author: McMlLLIAN, Judge. MILLER, Presiding Judge,

text:
    A16A1103.
    DANIELS v. THE STATE.
    (795 SE2d 94)
   McMlLLIAN, Judge.

Marquise Markel Daniels was convicted as a party to the crimes of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony in connection with the armed robbery of a convenience store. He appeals following the denial of his motion for new trial, as amended, arguing in his sole enumeration of error that the evidence was insufficient to sustain his convictions. As more fully set forth below, we now affirm.

Properly construed to support the jury’s verdict, Brown v. State, 291 Ga. 750, 752 (1) (733 SE2d 300) (2012), Quincy Driskell, Daniels’ alleged accomplice, testified that on October 8, 2013, Daniels conceived a plan to rob Nick & Sonny’s convenience store, which Daniels believed would be the “easiest target” because he was a “regular” customer in the store and knew the person that worked there. Driskell said the plan was for Daniels to buy a “single” cigarette, and when the clerk opened the cash register, Driskell would draw a gun on the clerk and reach in and grab money out of the register.

Driskell testified that they first went to Daniels’ mother’s house, which was near the store, and then they walked to the store from there. He said as they walked to the store Daniels handed him a mask and a gun to use during the robbery As seen from the store surveillance video, which was played for the jury at trial, Daniels entered the store first and then Driskell walked in almost immediately behind him, positioning himself near the open side of the counter where the cash register was located while Daniels walked around to the front of the counter. The store clerk, who was standing in the back of the store adjusting merchandise when Daniels and Driskell entered, walked up the aisle past Driskell, who turned his face away from the clerk. After the clerk walked behind the counter, Daniels held up one finger to indicate he wanted one cigarette, and the clerk handed him a cigarette and picked up his money off the counter. The clerk then moved back to the cash register and opened it, at which point Driskell, who had placed a mask over his face, walked behind the counter, displayed a gun, and reached toward the register. As shown on the video, Daniels remained leaning on the counter watching from just a few feet away as Driskell brandished the gun and reached his hand toward the register. Daniels then held up his hands and ran out of the store, and Driskell finished grabbing the money and ran out of the store about six seconds later. A witness who lived across from the convenience store testified that he observed the men run out of the store, and that he saw the first man run out and then another man run out behind him “[a]t the most” ten seconds later, and that the men were running “one behind the other,” and in the same direction.

According to Driskell, he and Daniels ran to the woods, where he gave Daniels the money and Daniels covered the gun and mask with leaves and “stuff,” and then they went together to Daniels’ mother’s house. Daniels went inside to ask his mother to give him a ride home, and his mother testified at trial that he told her then that there had been a robbery at the store. Daniels’ mother testified that she did not see Driskell inside her house, but when she went outside to give Daniels a ride, Daniels and Driskell were on the porch together and that Driskell, whom she knew from the neighborhood, asked her if she would also give him a ride. Daniels’ mother testified she dropped off both Driskell and her son at a stop sign located at Maple Heights, where she said Daniels lived with his wife.

Several days after the robbery, Daniels’ mother went to the police station and viewed the surveillance video, explaining that she came forward because she heard there was a reward and wanted to help out the convenience store clerk, who was her friend. The mother identified Driskell as the robber but did not initially tell police that her son was the other person in the video. However, when police began investigating Driskell, they saw that Daniels and he were Facebook friends, and they called Daniels’ mother and asked her to bring him in so they could talk to him. Police then questioned Daniels, and that interview was admitted into evidence and played for the jury at trial. For the entire first hour of the interview, Daniels steadfastly and vehemently denied that he knew who robbed the store and that he knew anyone named Quincy Driskell. However, Daniels eventually admitted that he knew Driskell, although he continued to deny any involvement in the robbery.

