author: McMillian, Judge.

text:
    A13A2447.
    McMANUS et al. v. TAYLOR et al. JACKSON v. TAYLOR et al. TAYLOR v. McMANUS et al. TAYLOR v. JACKSON.
    A13A2499.
    A14A0097.
    A14A0098.
    (756 SE2d 709)
   McMillian, Judge.

These four related appeals arise out of a motor vehicle accident that occurred in Burke County, Georgia on March 17, 2012. In Case No. A13A2447, Krystal McManus, individually and as representative of the estate of Dustin Tyler Durham, and Jessie Clyde Durham, individually (collectively “McManus”) appeal the trial court’s grant of summary judgment to defendant Eddie Taylor. In Case No. A13A2499, David Allen Jackson, Jr. (“Jackson”) likewise appeals the trial court’s grant of summary judgment to Eddie Taylor. In addition, defendant Freddie Taylor cross-appeals the trial court’s denial of his motion for summary judgment in both the McManus and Jackson cases (Case Nos. A14A0097 and A14A0098, respectively). Although these cases were not formally consolidated at the trial level, they involve the same questions of fact and law, and each motion for summary judgment was ruled on in a single order. Therefore, we will address them together on appeal.

We review the denial or grant of summary judgment de novo to determine whether there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Johnson v. Bartley, 321 Ga. App. 59, 59-60 (741 SE2d 275) (2013). So viewed, the evidence shows that in the early morning hours of March 17, 2012, Robert William Taylor (“Billy”) drove a 2001 Pontiac Firebird (“Firebird”) to the home of Krystal McManus. Shortly after arriving there, Billy, McManus’s son Dustin Tyler Durham, Michael Collins, and Jackson decided to go for a ride in the Firebird. There is evidence that Collins was in the front passenger seat, Jackson was in the back seat behind Collins, and Durham was seated behind Billy, who was driving. Not long after driving away from the McManus residence, Billy lost control of the vehicle and crashed into a tree. As a result of the crash, Durham died of blunt impact head trauma, and Jackson was paralyzed from the waist down. Billy was eventually charged with vehicular homicide, driving under the influence, reckless driving, and driving with a suspended license.

On March 30, 2012, Appellant Jessie Clyde Durham filed suit against Billy Taylor. His complaint was later amended several times to add Krystal McManus as a plaintiff and to add Taylor Brothers Auto Sales, Incorporated (“Taylor Brothers”), Freddie Taylor, Eddie Taylor, Taylor Auto Shop, Inc., and Taylor Bros X-Press, Inc. as additional defendants. Appellant Jackson filed suit one month later against Billy Taylor, Taylor Brothers, Freddie Taylor, and Eddie Taylor.

Billy is the 24-year-old son of Freddie Taylor and nephew of Eddie Taylor. Eddie Taylor is the CEO of Taylor Brothers, a local company that sells used cars in Burke County. Freddie Taylor is the company’s CFO. For several years prior to the accident, Taylor Brothers had authorized Billy to purchase cars at various auctions using its dealer’s license. Once he purchased a vehicle, he gave Taylor Brothers the right of first refusal to purchase it for resale. If Taylor Brothers chose not to purchase a vehicle from Billy, he would resell it at another auction for profit. Billy had purchased the Firebird involved in the accident at an auction in the name of Taylor Brothers six months earlier. Freddie Taylor decided that he wanted to personally keep the vehicle as a collector’s car, which he stored under cover in a barn on his personal property, although the car remained titled in the name of Taylor Brothers. Eddie Taylor was not aware that his brother had kept the car until he was told sometime later. He saw the car only once, at his brother’s house, before the accident.

On March 15,16, and 17,2012, Freddie and Eddie Taylor were in Tybee Island, Georgia, where they have a vacation home. On March 15, Trey Taylor, the nephew of both Freddie and Eddie Taylor, called Freddie and asked if he could borrow the Firebird to drive to Jackson, South Carolina to watch the drag races that night. Freddie gave Trey permission to use the vehicle for the limited purpose of going to the Jackson races only, with explicit instructions to return the car to his house immediately upon returning from South Carolina that Thursday night. There is no evidence that Eddie Taylor was aware of this conversation or knew that Trey was borrowing the vehicle at all, and he did not learn of the vehicle’s use until after the accident. Upon reaching his uncle’s house where the Firebird was located, Trey had to call him back in order to find the vehicle’s keys, which were hidden in a separate location.

That evening, Trey drove himself and Billy to the races and then returned to Burke County. However, instead of returning the Firebird to Freddie Taylor’s house as requested, he left the car at Billy’s apartment and put the keys under the seat. There is evidence that the next day, March 16, Trey and Billy drove the Firebird to Augusta and to various local places in Burke County. That evening, Trey again left the car at Billy’s apartment before returning to his own home. Billy eventually drove the Firebird to McManus’s home, and the accident occurred nearby around 1:00 a.m. on March 17.

Billy, who was twenty-two years old at the time of the accident, had a total of eleven driving violations between 2007 and 2011, including five for speeding and two DUIs. There is evidence that both Freddie and Eddie Taylor knew at least some details of Billy’s driving record and were aware that his driver’s license had been suspended. Although both deposed that Billy had not driven any Taylor Brothers’ vehicles while his license was suspended, various witnesses averred that they saw Billy driving a rollback (used to tow vehicles) with Taylor Brothers signs on it several times in the year before the accident, as well as driving various vehicles back and forth from Taylor Brothers to another auto shop to be repaired.

Following discovery, Eddie Taylor filed a motion for summary judgment in both the McManus and Jackson matters. Shortly thereafter, Freddie Taylor and Taylor Brothers also filed their summary judgment motions in each case. After a hearing, the trial court granted Eddie Taylor’s motions for summary judgment but denied those filed by Freddie Taylor and Taylor Brothers. These appeals and cross-appeals followed.

Case Nos. A14A0097 and A14A0098

1. In his cross-appeals, Freddie Taylor argues that the trial court erred in denying his motions for summary judgment because there is no genuine issue of material fact as to (1) whether he negligently entrusted the vehicle to Billy; (2) whether he entered into a joint venture with the other defendants; or (3) whether he entered into a civil conspiracy with the other defendants. Because we find the trial court erred in denying summary judgment to Freddie Taylor, we reverse.

In a negligent entrustment claim, liability arises from the negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless. To recover under this theory of negligence, therefore, a plaintiff must prove that the vehicle owner gave the allegedly incompetent driver permission to drive the vehicle.

(Citations and punctuation omitted.) Bashlor v. Walker, 303 Ga. App. 478, 480 (1) (a) (693 SE2d 858) (2010); see also Jones v. Cloud, 119 Ga. App. 697, 699 (168 SE2d 598) (1969) (“Knowledge of the driver’s incompetency is an essential element of the rule which holds an owner liable for furnishing his automobile to an incompetent driver and such knowledge must be actual rather than constructive”) (citations and punctuation omitted).

