Smith v. Housing Authority of Athens

Beasley, Presiding Judge,

dissenting.

The child “had the status of an invitee to whom the law requires ordinary care to be accorded.” Cooper v. Anderson, 96 Ga. App. 800, 808 (101 SE2d 770) (1957). Thus the analysis of what he knew or should have known is different from that given his mother. However, an examination of her testimony and that of others is necessary because the child has not been deposed. There was evidence that several bricks or blocks from the wall fell on the six-year-old kindergartner and injured him while he was playing outside with other children. His mother could see some of it occurring, as she was sitting inside close to a window and was watching the children from time to time to be sure they did not go in the street. According to her, nothing was touching the wall at the time, the children were not climbing on it, they were just playing next to it, and the bricks just fell. She had not seen any defect in the wall beforehand, but she was not paying attention to it when she walked up the sidewalk to the apartment, nor was there any reason for her to do so. She knew of nothing she could have done to prevent the incident.

The child’s aunt, who had lived in the apartment for about three years, knew the blocks were loose, having noticed this condition about *507a week before the defendant’s periodic inspection. She did not see the incident occur, and she did not think her sister saw it either. Three bricks fell. She had noticed that the whole wall appeared to be decaying, several weeks before the incident. Other children climbed on the wall, but hers did not. She had seen two of the bricks positioned about to fall, leaning a little, with gaps in the cement. The third one, underneath the other two, also fell. She called the defendant’s maintenance department when there were problems inside the apartment but she did not report the loose bricks because she believes the inspectors are supposed to check outside. She did not think that the bricks would fall on the children, and she had no idea why they fell.

The defendant’s director of maintenance, who oversees the inspection, repair, and maintenance of the units, stated that the last inspection of this unit was on February 1, 1991, which was approximately two months before the bricks fell (on April 7, 1991). He stated that no defect was noted and that defendant was not aware of defects in the wall, but he did not state that he personally inspected and knew that no defect was present. Nor did he state that the wall was even inspected. As to the inspection after the incident, he did not state that he conducted it and that what was found was within his personal knowledge. Chandler v. Gately, 119 Ga. App. 513 (1a) (167 SE2d 697) (1969).

Defendant has not shown that it did not know of the loose condition of the bricks or would not have seen it had it looked at the wall when it conducted its inspection of the premises. “Where the owner of the [premises] is shown to have made inspection of the [premises] for the purpose of discovering defects therein, [it] is chargeable with notice of any defects which should have been discovered by the exercise of ordinary care and diligence.” Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683, 684, 692 (6) (9 SE2d 773) (1940). Nor is there any evidence that the child saw or should have seen the loose bricks on top of the wall. The evidence does not eliminate superior knowledge, either actual or constructive, on the part of the landlord at this stage of the development of the case. See Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 167 (2) (424 SE2d 845) (1992).

The facts in Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140 (424 SE2d 85) (1992), differ significantly. There the five-year-old child fell over a static brick retaining wall, which ran the entire length of one end of an open field. The wall, which was not defective, varied in height from one inch to one-and-one-half feet above the ground, and the child fell when running to retrieve a ball. The wall was open, obvious, and in plain view of the injured invitee, the child. Here the perilous condition was loose bricks or blocks on a concrete masonry screen wall, the height of which defendant has not shown. It was high enough for the neighbor’s little boys to climb on to *508get on top of the house. The bricks, not the child, made the movement which caused the injury. There is no evidence thus far that the child knew or should have known of the hazard in the exercise of ordinary care. Defendant as movant has not established that the defect was observable to the child playing in the yard or that the child failed to exercise ordinary care in connection with it. See Ga. Farmers’ Market Auth. v. Dabbs, 150 Ga. App. 15, 16 (2) (256 SE2d 613) (1979), cited in Winchester, supra at 142.

Decided February 14, 1994 Reconsideration denied March 18, 1994. Sherry J. Locklin, for appellant. Fortson, Bentley & Griffin, Robert N. Elkins, for appellee.

Nor does it eliminate the element of proximate cause, the basis for the trial court’s ruling. Assuming, for the sake of considering this element, that the landlord breached its duty of repair by not stabilizing or removing the loose bricks, it has not shown that this failure to act was not the proximate cause of their falling when being jarred by some normal, foreseeable means, such as someone bumping the wall or a heavy vehicle rumbling past on the street.

The grant of summary judgment was not warranted and should be reversed. Pace v. M. E. Hunter & Assoc., 195 Ga. App. 23, 25 (3) (392 SE2d 545) (1990). Compare Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

I am authorized to state that Judge Blackburn joins in this dissent.