Police stopped their interview with Daniels and questioned his mother again about why she did not tell them that her son was the other person shown on the video. During that second interview, the mother also told police for the first time that Driskell had come to her house after the robbery and that she had given Driskell and Daniels a ride to Maple Heights. Police then talked to Daniels again, and he admitted that Driskell was at his mother’s house that night and that she gave them both a ride and dropped them off together at Maple Heights. However, Daniels continued to steadfastly deny to police that he had anything to do with the robbery

Daniels testified in his own defense at trial and admitted that he had known Driskell since approximately 2012. He said he spoke to Driskell as he walked by him on the way into the store but maintained that he was not involved in the robbery and said he had no idea Driskell was going to rob the store. He also testified he did not know why Driskell went to his mother’s house after the robbery, except to opine that maybe Driskell wanted to implicate them in the crime as retribution because Daniels’ mother had rebuffed Driskell’s romantic advances. When asked why he lied to police for over an hour during his interview, he explained that he did not want to be a snitch and that he was scared, but he stated that he decided to tell the truth because he did not want to get into trouble for something he did not do. Based on this and other evidence presented at trial, the jury found Daniels guilty as a party to the crime of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony

Daniels’ sole contention on appeal is that the accomplice’s testimony was not sufficiently corroborated. It is true that under Georgia law, a felony conviction cannot be based solely on the uncorroborated testimony of an accomplice. Cisneros v. State, 299 Ga. 841, 844 (1) (b) (792 SE2d 326) (2016); OCGA § 24-14-8. But

sufficient corroborating evidence may be circumstantial, it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged. It must, however, be independent of the accomplice testimony and must directly connect the defendant with the crime, or lead to the inference that he is guilty.

(Citation and punctuation omitted; emphasis supplied.) Threatt v. State, 293 Ga. 549, 551 (1) (748 SE2d 400) (2013). And “evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.” (Citations and punctuation omitted.) Cisneros, 299 Ga. at 845 (1) (b). See Stanbury v. State, 299 Ga. 125, 128 (1) (786 SE2d 672) (2016); Mitchell v. State, 279 Ga. 158, 159-60 (1) (611 SE2d 15) (2005). Further, our law does not require corroboration of every particular of an accomplice’s testimony or that the corroborating evidence match the testimony of the accomplice in every detail. E.g., Threatt, 293 Ga. at 552 (1); Mitchell, 279 Ga. at 159 (1).

Here, Daniels and Driskell entered the store together; Daniels watched as Driskell brandished a gun at the clerk and reached toward the cash drawer; a witness observed the accomplice and Daniels come running out of the store within seconds of each other and continue running in the same direction; they both ran to Daniels’ mother’s house where they caught a ride together; and they both exited Daniels’ mother’s car at the same location. In addition to the inference the jury was allowed to draw from this evidence, the jury was further authorized to consider that Daniels lied to police for over an hour about knowing Driskell and being able to identify the robber, and even after admitting knowing it was Driskell who robbed the store, he continued to withhold the fact that he had seen Driskell again after the crime. E.g., Threatt, 293 Ga. at 551 (1) (defendant’s “demonstrably false statements” to police were corroborating).

It was for the jury to decide the credibility of the witnesses and whether the accomplice’s testimony was sufficiently corroborated, and, as noted above, it was not necessary that each particular of the accomplice’s testimony was corroborated or that the jury determine that the corroborating evidence standing alone was sufficient to convict Daniels. Cisneros, 299 Ga. at 845 (1) (b) (even modus operandi evidence may, by itself, be sufficient to corroborate an accomplice’s testimony identifying defendant as a participant in the crime); Rutledge v. State, 298 Ga. 37, 40 (1) (779 SE2d 275) (2015) (reiterating that slight evidence identifying the accused as a participant in the crime is all that is necessary). Our review shows that the evidence outlined above and other evidence presented at trial was sufficient to authorize Daniels’ conviction as a party to the crimes charged. Accordingly, he is not entitled to reversal on this basis.

Judgment affirmed.

Ellington, P. J., Dillard, Branch, Mercier and Peterson, JJ., concur. Miller, P. J., Phipps, P. J., and McFadden, J., dissent.

MILLER, Presiding Judge,

dissenting.

The right to a trial by jury is a hallmark of our criminal justice system in America. For this reason, we are reluctant to interfere with a jury’s verdict except in those limited circumstances in which the State has not proven the elements of the offenses for which the defendant is charged. Here, Daniels was charged as a party to a crime, and it is well established under Georgia law that a defendant cannot be convicted as a party to a crime based solely on the uncorroborated testimony of an accomplice. Threatt v. State, 293 Ga. 549, 551 (1) (748 SE2d 400) (2013). After having thoroughly reviewed the record in this case, it is clear that the State has not presented any independent evidence to corroborate the accomplice’s testimony that Daniels orchestrated, assisted, or otherwise participated in the robbery Mere presence alone is not sufficient. Therefore, under the current status of the law, the question of Daniels’s guilt should not have been submitted to the jury Accordingly, I respectfully dissent.