Although McManus and Jackson are able to establish that Freddie Taylor did give express permission to Trey to drive the Firebird to Jackson, South Carolina on Thursday, March 15, 2012, that permission was clearly and undisputedly limited. See Willis v. Allen, 188 Ga. App. 390, 390 (373 SE2d 79) (1988) (affirming grant of summary judgment to defendants on negligent entrustment claim where, although defendants had allowed their brother to use their car while he was living with them, there was no evidence that they had done so since he moved out). Both Billy and Freddie Taylor averred that Billy did not have permission to drive the Firebird. Their testimony is supported by the fact that neither Billy nor Trey knew where the keys to the Firebird were kept, and Trey was forced to call his uncle a second time in order to gain access to those keys. McManus and Jackson have pointed to no direct evidence otherwise. Where the uncontroverted evidence shows that Billy took the Firebird without Freddie Taylor’s permission and knowledge, it cannot be said that Freddie Taylor lent Billy the car or otherwise entrusted him with it. See Williams v. Britton, 226 Ga. App. 263, 264 (485 SE2d 835) (1997) (affirming grant of summary judgment to vehicle owner where the vehicle was driven without his permission and knowledge).

McManus and Jackson, however, argue that Billy was employed by Taylor Brothers, such that there is an inference that permission was given to use the vehicle, and that this inference is sufficient to withstand summary judgment. We disagree. Even assuming that Billy was employed by Taylor Brothers, for purposes of considering these summary judgment motions, we find no genuine issue of material fact as to whether Freddie Taylor permitted Billy to drive the Firebird on the night of the accident. It is undisputed that Freddie Taylor retained the Firebird for his personal use and enjoyment and that it was not used in furtherance of any business of Taylor Brothers even though the title remained with the company. And Billy drove the Firebird for wholly personal purposes, i.e., to attend a party. The evidence also shows that no one, not even Freddie Taylor himself, had driven the Firebird for months leading up to the accident. Moreover, Billy testified that he did not have permission to drive the Firebird. His cousin, Trey, also testified that he knew not to let Billy drive, even if that instruction was not explicitly repeated. There can be no entrustment of a vehicle when it is taken without permission and operated without the owner-entrustor’s knowledge and consent. See, e.g., Pague v. Pendley, 177 Ga. App. 573 (340 SE2d 190) (1986) (affirming grant of summary judgment to vehicle owner under theories of agency, negligent entrustment, and family purpose doctrine where owner’s ex-husband had been given permission to stay the night at her residence and then, unbeknownst to her, took her vehicle and caused an accident the following morning); see also Grant v. Jones, 168 Ga. App. 690, 693 (310 SE2d 272) (1983) (physical precedent only) (affirming grant of summary judgment to vehicle owner where employee took the vehicle on a personal mission after work hours without permission or owner’s knowledge because there was no entrustment of the vehicle at the time of the accident).

McManus and Jackson also attempt to bolster their allegation of implied permission by showing that Billy had been seen driving other vehicles owned by Taylor Brothers around town before the accident. However, whether such circumstantial evidence is sufficient to prove that Billy had permission to drive other vehicles at other times is not sufficient evidence to create a genuine issue of material fact as to Freddie Taylor’s entrustment of the Firebird on the night of the accident. See Butler v. Warren, 261 Ga. App. 375 (582 SE2d 530) (2003) (affirming grant of summary judgment where there was no evidence that defendants entrusted the vehicle to their employee for that particular use); see also Watkins v. Jackson, 215 Ga. App. 380, 380 (451 SE2d 111) (1994) (evidence of prior vehicle use not sufficient to withstand summary judgment on a negligent entrustment claim). We also point out that, despite several witnesses’ testimony that they had seen Billy drive the Firebird in the days prior to the accident, the record does not reflect that these incidents took place either (1) with Freddie Taylor’s permission or (2) prior to Thursday, March 15, when Trey obtained permission to drive the vehicle while Freddie Taylor was out of town. See id.

McManus and Jackson’s contention that Freddie must have foreseen that Billy would recklessly drive the vehicle on Friday night/Saturday morning — even though he only gave permission to Trey to drive the vehicle, and even then only on Thursday night —• “amounts only to conjecture and does not establish a genuine issue of material fact precluding summary judgment.” Bashlor, 303 Ga. App. at 482. Similarly, their argument that the

nature of the witnesses’ testimony and their relationship to each other in this case itself creates an issue of fact as to its credibility is not legally sound. An issue of credibility is not raised where there is no conflicting or contradictory evidence on a material matter or impeachment, or inherent discredit.

(Emphasis in original.) Willis, 188 Ga. App. at 392.

Because McManus and Jackson are unable to establish that Freddie Taylor had given Billy permission to drive the Firebird, either expressly or impliedly, we need not consider whether Freddie Taylor had actual knowledge of Billy’s alleged incompetence or habitual recklessness. Liability under a theory of negligent entrustment

is premised upon both the exercise of the power to entrust an instrumentality and actual knowledge of the incompetency of the one to whom the instrumentality is entrusted. Mere exercise of the power to entrust an instrumentality without the actual knowledge of incompetency or mere possession of the requisite actual knowledge without the requisite power to entrust will not support a finding of liability under this theory.

(Emphasis in original.) Viau v. Fred Dean, Inc., 203 Ga. App. 801, 803 (3) (418 SE2d 604) (1992); see also Danforth v. Bulman, 276 Ga. App. 531 (623 SE2d 732) (2005). Accordingly, we find that Freddie Taylor has established there is no genuine issue of material fact as to whether he entrusted the Firebird to his son, and it was therefore error for the trial court to deny his motions for summary judgment.

2. McManus’s joint venture theory of liability in Case No. A14A0097 likewise fails. “A joint venture arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control ... so as to render all joint venturers liable for the negligence of the other.” (Citation and punctuation omitted.) Williams v. Chick-Fil-A, Inc., 274 Ga. App. 169, 170 (617 SE2d 153) (2005). Even if Billy were involved in a joint venture with Freddie Taylor, the undisputed evidence shows that at the time of the accident, Billy was operating the vehicle on a purely personal mission. See Williams, 274 Ga. App. at 172 (finding that under such circumstances, the trial court did not err in concluding as a matter of law that the driver and the corporation were not engaged in a joint venture or other agency relationship with regard to the events that resulted in plaintiff’s injuries). We therefore find that the trial court erred in denying summary judgment to Freddie Taylor as to McManus’s joint venture claim in Case No. A14A0097.

3. McManus’s final enumeration of error in Case No. A14A0097 is also without merit. Georgia law does not recognize an independent tort of “conspiracy.” Rather, a conspiracy is a combination between two or more persons to do some act which is a tort or else to do some lawful act by unlawful methods. See Cook v. Robinson, 216 Ga. 328, 328 (1) (116 SE2d 742) (1960). Therefore, the gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. Id. Pretermitting whether Billy and Freddie Taylor were engaged in a civil conspiracy to allow Billy (despite his lack of a license) to purchase vehicles on behalf of Taylor Brothers for profit, the real difficulty with McManus’s theory is that there is no evidence that the instant accident was caused by such a business arrangement. Rather, Billy was undisputedly on a purely personal mission at the time of the accident. Moreover, nothing in the record shows that Freddie had any knowledge that Billy was on this personal mission, and therefore they could not have formed the requisite tacit understanding to engage in a civil conspiracy as to the event giving rise to McManus’s injuries. See, e.g., Lewis v. D. Hay Trucking, Inc., 701 FSupp.2d 1300, 1310 (N.D. Ga. 2010) (applying Georgia law). We therefore reverse the trial court’s denial of summary judgment to Freddie Taylor as to McManus’s claim of civil conspiracy in Case No. A14A0097.

