial
action.”
But the evidence does not support this line of reasoning. First, the plaintiffs
point to no evidence that the posts were “defective” merely because they were seated
on top of concrete rather than sunk into it. And in fact, Fernandez testified that if he
had discovered an issue with the deck’s stability or structural soundness when
repairing it, he would have alerted WCE so that it could have been repaired. He did
not alert WCE when he saw the posts and made the requested repairs because he
believed that the posts “were sufficient to support [the deck’s] weight.” Second, no
evidence suggests that, on seeing such posts, a reasonably diligent inspection would
have been expanded to search for this kind of hidden water or termite damage (which
would have required cutting into the house ). See Rainey, 255 Ga. App. at 300 (out-
of-possession landlord was not liable for plaintiff’s injury on uneven steps and small
landing when the condition of the steps and landing were not the type of structural
defect that would have been discovered during pre-purchase building inspection).
And in any event, there is no evidence that such an inspection before WCE leased the
property would have turned up a damaged beam. The plaintiffs introduced no
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evidence that the beam in question necessarily or even likely would have been
damaged at that time.
This is not to say that a similar line of reasoning could not support liability
based on constructive knowledge. The idea that an out-of-possession landlord’s
knowledge of one condition reasonably should have prompted discovery of another,
otherwise hidden defect is sound in theory. See, e. g., Davis v. All-State Homes &
Props., 233 Ga. App. 60, 61 (503 SE2d 331) (1998) (landlord’s knowledge that recent
water leak had rotted some of a trailer’s particle-board flooring raised jury issue about
whether the landlord “knew or should have known about the latent hazardous
condition of the floor’s integrity” near the part of the floor that had rotted). But that
kind of theory finds no support in the evidence of this case for the reasons we’ve just
discussed. Put simply, the plaintiffs’ theory that seeing the posts that supported the
deck should have prompted discovery of the hidden damage here rests on speculation,
not evidence from which a jury could conclude that WCE should have known about
the dangerous condition. See Lonard v. Cooper & Segrue Props., Inc., 214 Ga. App.
862 (449 SE2d 348) (1994) (landlord had no constructive knowledge of holes in
ground because although landlord conducted general visual inspection of lot at time
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tenant took possession, a reasonable inspection did not reveal fence post hole covered
by leaves).
Because the plaintiffs have not presented evidence from which a jury could
conclude that WCE knew or reasonably should have known about the damaged,
hidden beam that led to the deck’s collapse, and the contrary conclusion was the
trial court’s only basis for denying summary judgment, we must reverse the
decision below. See Aldredge, 341 Ga. App. at 304 (1) (in a deck collapse case
where tenant’s guests sued landlord, summary judgment in favor of landlord
warranted where the record contained no evidence that landlord had actual or
constructive knowledge that the concealed interior rim joist connecting the deck to
the house was rotten).
Judgments reversed. McFadden, P. J., and Senior Appellate Judge Herbert
E. Phipps, concur.
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