A person may be charged as a party to the crime “only if he . . . [ijntentionally advises, encourages, hires, counsels, or procures another to commit the crime.” OCGA § 16-2-20 (b) (4); see also Hunt v. State, 244 Ga. App. 578, 580 (536 SE2d 251) (2000). Moreover,

[t]o sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime or lead to the inference that he is guilty

(Footnote omitted; emphasis supplied.) Chandler v. State, 311 Ga. App. 86, 87 (1) (714 SE2d 597) (2011). Although corroborating evidence “may be circumstantial [and] it may be slight,” evidence that only corroborates the timeline and details of the crimes is not sufficient. Taylor v. State, 297 Ga. 132, 134 (2) (772 SE2d 630) (2015); Shumake v. State, 159 Ga. App. 141, 142 (1) (a) (282 SE2d 756) (1981).

The evidence here showed that Daniels entered the convenience store to buy one cigarette. About ten seconds later, Driskell entered. While Daniels and the cashier were talking at the register, Driskell pulled his mask over his face, pulled out a gun, and pointed it at the cashier. Daniels put his hands in the air and ran from the store. Driskell followed, about seven seconds later. Notably, an eyewitness who observed the men running down the street testified that they did not appear to be running together. When police interviewed Daniels, they did not consider him to be a suspect and in fact did not consider him to be a suspect even after he made inconsistent statements about knowing Driskell during the interview.

Driskell’s testimony was the only evidence that Daniels planned the robbery, provided the weapon and mask, or disposed of those items in the woods after the robbery At most, the independent evidence corroborates the chronology and details of the crimes Driskell committed, but none of it shows Dan iels’s participation as opposed to his mere presence. Taylor, supra, 297 Ga. at 134 (2); see also Nix v. State, 133 Ga.App. 417, 419 (211 SE2d 26) (1974) (defendant’s actions corroborated accomplice’s testimony as to chronology of events, but did not directly or indirectly substantiate defendant’s guilt).

Here, there is no independent corroborating evidence and therefore the issue of Daniels’s guilt should not have been presented to a jury. Hill v. State, 236 Ga. 831, 833-834 (225 SE2d 281) (1976) (reversing convictions that were based on accomplice’s testimony because “corroborating evidence must do more than merely cast on the defendant a grave suspicion of guilt”) (citations omitted); Gilmore v. State, 315 Ga. App. 85, 91-92 (1) (d) (726 SE2d 584) (2012) (co-defendant’s uncorroborated testimony that defendant was involved in home invasions was insufficient to sustain conviction); Black v. State, 155 Ga. App. 798 (272 SE2d 762) (1980) (reversing conviction where no evidence corroborated accomplice’s testimony that defendant was involved in burglary). Instead, in this case, the trial court should have granted Daniels’s motion for a directed verdict when it was clear at the close of the State’s case that there was no independent corroborating evidence to establish that Daniels was a party to the crimes.

Accordingly, this Court should reverse Daniels’s convictions. I am authorized to state that Presiding Judge Phipps and Judge McFadden join in this dissent.

Decided November 18, 2016

Reconsideration dismissed December 13, 2016.

Debra K. Jefferson, for appellant.

Layla H. Zon, District Attorney, Randal M. McGinley, Patrick A. Najjar, Assistant District Attorneys, for appellee.

       Driskell testified that Daniels wanted Driskell to rob the store because Driskell owed Daniels rent money, but Daniels, his wife, and his mother denied that Driskell lived with Daniels. A forensic psychologist testified that Driskell had an IQ of 71 and had been diagnosed as borderline intellectual functioning, and his aunt testified that he was easily influenced and likely to do what others told him to do.

       When defense counsel attempted to elicit testimony on cross-examination that the second man was not “right behind” the first man, the witness responded, “[n]o, it was right behind each other like — you know, like they came out at the same time or nothing [sic].”

       The gun and mask were never recovered. Driskell testified that he did not tell police about leaving the gun and mask in the woods when he was arrested several months after the crime. Daniels was not arrested until almost five months after the crime, and the lead investigator testified he did not search Daniels’ home.