Case Nos. A13A2447 and A13A2499

4. In Case Nos. A13A2447 and A13A2499, McManus and Jackson argue that the trial court erred in granting Eddie Taylor’s motions for summary judgment because a genuine issue of material fact exists as to (1) whether Eddie Taylor negligently entrusted the vehicle to Billy; (2) whether Eddie Taylor entered into a joint venture with the other defendants for profit with rights of mutual control as to the employment or direction of Billy Taylor; and (3) whether Eddie Taylor entered into a civil conspiracy with the other defendants where it was to the mutual benefit of the defendants to knowingly allow Billy Taylor to operate vehicles on their behalf despite their imputed knowledge of his incompetence or habitual recklessness. In support of their negligent entrustment claim, McManus and Jackson argue that Eddie Taylor had, at a minimum, control over the use of the Firebird, that Billy had Eddie Taylor’s implied consent to use the vehicle, and that Eddie Taylor had actual knowledge of Billy’s alleged incompetence or habitual recklessness. McManus and Jackson are correct that one need not be the legal owner of a vehicle in order to be liable under the theory of negligent entrustment. See Jones, 119 Ga. App. at 701 (1) (b). However, we nonetheless find the evidence insufficient as a matter of law to show that Eddie Taylor negligently entrusted the Firebird to his nephew.

While conceding that Eddie Taylor did not give Billy express permission to drive the Firebird, McManus and Jackson maintain that Billy had his implied permission because Eddie Taylor did not tell Trey that only he was allowed to drive the Firebird when he called Freddie Taylor to ask for permission. We find no merit to this argument where there is no evidence that Eddie Taylor was even aware that a conversation between Freddie Taylor and Trey took place regarding his use of the Firebird. In addition, for the reasons stated in Case Nos. A13A2447 andAl3A2499, Division 1 above, any inference that Billy had implied permission through his alleged status as an employee of Taylor Brothers is not sufficient to withstand summary judgment in this case where that inference has been rebutted.

McManus and Jackson also attack Eddie Taylor’s credibility, in part based on his familial relationship with Billy, in an attempt to defeat summary judgment. However, “[sjummary judgment cannot be avoided based on speculation or conjecture; once the pleadings are pierced with actual evidence, the plaintiff must point to admissible evidence showing a genuine issue of fact.” Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010). As our Supreme Court explained,

while the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor, . . . that does not mean that a plaintiff may defeat a defendant’s properly supported motion for summary judgment without offering any concrete evidence from which a reasonable juror could return a verdict in his favor and by merely asserting that the jury might, and legally could, disbelieve the defendant’s denial of wrongdoing.

(Citation and punctuation omitted.) Id. at 634 (3) (c) (citing Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (106 SCt 2505, 91 LE2d 202) (1986)). Therefore, a “nonmoving party may not avoid a properly supported motion for summary judgment by simply arguing that it relies solely or in part upon credibility considerations or subjective evidence.” (Citation and punctuation omitted.) Id. Because McManus and Jackson are unable to establish that Eddie Taylor gave Billy permission to drive the Firebird, either expressly or impliedly, we need not consider whether he had actual knowledge of his nephew’s alleged incompetence or habitual recklessness. See Viau, 203 Ga. App. at 803 (3).

Decided March 21, 2014.

Lloyd N. Bell, for McManus and Jackson.

Charles C. Mayers, Tucker Long, Thomas W. Tucker, for Eddie Taylor.

Klosinski Overstreet, James C. Overstreet, Tucker Long, Thomas W. Tucker, for Freddie Taylor.

5. For the reasons stated in Divisions 2 and 3 above, McManus’s alternative theories of liability in Case No. A13A2447 likewise fail. Accordingly, we find that the trial court did not err in granting summary judgment to Eddie Taylor.

Judgments affirmed in Case Nos. A13A2447 and A13A2499. Judgments reversed in Case Nos. Al 4A0097andAl 4A0098.

Andrews, P. J., and Dillard, J., concur.

       Taylor Auto Shop, Inc. and Taylor Bros X-Press, Inc. are additional corporate entities run in various capacities by Eddie and/or Freddie Taylor. Neither is a party to this appeal.

       If Taylor Brothers purchased a vehicle from Billy for resale, Billy was paid a small profit per vehicle.

       Because neither a joint venture nor civil conspiracy claim was alleged by Jackson below, only the first enumeration of error is at issue in Freddie Taylor’s appeal of the Jackson matter in Case No. A14A0098.

       In Williams, the vehicle owner parked his car in front of his family’s home, left the keys in the car and went inside to sleep. His brother took the car while he was sleeping and caused an accident while intoxicated. This Court rejected appellants’ argument that the brother had the vehicle owner’s implied consent to drive the car where the brother testified that he had never been allowed to drive the car without permission. Id.

       McManus and Jackson argue that Billy’s testimony regarding permission to drive the Firebird is equivocal and therefore should be construed against him, citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680) (1986). However, even if we agreed with their characterization of Billy’s testimony, “Prophecy Corp. stands for the position that self-contradictory testimony is construed against the equivocator, absent a reasonable explanation for the contradiction.” (Emphasis supplied.) Korey v. BellSouth Telecommunications, Inc., 269 Ga. 108, 108-109 (498 SE2d 519) (1998). Thus, Billy’s testimony could only be construed against Billy, not Freddie Taylor. Moreover, that holding is based on “summary judgment cases which clearly state that the opposing party is entitled to judgment only where the favorable portion of the party’s self-contradictory testimony is the only evidence of his right to recover or of his defense.” (Citation and punctuation omitted; emphasis in original.) Id. at 109. Here, Billy’s testimony is not the only evidence that Freddie Taylor did not negligently entrust Billy with the Firebird.

       Only the first claim of error is at issue in Jackson’s appeal in Case No. A13A2499.


source: Caselaw Access Project

license: Public Domain

text:
    A13A1747.
    In re ESTATE OF KNAPP et al.
    (756 SE2d 716)
   McMillian, Judge.

Henry Scott Knapp (“Scott Knapp”), the former executor of his mother’s will and the nominated, but unappointed, executor of his father’s will, appeals from the order of the Probate Court of Bibb County finding that he breached his fiduciary duty, thereby damaging the other heirs to the estates —• his sister, niece, and nephew. Scott Knapp is not disputing the finding that he breached his fiduciary duty, instead contending that the remedy awarded by the probate court — that he shall not receive any further distributions from his mother’s and father’s estates — was without legal basis and exceeded the scope of permissible damages. For the reasons set forth below, we agree with Scott Knapp that the probate court erred in its judgment, and we vacate its order and remand the case for proceedings not inconsistent with this opinion.

Mary Scott Knapp (“Mary Knapp”) died on April 15, 2000, and was survived by her husband George Edward Knapp (“George Knapp”), her children Scott Knapp and Nancy Louise Knapp (“Nancy Knapp”), and by her grandchildren Andrew Knapp and Leanna Knapp (the “Grandchildren”). Mary Knapp’s last will and testament, and the codicils thereto, were admitted into probate, and Scott Knapp was appointed executor of her estate.

George Knapp died on October 25, 2005. Scott Knapp later filed George Knapp’s will and three codicils thereto with the Probate Court of Bibb County. Thereafter, in 2007, Andrew Knapp filed a petition to probate the will and the first and second codicils, while Scott Knapp filed a petition seeking to probate the third codicil. The Grandchildren and Nancy Knapp filed caveats to Scott Knapp’s petition.

