dissenting.
For the reasons given in my dissent in Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591 (466 SE2d 58), I respectfully dissent from the affirmance of summary judgment in the Rischacks’ tort action against the City of Perry and the New Perry Hotel as the owner and occupier of land respectively. In my view, a jury should determine whether plaintiff Beverly Rischack failed to exercise ordinary care for her own safety when she stepped into a depression in the grassy median between the curb and the sidewalk adjacent to the hotel, and fell, breaking her ankle. In Malone v. City of Rossville, 107 Ga. App. 271, 272 (2) (129 SE2d 563), based on facts very similar to the case sub judice, this Court approved a jury *860instruction on the City’s duty to maintain safe streets coupled with the instruction that if plaintiff Beverly Rischack “ ‘by the exercise of ordinary care and diligence for her safety [plaintiff] could not have avoided that injury, then she would be entitled to recover.’ ” (Emphasis supplied.) Id. at 273.1 further dissent from the affirmance of summary judgment based, in my view, on undocumented assumptions and inadmissible evidence that only the City of Perry had any ownership interest in the realty where plaintiff actually fell.
An owner or occupier of land “has a duty under OCGA § 51-3-1 with regard to the approach to his premises circumscribed by his right in the approach. If his right in the approach is the fee then the duty under OCGA § 51-3-1 is the exercise of due care by one who has the rights of an owner of a fee. He has the widest latitude in the use of the approach and must exercise due care within that framework to keep the approach safe. If his right in the approach is an easement his duty is to use due care toward his invitees in the exercise of his rights under the easement. He has a more limited framework than the owner of the fee. His duty does not require him to do things not permitted under the easement. If the approach is a public way his duty under OCGA § 51-3-1 is to exercise due care within the confines of his right in the public way. His rights in the public way may be quite limited but nonetheless exist.” Todd v. F. W. Woolworth Co., 258 Ga. 194, 195 (1), 196 (366 SE2d 674).
The majority would conclude that the grassy strip where plaintiff Beverly Rischack broke her ankle is not, as a matter of law applied to undisputed fact, an approach to the premises of the defendant New Perry Hotel. This is based on the erroneous assumption “that the City of Perry owned the street, sidewalk, and grass strip, and that the city had a crew of workers to maintain its rights of way!’ (Emphasis supplied.) Majority opinion, p. 856, ante. In the case sub judice, it is undisputed only that the defendant City of Perry owns the right of way to the sidewalk, grassy median strip, and the street. The evidence cited in support of the majority’s undocumented assumption concerning title to real property is the evidence of William H. Sharp, the Public Works Supervisor for the City of Perry, who affirmed that the “city is responsible for maintaining the public streets.” According to Sharp’s “understanding, we [the City of Perry] have the final say on anything that goes on our right-of-way.” This testimony is, however, hearsay as to the City’s title to real property. It is also incompetent opinion testimony as to a legal conclusion concerning the extent of title. OCGA § 24-9-65; Wells v. Metropolitan Life Ins. Co., 107 Ga. App. 826, 834 (131 SE2d 634). Although the City removed a large elm tree from the median in 1992, it is further undisputed that defendant New Perry Hotel exercises some concurrent dominion over the median at issue by conducting routine main*861tenance of the area surrounding its premises, including the City of Perry’s right of way. “Where title to a public road or highway is not shown to be in the public by express grant, there is a presumption that it exists merely as an easement, under which the base fee in the underlying ground remains in the adjacent owners.” (Footnote omitted.) Pindar, Ga. Real Estate Law & Procedure, § 5-14 (4th ed. 1993). The record in the case sub judice is simply devoid of competent evidence delineating the City’s interest in the grassy strip between the city street and the city sidewalk. There is thus an evidentiary presumption that the defendant City of Perry has only an easement, with the fee remaining in the defendant New Perry Hotel. Accordingly, I do not join in the majority’s analysis that the grassy strip is, as a matter of law, not an approach to the New Perry Hotel. Consequently, I do not agree that the defendant New Perry Hotel is relieved of liability on the ground that the median is a mere public way. Rather, the jury should determine whether the median area adjoining both the sidewalk and public parking constitutes an approach to the premises by which plaintiff Beverly Rischack and others were impliedly induced to traverse as invitees, rather than mere pedestrians, as they exit and enter the premises. Motel Properties v. Miller, 263 Ga. 484, 486 (2) (436 SE2d 196). Since my colleagues in the majority would affirm the grant of summary judgment despite the existence of genuine issues of material fact, I respectfully dissent.
Decided December 5, 1996 Reynolds & McArthur, Charles M. Cork III, for appellants. Swift, Currie, McGhee & Hiers, Christopher D. Balch, Chambless, Higdon & Carson, Thomas F. Richardson, William H. Anderson III, for appellees.