       This section replaced OCGA § 24-4-8 and has been given the same meaning. Cisneros, 299 Ga. at 844 (1) (b).

       It is possible that Daniels’s conduct after the robbery would have supported a conviction as an accomplice after the fact, but he was not charged with that crime.

       The Supreme Court of Georgia’s recent decision in Cisneros v. State, 299 Ga. 841 (792 SE2d 326) (2016), does not require a different conclusion. In Cisneros, independent evidence from the modus operandi of several burglaries, as well as testimony from the others involved, corroborated the accomplice’s testimony. Here there is no such independent corroborating evidence.


source: Caselaw Access Project

author: DOYLE, Chief Judge. PETERSON, Judge, MILLER, Presiding Judge, BARNES, Presiding Judge,

license: Public Domain

text:
    A16A1090.
    GEORGE v. HERCULES REAL ESTATE SERVICES, INC.
    (795 SE2d 81)
   DOYLE, Chief Judge.

Derrick George filed a premises liability action against Hercules Real Estate Services, Inc. (“Hercules”), the manager of the apartment complex in which George lived when he was shot by unknown assailants during a home invasion. George asserted claims for negligence, nuisance, and punitive damages. Hercules answered and filed a counterclaim for unpaid rent and other fees. The trial court granted summary judgment to Hercules as to all of George’s claims and as to Hercules’s counterclaim, and George appeals. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant 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.

So viewed, the record shows that George moved into an apartment in The Villas at Lakewood in November 2010. On June 11, 2011, while he was not home, George’s apartment was burglarized between the hours of midnight and 2:00 a.m. In response to the burglary, Hercules repaired George’s damaged front door and installed a metal burglar guard, which made the door more secure when locked, but also made it difficult to engage the deadbolt. The apartment complex also had an alarm system that was monitored 24 hours per day and included a front-door panic button in each unit, including George’s. According to George, after the burglary, he obtained a shotgun and kept it beside the front door for protection because he believed the complex was not safe.

In the early morning hours of July 27, 2011, George was home with a friend when someone knocked on his door. George turned on the front porch light, looked through the peephole, and asked who was there; he could see only the silhouette of a single individual, and he could not hear the person on the other side of the door. Although he was not expecting anyone at the time, George opened the door, propping his foot against it out of concern for his safety. When George opened the door, a second individual emerged, and he and the first man tried to force their way into George’s apartment. George pushed back and tried to lock the door, but he was unable to engage the deadbolt. George grabbed his shotgun and fired at the intruders. The intruders fired back, shooting George four times. The police never apprehended or identified the intruders. After the shooting, George did not return to his apartment nor did he pay rent for the apartment.

Hercules was aware of prior crimes at the apartment complex and employed a private security service during day hours. Prior to the shooting, in May 2011, Hercules’s on-site manager requested that the corporate office provide additional security for the complex, but Hercules did not comply with the request.

George sued Hercules, asserting claims for negligence, nuisance, and punitive damages. With regard to his negligence claims, he alleged that Hercules failed to (1) keep the premises in proper repair; (2) provide adequate security; and (3) keep the premises safe. Hercules asserted a counterclaim against George for unpaid rent and moved for summary judgment on all claims. The trial court granted summary judgment to Hercules on all claims, and this appeal followed.

1. George’s claims. Because the record is devoid of any competent evidence to create a question of fact on the element of causation, Hercules was entitled to summary judgment as to George’s claims.

(a) Negligence. There are four elements to a negligence claim in Georgia:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.
On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

As the movant, Hercules offered evidence that as part of a $7 million renovation of the property, it installed a monitored security alarm equipped with a panic button in each unit; added exterior security cameras around the property; employed security guards in varying hours seven days a week; provided a twenty-four-hour phone number for maintenance and security issues; added an entry gate and landscaping to prevent unauthorized entry; and worked with the resident community, neighborhood watch, and police department to increase involvement and presence in the complex. Hercules also pointed to the lack of expert or other testimony in the record that any additional security measures would have prevented George from being shot after voluntarily opening his door to a stranger after midnight. Stated another way, Hercules argued that there is a lack of evidence on causation — that there is no evidence that its alleged failure to provide adequate security caused George’s injuries.