Following a trial on the petitions, the probate court found, among other things, that the entire residue of Mary Knapp’s estate was bequeathed to George Knapp. Scott Knapp did not, however, timely conclude the affairs of her estate and distribute the residue to George Knapp, and he failed to file income tax returns for the estate although there had been significant income in the years following Mary Knapp’s death. Scott Knapp also failed to timely pay over or deliver certain custodial accounts, which his parents had created for the Grandchildren, as well as certain savings bonds which were titled in the Grandchildren’s name.

After making its findings, the probate court (i) admitted George Knapp’s will and its first and second codicils to record as proved in solemn form, (ii) denied Scott Knapp’s petition to probate the third codicil, (iii) appointed the county administrator, Robert E. Herndon, as administrator of George Knapp’s estate, and (iv) ordered Scott Knapp to surrender to Herndon any of the decedents’ property in his possession as well as all records of actions and transactions involving the assets of George Knapp following April 15,2000, the date of death of Mary Knapp. The probate court contemporaneously removed Scott Knapp as executor of Mary Knapp’s estate, which it determined had not been completely administered, and appointed Herndon as its administrator. Under the terms of the will and the first and second codicils, Scott Knapp and Nancy Knapp stood to inherit one-third each of George Knapp’s estate, while the Grandchildren’s one-third share was to be divided equally between them.

In 2010, the Grandchildren filed motions to assess money damages, attorney fees, CPA fees, additional estate expenses, tax penalties, and interest against Scott Knapp. Nancy Knapp later joined with the Grandchildren in seeking such relief. After an initial motion hearing, the probate court issued an interim order requiring that Scott Knapp deliver to Herndon, by December 1, 2010, all financial records remaining in his possession regarding Mary Knapp’s and George Knapp’s estates. Scott Knapp was also directed to provide Herndon with an accounting of sums paid to himself, Nancy Knapp, and the Grandchildren regarding their respective distributive shares of George Knapp’s estate by December 1, 2010, and to send Herndon a compact disk containing copies of the data files on the estates’ accounts by October 1, 2010.

The probate court set another hearing on the matter for December 9, 2010. Scott Knapp failed to appear at the hearing, and the probate court, upon finding that Scott Knapp had failed to comply with the interim order, held him in civil contempt and imposed a civil penalty of $1,000 per day, beginning December 20, 2010, and continuing thereafter until Scott Knapp purged himself of the contempt.

The evidentiary hearing on the Grandchildren’s and Nancy Knapp’s motions for assessment of damages and other relief was held on January 11, 2012. In its subsequent final order, the probate court concluded that Scott Knapp’s failure to turn over the records of the estates of Mary Knapp and George Knapp and to fully account for his dealings with the estates had been, and remained, intentional and without just cause and excuse. It noted that the civil penalty for failing to comply with the court’s order to provide an accounting and to deliver all records of the estate would have exceeded $380,000 as of the hearing date.

The probate court also determined, among other things, the amount of previous distributions from George Knapp’s estate to Scott Knapp, Nancy Knapp, and the Grandchildren, the amount of cash and investments remaining in the estate, and the probable combined value of the remaining real property. Specifically, it found that Nancy Knapp and the Grandchildren had suffered actual damages in amounts not less than: (i) $42,887 for income and estate tax interest and penalties, (ii) $15,873.60 in attorney fees and expenses for Nancy Knapp, plus additional fees for the evidentiary hearing, (iii) $28,220.37 in attorney fees and expenses for the Grandchildren, plus additional fees for the hearing, (iv) $5,559.61 for the surety bond cost to replace supposedly missing stock certificates which were ultimately found in Scott Knapp’s possession, and (v) a decline in value of the real property of the estates during the period following George Knapp’s death and the probate of George Knapp’s will, which amount was “as yet not determined because two parcels of real property remain unsold.”

After the probate court made its findings, it ordered that Scott Knapp receive no further distribution from Mary Knapp’s and George Knapp’s estates, and it directed that “[t]he remainder of the Estates, after administration is complete, shall be inherited by and distributed 50% to Nancy Louise Knapp and 50% jointly to [the Grandchildren].” Scott Knapp appeals from this order.

For purposes of our review, it is well established that “[t]he court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them.” Page v. Braddy, 255 Ga. App. 124, 126 (564 SE2d 538) (2002). See OCGA § 9-11-52 (a) (in nonjury trials in courts of record, the court’s “[findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses”). However, we review questions of law de novo. See Page, 255 Ga. App. at 126; Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

Scott Knapp contends that the probate court erred when it ordered that he receive no further distributions from his parents’ estates as a remedy for his breaches of fiduciary duty. We agree under the peculiar circumstances of this case.

To begin with, we must consider what remedies are permitted when a personal representative of an estate commits a breach of fiduciary duty. OCGA § 53-7-54 provides that “[i]f a personal representative or temporary administrator commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty,” the beneficiaries and heirs have a cause action, among other things, “[t]o recover damages”; “[t]o compel the redress of a breach of fiduciary duty by payment of money or otherwise”; and “[t]o reduce or deny compensation to the personal representative or temporary administrator.” OCGA § 53-7-54 (a) (1), (4), (7). The remedies for breach of fiduciary duty enumerated by OCGA § 53-7-54 are not exclusive and “[do] not prevent resort to any other appropriate remedy provided by statute or common law.” OCGA § 53-7-54 (c). Relying on these provisions, we have held that a breach of fiduciary duty may expose a personal representative to compensatory and general damages, as well as punitive damages if the standard for such an award is otherwise met. See In re Estate of Zeigler, 295 Ga. App. 156, 159-160 (2) (a), (b), (c) (671 SE2d 218) (2008); Heath v. Sims, 242 Ga. App. 691, 691 (531 SE2d 115) (2000) (finding that “a probate court has jurisdiction over a claim against executors of an estate in which the claimants seek payment of damages for breach of a fiduciary duty”).

Thus, it is clear that the probate court has been vested with broad powers to remedy a breach of fiduciary duty by a personal representative. The question raised in this case is whether these broad powers include divesting the personal representative of his inheritance under the terms of the will. Here, the probate court, rather than explicitly entering a judgment for damages, determined that Scott Knapp would not take any further distribution from his parents’ estates and ordered that the remainder “should be inherited by” and distributed 50% to Nancy Knapp and 50% to the Grandchildren. Neither Nancy Knapp nor the Grandchildren have identified any remedy for breach of fiduciary duty which contemplates, as a direct consequence, the loss of a bequest from a testator and the inheritance of that interest by the other heirs. Nor does any party suggest that the wills of either Mary Knapp or George Knapp authorize the probate court to divest Scott Knapp of any interest in the estates to which he might be entitled. See generally Folsom v. Rowell, 281 Ga. 494, 498 (2) (640 SE2d 5) (2007) (noting that “a testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the state”) (citation and punctuation omitted).

Nancy Knapp and the Grandchildren contend that what the probate court did, however, was award damages, which the court had the authority to do, and set off that amount against Scott Knapp’s remaining distributive share under his parents’ estates. We agree that it appears that this was the intent of the probate court as it found that “all such damages incurred by Movants and Nancy Knapp are the direct and proximate result of breaches of fiduciary duty and intentional acts of Scott Knapp.” And the probate court concluded that those damages “should be chargeable against any inheritance by him from the Estates of Mary Scott Knapp and George Edward Knapp.”

