Redding v. Tanner

Andrews, Chief Judge,

concurring in part and dissenting in part.

As noted in the majority, this Court conducts a de novo review of the evidence in considering summary judgment grant of denial. Goring v. Martinez, 224 Ga. App. 137 (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). Additionally, the grant of summary judgment will be affirmed on appeal if it is right for any reason. Deese v. NationsBank, 222 Ga. App. 275, 277 (1) (474 SE2d 18) (1996). Although I concur in Division 1 of the majority, I must respectfully dissent because I believe that, given the uncontested facts, Tanner was entitled to summary judgment on the issue of proximate cause and, therefore, the trial court’s judgment was correct for that reason.

In addition to the facts set out in the majority, viewing the evidence in favor of the Reddings, the following facts are pertinent. Part of the Purchase and Sale Agreement signed by the Reddings was a Seller’s Property Disclosure Statement which had been completed by Ms. Thurmond. Under “Structural Items,” subsections (a) and (b) asked if Ms. Thurmond was aware “of any past or present movement, shifting, deterioration, or other problems with walls or foundation” or “any past or present cracks or flaws in the walls or foundations,” to which she responded affirmatively. The exterior walls of the house, *253including the gables1 on the second floor, were brick. Substantial vertical cracks in the brick on the gables were the basis for the Red-dings’ claim of negligent inspection.

Mr. Redding made no personal inspection of the home before purchasing it, and when Tanner arrived to conduct the inspection, Mr. Redding did not advise him of any specific problem areas which he wanted inspected, such as those designated by Thurmond. Red-ding was aware Tanner had no ladder and intended to use binoculars for the roof and eaves inspection.

“ ‘Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury.’ [Cit.] The proximate cause requirement constitutes a limit on legal liability; it is a policy decision that for a variety of reasons, such as an intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery. [Cit.]” Stegall v. Central Ga. E.M.C., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996).

“The doctrine of ‘avoidable consequences’ does not rest upon the idea that defendant is relieved of any duty toward plaintiff, but denies recovery for any damages which could have been avoided by reasonable conduct on plaintiff’s part. Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980). Avoidance of the consequences [OCGA § 51-11-7] involves the failure to take action to overcome defendant’s negligence after it is actually discovered by plaintiff or might have been discovered by plaintiff’s exercise of ordinary care. Lanier v. Turner, 73 Ga. App. 749, 753 (38 SE2d 55) (1946).” Newman v. Collins, 186 Ga. App. 595, 596 (1) (367 SE2d 866) (1988) (physical precedent).

Here, assuming Tanner’s negligence in not inspecting the gables, Redding was aware that Tanner was not going onto the roof and would not be able to adequately inspect the gables area or, arguably, the roof. Redding at this point had been advised by Thurmond of settling and cracking problems with the house, and knew or should have known of the need to fully inspect all walls and foundations.2 Instead of insisting that Tanner go onto the roof or going himself before com*254mitting to purchase a $233,500 house, Redding accepted this failure to properly inspect and did not take any other steps to protect himself from defects in the roof and gables area. Therefore, because the evidence establishes that the Reddings, by the exercise of ordinary care, could easily have prevented the harm to themselves which they say resulted from Tanner’s failure, they were not entitled to recover from Tanner, Winn-Dixie Stores v. Nichols, 205 Ga. App. 308, 311 (3) (422 SE2d 209) (1992), and I believe summary judgment was rightly entered for this reason.

Decided March 17, 1998. Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, for appellants. Sell & Melton, Jeffrey B. Hanson, for appellees.

The triangular wall section at the ends of a pitched roof, bounded by the two roof slopes and the ridge pole. American Heritage Dictionary (2nd College ed. 1985), p. 543.

A plaintiff may not recover, even from the original contractor/seller, for injuries caused by construction defects which were discoverable upon reasonable inspection. Florence v. Knight, 217 Ga. App. 799, 800 (459 SE2d 436) (1995).