In response, George points only to the testimony of Celina Nyack, Hercules’s community manager, and Joe Bulat, the owner of the security company. While George states that the security company recommended additional security measures, a review of Bulat’s deposition belies this assertion. When asked whether he made any recommendations, Bulat replied: “I would have liked to have had more hours, of course, but if I said, do you want to increase the hours? No, they had a budget.”

Similarly, George claimed that Hercules’s on-site manager “requested more security and surveillance because the tenants were ‘at the mercy of criminal activity on the property.’ ” A closer look at the e-mail written by Nyack shows that on May 25, 2011, she requested more security on weekend days and weekday evenings “[d]ue to the school year ending and the weather inclement [sic].” Nonetheless, there is no evidence or testimony that reducing or increasing security would have affected the crime rate in general or the particular crime that injured George. Rather, the evidence showed that security patrol hours had remained consistent, and the internal incident reports show that crime varied from month to month and year to year.

This evidence is insufficient to create a question of fact on whether George’s injuries were proximately caused by any act or omission of Hercules. For example, in Johns v. Housing Auth. for the City of Douglas, a tenant was raped after an assailant entered her apartment through a window in which she had placed cardboard to fill a gap between the window and an air conditioning unit she installed. There was no evidence indicating how the assailant entered the complex or whether he was a resident.

To support its motion for summary judgment, the [defendant] Housing Authority pointed to: the lack of evidence showing that any of the allegedly unsafe conditions presented by its failure to repair the fence or increase common area lighting or security patrols proximately caused the attack; evidence that [the plaintiff] had equal or superior knowledge of the allegedly unsafe conditions; and evidence that the unsafe condition that actually allowed the assailant to enter her apartment (i.e., the manner in which she installed the air conditioner window unit) was created by [the plaintiff].

The Court pretermitted the issues of superior knowledge and foreseeability of the attack and assumed that the Housing Authority breached its duty by not making the repairs or improvements suggested by the plaintiff. Nonetheless, we affirmed the grant of summary judgment to the Housing Authority because there was no evidence that any such breach caused the plaintiff’s injuries:

[A] jury would have to speculate that improvements to security patrols and lighting, and a repair to the fence, would have prevented the assailant from approaching [the plaintiff’s] apartment unit and reaching through her window to gain entry into her apartment. Speculation that raises a mere conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.

Here, a request for more security based upon school ending for the summer and inclement weather, along with a comment that the property along the fence lines and behind the buildings was at the mercy of criminals, coupled with the security company’s desire for more hours (though without any request for more), simply does not provide evidence that Hercules proximately caused George’s injuries sustained when he was shot after voluntarily opening his door to an unknown person after midnight. Because George failed to meet his burden of demonstrating a triable issue of fact as to proximate cause, summary judgment in favor of Hercules on his negligence claim is proper.

(b) Nuisance. Proximate cause is also an essential element in a nuisance claim. As we held in Division 1 (a), George failed to meet his burden of demonstrating a triable issue of fact on this issue; therefore summary judgment in favor of Hercules on his nuisance claim is proper.

(c) Punitive damages. “A claim for punitive damages is derivative in nature and will not lie in the absence of a finding of compensatory damages on an underlying claim.” Because George’s negligence and nuisance claims fail, his claim for punitive damages also fails.

2. Hercules’s counterclaim. George contends that the trial court erred by granting summary judgment to Hercules on its counterclaim that he breached the lease agreement to pay rent after he was injured. We disagree.

In response to Hercules’s motion, George argued that questions of material fact exist as to whether Hercules’s actions and failure to secure his apartment from criminals relieved him of his contractual obligation to pay past-due rent. Specifically, George argued that he should be excused from paying his rent because Hercules’s alleged failure to provide adequate security or to adequately repair the lock on his door (1) breached an implied covenant in the lease, and/or (2) constituted constructive eviction. For the reasons that follow, neither of these defenses relieved George of his contractual obligation to pay rent.

(a) Breach of implied covenant of quiet enjoyment. In support of his argument, George cited to this Court’s decision in Jaraysi v. Sebastian, arguing that Hercules’s actions and failures “constitute^] a breach of the covenant of quiet enjoyment.” This argument is without merit.