We are persuaded that the probate court’s authorization “[t]o compel the redress of a breach of fiduciary duty by payment of money or otherwise,” OCGA § 53-7-54 (a) (4), and the provision allowing “resort to any other appropriate remedy provided by statute or common law,” OCGA § 53-7-54 (c), give it broad authority to set off a money judgment against a personal representative’s share of the estate. (Emphasis supplied.) See Fowler v. Cox, 264 Ga. App. 880, 887 (1) (a) (vi) (592 SE2d 510) (2003) (allowing damage award to reduce the net estate to executrix because “they did no more than correct for breaches of fiduciary duty”). This authority is consistent with OCGA § 13-7-9, which provides that “[a] legatee or owner of a distributive share in an estate may set off such share against a judgment against him unless special reason exists requiring the collection of the judgment.” Accordingly, we see no reason why the probate court cannot require such set off under OCGA § 53-7-54 (c).

Moreover, there appears to be some authority by which the probate court could have entered judgment and thereafter levied Scott Knapp’s share of the estate. See OCGA § 53-7-23. In fact, Scott Knapp conceded as much below, asserting that “[s]ince there is no surety in this matter, Mr. Knapp’s share of the estate may be reached for levy purposes.”

Turning to the terms of the order, we find that despite the apparent intent of the probate court to set off the damages award against Scott Knapp’s share of the remaining estates, the order does not make the findings necessary to do so. The probate court found that Nancy Knapp and the Grandchildren suffered certain “actual damages in amounts not less than” $92,540.58, in the aggregate, but that other damages remained indeterminate or contemplated yet unawarded, including punitive damages. The Grandchildren suggest that given the diminution in the original value of the estates they suffered damages far in excess of the value of Scott Knapp’s remaining one-third share. However, as to the diminution in value, the probate court only found that Nancy Knapp and the Grandchildren were damaged by the decline in value of real property in the estates, but that such was “in an amount as yet not determined.”

Decided March 24, 2014.

Edward R. Downs, Jr., for appellant.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Walter E. Leggett, Jr., for appellees.

Moreover, it does not appear that the probate court determined the value of Scott Knapp’s remaining share from the estates for purposes of any set off. The $92,540.58 in actual damages found by the probate court is not necessarily greater than or equal to the value of Scott Knapp’s remaining distribution. And neither Nancy Knapp or the Grandchildren show that the value of Scott Knapp’s remaining distribution is less than $92,540.58. Although we are sympathetic to the probate court’s attempts to conclude this long-running litigation and recognize the patience exercised in the years leading up to the final order, we do not believe that OCGA § 53-7-54 permits the probate court to disallow Scott Knapp from taking his share of the estates in the absence of a specific finding of the amount of damages suffered from the breach of fiduciary duty and a further finding that the damages award is equal to or exceeds his share under the terms of the wills.

Accordingly, the probate court’s order is vacated and the case remanded for proceedings not inconsistent with this opinion. See, e.g., In re Estate of Price, 324 Ga. App. 681 (751 SE2d 487) (2013) (vacating the judgment and remanding the case to the probate court where that court failed to make findings necessary to support its ruling).

Judgment vacated and case remanded.

Andrews, P. J., and Dillard, J., concur.

       The third codicil would have effectively disinherited the Grandchildren.

       Although Scott Knapp asserts without support that Nancy Knapp is now administrator of the estates (which she denies as “obviously incorrect”), he also states that after the hearing on the petitions, the probate court “appointed [Herndon] as a county administrator of... both estates.”

       The probate court also directed Herndon to make certain distributions to Nancy Knapp and the Grandchildren, to liquidate the remaining property in the estates, and to deed the remaining property to Nancy Knapp and the Grandchildren in proportion to their interests if the property was not sold by July 1, 2012.

       Nancy Knapp and the Grandchildren have filed separate briefs asking that we affirm the probate court’s order.

       Scott Knapp also contends that the probate court violated the Separation of Powers clause of the Georgia Constitution when it ordered him to receive no further distributions from his parents’ estates. See Ga. Const. of 1983, Art. I, Sec. II, Par. III. The gravamen of that claim, however, is that the probate court sanctioned him without authority to do so, and we reach that issue here.

       It appears from the record that this remedy was requested by counsel for the Grandchildren and Nancy Knapp in order to finally conclude the litigation, even if it meant that they would not be able to fully recover for the breach of fiduciary duty. And this is essentially what the probate court did.

       OCGA § 53-7-23 provides:
      In all cases of judgments recovered against a personal representative and the sureties of the personal representative, the execution shall first be levied on the property of the sureties, and no levy shall be made on the property of the principal until there is a return of nulla bona as to the sureties.

       The probate court found that Scott Knapp’s actions “would support” an award of punitive damages “in a substantial amount,” but did not make such an award. Accordingly, we find no basis for Scott Knapp’s claim that the probate court erred in awarding punitive damages “outside the bounds allowed by law.” We note, however, that the probate court is authorized to enter an award for punitive damages on remand for breach of fiduciary duty. See In re Estate of Zeigler, 295 Ga. App. at 159-160.

       The Grandchildren apparently base their computations on the probate court’s finding that, as valued on the estate tax return filed for George Knapp’s estate, the distributive shares “would have been” $530,145.

       The probate court also included attorney fees and expenses in its damages calculation, and those amounts included additional, yet also undetermined, fees for the hearing.

       We note that the probate court found that Nancy Knapp and the Grandchildren “cannot be made whole even to the extent that their respective shares as estimated by the estate tax return, much less reimbursed for their losses in attorneys’ fees and expenses,” from the funds and property remaining in the estates. But the probate court also found that “[t]here presently remains in the Estates . . . cash and investments of $456,573.90 and the two parcels of real property having a probable combined value of not more than $180,000.” Thus, it does appear that there remains sufficient property in the estates to satisfy the $92,540.58 awarded by the probate court, if one assumes that Scott Knapp would be entitled to a one-third share under the terms of the wills.


author: MCMlLLIAN, Judge.

text:
    A13A1758.
    PINDER v. H & H FOOD SERVICES, LLC.
    (756 SE2d 721)
   MCMlLLIAN, Judge.

Donna Pinder appeals from the trial court’s decision granting summary judgment to H & H Food Services, LLC d/b/a Kentucky Fried Chicken (“H & H”), in her claim for injuries suffered in a fall on H & H’s premises in Vidalia, Georgia (the “Property’). We reverse for the reasons set forth below.

Summary judgment is proper when there is no genuine issue of material fact as to any essential element of a claim and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Word of Faith Ministries, Inc. v. Hurt, 323 Ga. App. 296, 296 (746 SE2d 777) (2013).

Here, the record evidence shows that on March 16, 2008, Pinder, her great niece, her boyfriend, and two other friends, Johnny and Jenevive McRorie, went to the Kentucky Fried Chicken restaurant (the “KFC”) on the Property for dinner. Pinder had never been to the Property before. The group arrived at approximately 6:00 to 6:30 p.m., when it was still light outside. The McRories arrived first. Johnny McRorie stated that he stood at the door waiting for Pinder and the others to come in, and he watched Pinder walk across the parking lot. At that time he observed that a parking bumper next to the handicap ramp was out of place and sticking into the parking space. Johnny McRorie stated that for Pinder and her party to have entered the restaurant they would had to have walked through the parking space with the loose bumper where she later fell and would either have crossed over it or walked near it, but he did not know how close Pinder came to the bumper.

