Lore v. Suwanee Creek Homeowners Ass'n

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

Because Lore was equally aware of the possibility that the ground around the sinkhole could give way and because nowhere, either below or on appeal, is there any argument made of a “duty to inspect” the sinkhole, I respectfully dissent in Case No. A10A0012.1 concur in Case No. A10A0013.

In Lore’s brief in response to SCHOA’s motion for summary judgment, her argument concerning SCHOA’s knowledge of the dangerous condition was that SCHOA had knowledge of the problem because she told them about it. Specifically, Lore contended:

So again the question is how can someone have “superior knowledge” of the existence of a definable problem!?] It either exists or it does not exist and you either know about it or do not know about it. It is for the jury to determine who had “superior knowledge” and not this Court as a matter of law. As noted earlier, the SCHOA had extraordinary knowledge about the hole as well as the stormwater runoff issue which caused the hole, because she [Lore] had provided them with the information they had requested.

This is no argument at all for the proposition that SCHOA had *174superior knowledge and does not even raise the issue whether SCHOA inspected or should have inspected the sinkhole.

Likewise, at the hearing on SCHOA’s motion for summary judgment, Lore’s counsel argued:

As to the fall, it can be assumed that were it not for that water coming from that pipe on that hill and that ditch that is not there and no action whatsoever taken by the Homeowners Association to alleviate this over the course of four years after repeated pleadings, her accident and her injuries would not have occurred because there would not have been any collapse of the ground. She finds herself at the bottom of it in a split second because she was standing on solid ground. No indication that there was a problem where it undermined the ground where she was standing.

Thus, at oral argument, Lore made no mention of a duty to inspect because her contention to the trial court was that it was impossible for anyone to know that the ground would give way.

In light of this, the trial court correctly held that because Lore admitted that she had equal to or more knowledge about the hole and the dangerous condition of the property than anyone, and because Lore did not dispute this admission or point to evidence which contradicted this admission, then her knowledge was equal to or greater than that of SCHOA and therefore SCHOA was entitled to summary judgment on Lore’s personal injury claim. To reverse the trial court on this issue would be to apply a wrong for any reason rule, which this Court does not do. See Clark Atlanta Univ. v. Williams, 288 Ga. App. 180, 182 (654 SE2d 402) (2007) (this Court “must refrain from reversing a ruling on a ground not raised or considered below”).

Moreover, both below and on appeal, Lore consistently claimed that the basis of SCHOA’s liability was its failure to control the runoff water which caused the problem of the unstable ground. In arguing that SCHOA should not be allowed to disclaim knowledge by “sticking] its head in the sand,” she never claimed it should have inspected the sinkhole, but rather should have acknowledged the problems caused by the stormwater runoff. Accordingly, the record below shows no allegation of constructive superior knowledge due to SCHOA’s failure to inspect the sinkhole. SCHOA was therefore never on notice that it needed to address the issue or to present evidence regarding what an inspection might have revealed about any propensity'of the ground around the sinkhole to give way.

SCHOA would be entitled to summary judgment in any event, however, because, as stated above, an inspection would not have *175given SCHOA any knowledge superior to what Lore had already pointed out and complained about during the course of this dispute, i.e., that the soil was being undermined by the water runoff and this is what caused the sinkhole and, since it was continuing, would cause further collapses in the area. The record also shows that Lore had additional knowledge of the specific danger posed by the area around the sinkhole. Lore testified at her deposition that she had watched the hole for two years and it “tripled in width” since she had been monitoring it.

Decided June 24, 2010 Reconsideration denied July 13, 2010. Hall, Booth, Smith & Slover, Kenneth D. Jones, W. Scott Hen-wood, for appellants. Weissman, Nowack, Curry & Wilco, Julie L. Sellers, Jason A. LoMonaco, Bouis, Kyle & Burch, Charles M. Medlin, Wayne S. Tartline, for appellee.

Therefore, because, as Lore acknowledged, she had more knowledge about the dangerous condition of the sinkhole than anyone, because she knew that the stormwater runoff was causing the ground to become unstable in that area, and because she knew that the ground around the sinkhole was steadily giving way, I cannot agree with the majority’s conclusion that “there is no evidence that she had knowledge of the instability of [that] area.”