(i) “A general warranty of title against the claims of all persons includes three separate covenants: (1) a covenant of a right to sell, (2) a covenant of quiet enjoyment, and (3) a covenant of freedom from encumbrances.” “To constitute a breach of the covenant of warranty, or for quiet enjoyment, an eviction or equivalent disturbance by title paramount must occur, and the mere existence of an outstanding paramount title will not constitute a breach.” Further, “[a] covenant for quiet enjoyment of the premises is necessarily implied in every lease and goes to the extent of [representing] that the landlord has a good title and can give a free and unencumbered lease of the premises for the term stipulated.”

Thus, to establish a breach of the covenant of quiet enjoyment, George had the burden to prove that Hercules did not have good title to lease him the premises or that someone else had paramount title. George’s complaints about The Villas, however, do not concern the issue of a paramount title and, therefore, do not implicate the covenant of quiet enjoyment. Accordingly, George’s defense of breach of the implied covenant of quiet enjoyment failed as a matter of law, though for reasons other than those stated by the trial court.

(ii) In granting summary judgment to Hercules on its claim for unpaid rent, the trial court relied on language in this Court’s decision in Jaraysi to conclude that the actions of third-party criminal actors could not support a finding that Hercules breached the covenant of quiet enjoyment and, therefore, did not relieve George of his obligation to pay rent in this case. We recognize the basis for the trial court’s confusion because we have conflated the defenses of breach of the covenant of quiet enjoyment and constructive eviction in our case law, and we take this opportunity to clarify the issue.

The Jaraysi decision, upon which the trial court relied, arose out of a series of cases dating back to a case issued by this Court a century ago — Adair u. Allen. In Adair, this Court addressed the implied covenant of quiet enjoyment in a lease and held that the covenant “does not amount to an undertaking on [the landlord’s] part that the premises leased are suitable or fitted for the particular use for which they are intended by the lessee[.]” This Court then went on to hold that the implied covenant of quiet enjoyment does not apply to a tenant’s claims arising from a nuisance created and maintained by a third party — in that case a co-tenant.

Since 1923, this Court has issued a series of cases that have misinterpreted Adair and have been relied upon for the erroneous proposition that the covenant of quiet enjoyment encompasses non-title based claims, such as the defense of constructive eviction. But as stated above, the covenant of quiet enjoyment applies only to claims arising from a landlord’s title and does not encompass a non-title constructive eviction defense. Thus, Jaraysi, Myung Sung, Rucker, Topualco, Hardwick, Albert Properties, Kulman, Smith, Fein-berg, Parker, and their progeny are disapproved to the extent they can be interpreted to hold otherwise.

(b) Constructive eviction. We turn now to George’s argument that Hercules’s failure to provide adequate security or to properly secure his lock constituted constructive eviction, thereby relieving him of his contractual obligation to pay rent. This argument is also without merit.

A claim for constructive eviction involves the tenantability of leased property and the nature of the repairs required to restore the property to a safe and tenantable condition.

Two essential elements must be shown to establish the defense of constructive eviction. They are: (1) [tjhat the landlord in consequence of his failure to keep the rented building repaired allowed it to deteriorate to such an extent that it had become an unfit place for the [tenant] to carry on the business for which it was rented, and (2) that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant’s business.

In other words, to prove a constructive eviction that excuses the payment of rent, there must be proof of

either an actual expulsion of the tenant, or some act of a grave and permanent character done by the landlord with the intention of depriving the tenant of the [use] of the demised premises. An act may be considered grave in character if it renders the premises untenantable or unfit for the use and benefit of the tenant in accomplishing one or more of the substantial purposes of the lease.

Thus, for George to meet his burden as the nonmovant with regard to his defense of constructive eviction, he was required to identify evidence showing a fact question as to whether Hercules committed some act or omission with regard to the property so “grave in character ... it renders the premises untenantable or unfit for . . . use.” Based on the record before us, George failed to do so. The defense of constructive eviction cannot be premised upon the action of a third party, and there is no evidence that Hercules committed the criminal acts in question. And Hercules’s alleged failure to provide security or to properly repair his lock do not constitute “act[s] of a grave and permanent character” committed with the intention of depriving George of the use of his apartment such “that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption” of George’s activities, nor did they render the apartment uninhabitable.

Accordingly, we affirm the trial court’s grant of summary judgment to Hercules on its counterclaim for unpaid rent.

Judgment affirmed.

Andrews, P. J., Ellington, P. J., Boggs, Ray, Branch, and Rickman, JJ., concur. Dillard, McMillian, Mercier, and Peterson, JJ., concur fully in Division 1 and in judgment only in Division 2. Barnes, P. J., Miller, P. J., Phipps, P. J., andMcFadden, J., dissent to Division 1 and concur fully in Division 2.