When Pinder’s group left the restaurant at around 7:30 p.m., Pinder said “it was dark or getting dark.” When they exited the restaurant, the weather was clear and the pavement was dry, but Pinder stated that “there [was not] enough lighting.” She said the restaurant had no lights in this area of the building, and although it was “not pitch dark,” “not black-black,” “it was dark.”

After exiting the building, Pinder stood on the sidewalk outside the door talking with the McRories, while her boyfriend and her great niece went to the truck. After saying good-bye to her friends, Pinder turned toward the area with the handicap ramp, which was perpendicular to the sidewalk and slanted down toward the surface of the parking lot. The McRories had already left the immediate area, so nothing distracted Pinder as she walked toward the ramp. She was not looking down as she approached the ramp, but instead was looking straight ahead to check for traffic in the parking lot. However, Pinder looked down right before she stepped off the sidewalk. Nothing obstructed her view, and she observed that the top of the ramp appeared to be flush with the sidewalk. The photographs of the ramp show, however, that it was not completely flush with the sidewalk; rather, the sides of the ramp sloped down to the parking lot, leaving a step down from the sidewalk to the parking lot surface at the edges of the ramp. And it is undisputed that in March 2008, no signs or yellow paint existed near the handicap ramp to warn of any height differential.

Pinder stated that when she “stepped down, [her] foot got caught.” Pinder placed her right foot on the ramp without incident, but when she stepped with her left foot, her foot “went sideways,” “twisted” and “rolled a little bit.” The front part of her shoe then caught between the ramp and the parking bumper. Although she had intended to step from the sidewalk to the ramp, she actually stepped with her left foot from the sidewalk directly to the parking lot. She then started “twisting and turning” and fell into the vehicle that was parked there. Pinder landed on her right knee and rolled over into a sitting position on the ramp.

After her fall, Pinder called out to the McRories to say that she had fallen over the parking bumper. Johnny McRorie went back to check on Pinder, and he observed that she was lying with her bottom on top of the parking bumper, and then she got up and braced herself against the tire of the car parked next to the ramp. Jenevive McRorie, who saw Pinder stumble and watched her fall, said that she landed on her buttocks.

While Pinder was sitting there waiting for medical help, she took pictures of the area with her phone. As she did so, she noticed that the concrete bumper was loose and out of place. Johnny McRorie stated that the parking bumper “was slap up off the ground turned around [with] the bolt sticking up.” He said the bumper was sticking up about three inches from the ground and the bolt was also about three inches out of the top. McRorie said that the parking bumper must have been in that condition for a while because the bolt was broken and rusted. He noted that the condition of the bumper was not hidden, and he had no trouble seeing it that night. Jenevive McRorie presumed that Pinder had tripped over the parking bumper, because it was sitting about one to one-and-one-half feet up on the sidewalk. She said that it must have taken “several licks . . . from cars” to get it up there.

The photograph Pinder took of the bumper that night apparently could not be located at the time of her deposition, although a series of photographs taken from a cell phone showing the ramp and the bumper were used in later depositions. Those photographs appear to show the parking bumper angling from the handicap ramp toward the sidewalk. An H & H employee identified the photographs as accurately depicting how the Property’s ramp and parking bumper appeared in March 2008.

After Pinder’s fall, H & H employee Amanda Fraser questioned Pinder and Johnny McRorie, and she completed an incident report based on the information they provided. Fraser stated, and the form reflects, that Pinder reported that her foot “got caught behind one of the parking bumpers” as she “was coming off the sidewalk.” Pinder told Fraser that she had twisted her ankle and scraped her knee in the fall.

Pinder consulted a lawyer four days after her fall, and about one month later, Pinder and her boyfriend went back to the Property to take pictures. By that time, she said repairs had been made to the parking bumper. The McRories also returned to the restaurant three to four weeks later, and they observed that the parking bumper had new bolts in it and was put back in place.

However, H & H employees testified that no repair or maintenance work was performed on the handicap ramp or the parking bumpers either before or after March 2008, until the entire facility was demolished and rebuilt to current KFC standards in August 2010. And it is undisputed that no falls had occurred on the Property prior to Pinder’s accident. Moreover, H & H employees stated that the company had a regular safety inspection procedure, in which employees examined the parking lot several times throughout the day “just to make sure there’s nothing that needs to be turned in or reported as far as damages are concerned.” Additionally, maintenance personnel inspected all of H & H’s properties approximately once per week to look for “any obvious maintenance issues.” And prior to March 2008, H & H had not received any recommendation that the ramp or the bumpers be repaired, nor had it received any formal complaints about the ramp or bumpers.

Pinder filed suit on February 1, 2010, and H & H answered and subsequently filed a motion for summary judgment. Following a hearing, the trial court granted that motion, finding that no issue of material fact existed regarding whether the handicap ramp was improperly designed or constructed, whether the parking bumper or its state of repair caused or contributed to the fall, or whether the lighting in the area was deficient. The trial court further found that Pinder failed to present any issues of fact as to whether H & H possessed actual or constructive knowledge of the alleged dangerous condition or whether H & H had superior knowledge of such condition. The court also concluded that Pinder was negligent as a matter of law for walking in the dark. We find, however, that in reaching these conclusions, the trial court failed to construe the evidence in Pinder’s favor as required on motion for summary judgment and erred in applying the law to the evidence. We conclude, instead, that issues of fact remain precluding summary judgment.

As a general matter,

[t]o recover on a theory of premises liability, a plaintiff must show injury caused by a hazard on an owner or occupier of land’s premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public. When a premises liability cause of action is based on a “trip and fall” or “slip and fall” claim — and the lion’s share of premises liability cases are — we have refined this general test down to two specific elements. The plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.

(Citations omitted.) American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009).

However, Pinder’s burden “concerning the second prong is not shouldered until [H & H] establishes negligence [on her part], i.e., that [Pinder] intentionally and unreasonably exposed [herself] to a hazard of which [she] knew or, in the exercise of ordinary care, should have known.” (Citation and punctuation omitted.) Davis v. GBR Properties, Inc., 233 Ga. App. 550, 552 (1) (504 SE2d 204) (1998). See also Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997). And our Supreme Court has clarified

that issues such as how closely a particular retailer should monitor its premises and approaches, what retailers should know about the property’s condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.

Brown, 285 Ga. at 445 (2).

On appeal, Pinder argues that the trial court erred in finding that no issues of material fact existed with regard to (1) the existence of a hazardous condition on the Property; (2) H & H’s actual and/or constructive knowledge of the hazardous condition; and (3) her own negligence contributed to her fall.

Although the evidence is somewhat conflicting as to the circumstances surrounding Pinder’s fall, construing the evidence in her favor, as we must, it shows that the drop-off between the sidewalk and the parking lot at the edges of the ramp was not discernible from her vantage point that evening in what she contends was inadequate lighting. Moreover, the Property had no paint, signs, or other warnings of the drop down. When Pinder stepped off the sidewalk with her left foot, she intended to place it on the ramp as she had with her right foot, but instead her left foot landed further down on the parking lot surface. As she landed, the front part of her shoe caught between the ramp and the loose parking bumper resulting in her injuries, and she fell, injuring her ankle.

1. We find issues of fact in the record as to whether the conditions on the Property at the time of Pinder’s fall created a hazard.

Although Pinder produced no expert testimony to demonstrate any flaw in the construction or design of the handicap ramp, she is not attacking the ramp’s design or the construction per se. Rather, she asserts that given the ramp’s design and the hazard it created, H & H was negligent in failing to warn of a change in elevation that was not otherwise discernible under the conditions.

Pinder was not necessarily required to present expert evidence on this claim in order to survive summary judgment because nothing in the appellate record indicates that a determination of whether a hazard existed in this case requires a specialized expertise:

It is the established rule in Georgia, that where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony.

(Citations and punctuation omitted.) Hadden v. ARE Properties, LLC, 280 Ga. App. 314, 316 (1) (633 SE2d 667) (2006). See Sotomayor v. TAMA I, LLC, 274 Ga. App. 323, 326 (1) (617 SE2d 606) (2005) (physical precedent only) (expert testimony not required regarding duty of landlord to install barrier curbs in apartment parking lot). We conclude that the evidence here was sufficient to create a jury issue as to whether the lack of warning created a hazard.

In granting summary judgment, the trial court noted that Pinder “argues that she did not expect a change in elevation, yet states . . . that she looked down in the area in which she was walking and did in fact ‘step down’ when her foot popped and twisted.” But the trial court erred in focusing solely on Pinder’s choice of the phrase “step down,” and in construing that language against her, because by choosing that phrase, Pinder could have meant that she intended to “step down” the slanted handicap ramp, not that she knew she was stepping off the sidewalk to the surface of the parking lot. The court ignored the remainder of Pinder’s testimony that she could not detect a change in elevation as she approached the ramp, that she intended to place her left foot on the ramp, alongside her right foot, and the unexpected change in elevation forced her to step down on the parking lot instead of on the ramp.

Moreover, the trial court erred in finding “no evidence to show how the parking bumper or the state of the parking bumper was the basis for the fall or subsequent injury.” Johnny McRorie testified that Pinder called out to say that she had tripped over the bumper, and when he returned she was on top of it. Both of the McRories testified that the bumper was up in the air, and Jenevive McRorie testified that the bumper was up on the ramp, and she presumed that Pinder’s “foot caught on that bumper guard that was up there.” Pinder reported to the manager that her foot got caught between the bumper and the sidewalk, and the cell phone photographs appear to show the bumper slanting toward the sidewalk. We find this evidence sufficient to create a jury issue as to whether the parking bumper created a hazard.

Similarly, the trial court erred in determining that no jury issue existed regarding the adequacy of the lighting, noting that Pinder stated that nothing obstructed her view when she looked down right before stepping off the sidewalk. But Pinder also testified that it was dark, the lighting was inadequate, and she could not detect the change in elevation. Once again, we find that the trial court improperly construed Pinder’s testimony against her, by isolating her statement that nothing obstructed her view from the remainder of her testimony. Although the McRories contradicted Pinder’s description of the lighting in the area, this discrepancy only created a jury issue as to whether the lighting was inadequate.

Accordingly, factual issues remain as to whether any of these factors, or a combination thereof, created a hazard.

2. Moreover,

[i]n support of a summary judgment motion, the defendant in a slip-and-fall action... bears the onus of establishing the nonexistence of every material fact, namely, disproving its actual knowledge and pointing out the absence of evidence of its constructive knowledge of the alleged hazard.

Burnett v. Ingles Markets, Inc., 236 Ga. App. 865, 867 (514 SE2d 65) (1999). The evidence here shows that the change in elevation at the sides of the ramp, the lack of any warning regarding that change, and the amount of lighting in the area were static conditions. Accordingly, H & H was, at least, on constructive notice regarding these conditions,

as an owner/occupier is generally on constructive notice of what a reasonable inspection would reveal. Certainly, a reasonable inspection would reveal the slanted nature [of the edge of the handicap ramp as it met the sidewalk] and the fact that the [sidewalk] had not been painted yellow or orange to alert pedestrians to any danger.

Hagadorn v. Prudential Ins. Co., 267 Ga. App. 143, 146 (598 SE2d 865) (2004) (finding that property owner was on constructive notice of the slanted cement surrounding a culvert and the lack of any paint to mark potential danger). See also Davis, 233 Ga. App. at 551-552 (1) (no question existed that the owners were charged with knowledge of the static condition of their own handicap ramp). Similarly, any inspection by H & H would have revealed the view of the handicap ramp as approached from the sidewalk and the amount of lighting in the area. Accordingly, H & H must be charged with knowledge of all these conditions. Perkins v. Val D’Aosta Co., 305 Ga. App. 126, 129 (699 SE2d 380) (2010) (owner charged with knowledge of the lighting conditions, the curb’s height in relation to parking lot, the view of curb for someone descending stairs, and the absence of any paint or warning signs).

Further, the McRories’ testimony about the rusted condition of the bolt in the parking bumper and the location of the bumper before and after Pinder’s fall raises a jury issue as to how long the bumper’s condition had existed. Although the evidence shows that H & H’s procedure was to inspect the parking lot several times per day, no evidence exists regarding who performed any such inspection, or at what time it was conducted, on the day of Pinder’s fall. The evidence also does not indicate the position or condition of the parking bumper during any such inspection.

[Sjummary adjudication as to constructive knowledge arising from the duty to inspect is not authorized absent plain, palpable and undisputable proof that customary inspection procedures or cleaning practices were in place, were actually followed and were adequate to guard against known or foreseeable dangers at the time of the patron’s alleged injuries.

(Citation omitted.) Ramotar v. Kroger Co., 322 Ga.App. 28, 30-31 (743 SE2d 591) (2013). See also Burnett, 236 Ga.App. at 867-868. Because the evidence in this case is not plain, palpable and undisputable, a jury issue also exists regarding whether H & H should have discovered the condition of the parking bumper prior to Pinder’s fall.

3. We also find that issues of fact exist regarding whether Pinder should have seen the hazard and whether she exercised reasonable care for her own safety (i.e., whether she was negligent).

“[A] plaintiff’s lack of ordinary care for personal safety is generally not susceptible of summary adjudication, and summary judgment is granted only when the evidence is plain, palpable, and undisputed.” (Citation and punctuation omitted.) Belcher v. Kentucky Fried Chicken Corp., 266 Ga. App. 556, 560-561 (2) (597 SE2d 604) (2004). See also Robinson, 268 Ga. at 748 (2) (b). Moreover,

[e]very negligence case must be judged by its own facts. Where it is alleged that due to one or a combination of circumstances a hazard, although otherwise patent, was not seen or noticed by the plaintiff because its construction or maintenance created an optical illusion which made it appear that such hazard did not in fact exist, it is usually a jury question, unless this court can say as a matter of law that such combination of facts as alleged could not create the sensory impression alleged, whether the maintenance of the premises in the manner alleged constitutes negligence.

Butts v. Academy of Beauty, Inc., 117 Ga. App. 222, 223 (3) (160 SE2d 222) (1968) (finding complaint stated cause of action in response to general demurrer). Taking into account all the circumstances in this case, we cannot conclude, as a matter of law, that Pinder failed to exercise ordinary care for her own safety.

In reaching this conclusion, we are mindful that where a case involves allegedly dangerous static conditions,

the rule is well established that the basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.

(Citation omitted.) Brewer v. Atlanta South 75, Inc., 288 Ga. App. 809, 810 (655 SE2d 631) (2007). Accordingly,

a claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom.

(Citation and punctuation omitted.) Perkins, 305 Ga. App. at 128.

But here, no evidence exists that Pinder actually negotiated either the ramp or the parking bumper on her way into the KFC, and Pinder’s testimony that she could not detect the height differential from her perspective on the evening of her fall is sufficient to raise a jury issue as to whether she exercised reasonable care for her own safety. See Hagadorn, 267 Ga. App. at 146-147 (reversing grant of summary judgment where plaintiff testified that from her vantage point, she could not see that pavement near culvert sloped dramatically and could not appreciate the danger involved); Myers v. Harris, 257 Ga. App. 286, 287-288 (1) (570 SE2d 600) (2002) (reversing summary judgment where plaintiff testified that furniture in showroom camouflaged the fact floor dropped off onto the ramp below, even where plaintiff had previously negotiated the ramp up to the raised floor); Christensen v. Overseas Partners Capital, Inc., 249 Ga. App. 827, 829-830 (2) (549 SE2d 784) (2001) (reversing grant of summary judgment where plaintiff testified that she could not see sunken condition at the bottom of handicap ramp, even where plaintiff previously walked up the ramp to enter building); Pennington v. Cecil N. Brown Co., 187 Ga. App. 621, 624 (3) (371 SE2d 106) (1988) (evidence of optical illusion caused by ice on a black asphalt surface of a parking lot precluded summary judgment); Shackelford v. DeKalb Farmer’s Market, Inc., 180 Ga. App. 348, 351 (2) (349 SE2d 241) (1986) (reversing summary judgment where evidence showed that rain created optical illusion that seemingly caused parking bumpers to “merge” with the pavement). Compare Gibson v. Symbion, Inc., 277 Ga. App. 721, 721-722 (627 SE2d 84) (2006) (summary judgment appropriate where plaintiff, who fell walking down a handicap ramp, stated that height differential was not visible from her vantage point, but admitted that she did not look down before stepping); Poythress v. Savannah Airport Comm., 229 Ga. App. 303, 305 (2) (494 SE2d 76) (1997) (summary judgment appropriate where plaintiff and her husband never testified that ramp blended into sidewalk, but rather stated that the slope of the ramp was clearly visible); Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 611-612 (2) (376 SE2d 698) (1988) (affirming summary judgment where plaintiff had traversed ramp on numerous occasions and usually had to negotiate around a car that habitually parked on that ramp, but nevertheless chose to traverse when lighting conditions were “darker than usual”).

Decided March 24, 2014.

David M. Conner, for appellant.

Brennan, Harris & Rominger, G. Mason White, James D. Kreyenbuhl, Oliver Maner, I. Gregory Hodges, George T. Major, Jr., Francisco Gonzalez-Burgos, for appellee.

Judgment reversed.

Dillard, J., concurs. Andrews, P. J., concurs in judgment only.

       Johnny McRorie testified, however, that although it was “just about dark,” it was “lit up good in the parking lot” and you could see where you were going. Jenevive McRorie recalled that it was still daylight when they left the restaurant, and she had no trouble seeing at the time.

       Although Pinder’s knee was bleeding, bruised, and swollen, her primary injury was to her ankle, which required a visit to the emergency room that night and subsequent surgeries and physical therapy.

       The parking lot was reconfigured as a part of this renovation, and the handicap ramp and the parking bumper no longer exist.

       In addition to owning the Property, H & H was the franchisee for the KFC franchise on the Property.

       The company’s insurance company conducted periodic safety inspections.

       One shift supervisor, however, recalled hearing one or two regular customers comment that although no problem existed in walking up the ramp if an individual watched where he was going, “that little lip [or curb at the top of the ramp]... sometimes may possibly grab somebody [, that is, snag a foot or something].” He described these comments as mere “concerns,” because if the customers had made a complaint, he would have had to report it and he made no reports. The shift supervisor could not recall, however, whether these comments were made before or after Pinder’s fall.

       Pinder was questioned as follows:
      Q: Was there anything obstructing your view in any way if you had looked down?...
      A: It wasn’t — no, there was nothing obstructing my view. ... I mean, other than the vehicle [that] was parked up here, you know.
      Q: Well, did the parked vehicle obstruct your view of where you were walking?
      A: No, sir. When you’re walking towards that ramp, it looks like it is all flushed together. .. .
      Q: Did you ever look at the spot where you put your foot before you put your foot there?
      A: I looked and it looked flush and that’s when I put my foot there.

       We note that the record contains no evidence that any lights in the area were not working, so we must consider the amount of lighting to be a static condition.

       Moreover, even if Pinder had walked up the ramp on her way into the KFC, a question of fact would still remain as to whether she could have detected the change in elevation at the point she stepped off the sidewalk, given her testimony regarding the optical illusion that made it appear that the place she stepped was flush with the sidewalk. See Myers v. Harris, 257 Ga. App. 286, 287-288 (1) (570 SE2d 600) (2002); Christensen v. Overseas Partners Capital, Inc., 249 Ga. App. 827, 829-830 (2) (549 SE2d 784) (2001); Shackelford v. DeKalb Farmer’s Market, Inc., 180 Ga. App. 348, 351 (2) (349 SE2d 241) (1986).


author: Andrews, Presiding Judge.

text:
    A13A1995.
    MULTIBANK 2009-1 RES-ADC VENTURE, LLC v. SAVANNAH RIVER CLUB, LLC et al.
    (756 SE2d 739)
   Andrews, Presiding Judge.

Multibank 2009-1 RES-ADC Venture, LLC (“Multibank”) first filed the underlying complaint for breach of promissory note and guaranty agreements against Savannah River Club, LLC, Gerard M. Koehn, Steven L. Stamm, John Visser, Frank Montagna, Goldridge Group, LLP, and MV Developments (collectively “SRC”) in the United States District Court for the Northern District of Georgia and later filed a suggestion of lack of jurisdiction in that court. The district court concluded that it lacked subject matter jurisdiction and dismissed the case without prejudice. Multibank refiled its complaint in the Superior Court of Gwinnett County. The Gwinnett County trial court thereafter granted Multibank’s motion for summary judgment on its claims for breach of promissory note and guaranty agreements, dismissed SRC’s counterclaim for setoff recoupment of damages, and denied Multibank’s motion for summary judgment on SRC’s counterclaim for OCGA § 13-6-11 bad faith attorney fees in the federal litigation of the case.

Multibank appeals from that portion of the trial court’s order denyingit summary judgment as to SRC’s counterclaim for OCGA § 13-6-11 attorney fees. Pertinently, Multibank argues that fees expended in a prior litigation are not recoverable under OCGA § 13-6-11. We agree. It is well settled that “a party cannot recover fees under authority of OCGA § 13-6-11 to the extent that the fees are expended in a prior legal proceeding.” In re Estate of Tapley, 312 Ga. App. 234, 237-238 (4) (718 SE2d 92) (2011). Here, the federal case was dismissed and re-filed in superior court. There was no remand.

Decided March 24, 2014.

Schulten, Ward & Turner, Kevin L. Ward, J. Zachary Zimmerman, for appellant.

McGee & Oxford, James J. Brissette, for appellees.

Judgment reversed.

Dillard and McMillian, JJ., concur.