PETERSON, Judge,

concurring specially.

I join the majority opinion as to Division 1 in its entirety. For the reasons that follow, I concur in the judgment only as to Division 2 of the majority opinion.

The majority may very well be right that our case law regarding the implied covenant of quiet enjoyment went somewhat awry beginning in 1923. It may also be wrong. But regardless of the merits of that question, the majority’s analysis does not convince me that the subsequent century of precedent must now be set right. The majority ignores stare decisis, which in my view counsels against overruling what, by this time, some might call a venerable principle of Georgia law. Accordingly, I respectfully disagree with the conclusion of Division 2(a)(ii) overruling a near-century of our case law and, thus, cannot join in the analysis that follows it.

“The bench and bar are entitled to rely on long-standing case law,” Norred v. Teaver, 320 Ga. App. 508, 515 (740 SE2d 251) (2013) (Andrews, P. J., concurring), and so it is here. The rule the majority overrules today is long-standing case law. The majority does not attempt to explain why that rule is unworkable, or how the last century of experience has shown it to be unwise. Instead, the majority simply declares that the rule developed in error as though that were the end of the matter. But the principle of stare decisis does not even begin to apply until we have already concluded that a prior decision was wrong. “Indeed, stare decisis has consequence only to the extent it sustains incorrect decisions; correct judgments have no need for that principle to prop them up.” Kimble v. Marvel Entm’t, LLC,_ U. S. _ (135 S. Ct. 2401, 2409, 192 LE2d 463) (2015). For that reason, “it is not alone sufficient that we would decide a case differently now than we did then. To reverse course, we require as well what we have termed a special justification — over and above the belief that the precedent was wrongly decided.” Id. (citations and punctuation omitted).

Our Supreme Court has identified several factors to consider in deciding whether stare decisis counsels in favor of retaining a precedent that differs from what we might hold if approaching the question with a clean slate. These include “(1) the age of the precedent, (2) the reliance interests at stake, (3) the workability of the decision, and, most importantly, (4) the soundness of its reasoning.” Harrison v. McAfee, 338 Ga. App. 393, 401 (2) (c) (788 SE2d 872) (2016) (citing State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010)); see also Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563) (2011) (Blackwell, J., concurring dubitante) (considering other factors). The majority considers nothing beyond the correctness of the long-standing case law it now overrules. At no point in the appellate briefing or oral argument did the parties challenge our precedent in any way (a failure that is itself a factor that we have recognized counsels strongly against overruling, see Benefield, 308 Ga. App. at 613 (Blackwell, J., concurring dubitante)), much less explain why stare decisis does not apply. And my own independent weighing of the applicable factors suggests little reason to overrule anything in this case.

A final consideration also supports my conclusion. Stare decisis applies with the least force to constructions of the United States and Georgia Constitutions. See Smith v. Baptiste, 287 Ga. 23, 30 (694 SE2d 83) (2010) (Nahmias, J., concurring) (stare decisis “is less compelling when . . . the issue is the meaning of a constitutional provision”). “That is because it is much harder for the democratic process to correct or alter [a court’s] interpretation of the Constitution than [its] interpretation of a statute or regulation.” Id. And although stare decisis applies more strongly in cases of statutory construction, see id., faithful adherence to the separation of powers counsels us that it is unwise lightly to persist in erroneous constructions of validly-enacted statutes. See Harrison, 338 Ga. App. at 401-02 (2) (c); cf. Jackson, 287 Ga. at 659 (5) n.8 (it is “perilous to rely heavily on legislative silence and inaction to conclude that a court’s interpretation of a statute is correct”). But here, the precedent we consider has not interpreted the Constitution or a statute; it has instead merely answered questions the General Assembly had not yet addressed. In such a case, separation of powers considerations are at their nadir, leaving stare decisis to operate more forcefully

The trial court faithfully applied long-standing precedents of this Court. I would leave those precedents undisturbed and affirm. For these reasons, I concur in judgment only as to Division 2.

I am authorized to state that Judge Dillard, Judge McMillian, and Judge Mercier join in this special concurrence.

MILLER, Presiding Judge,

concurring in part and dissenting in part.

I must respectfully dissent to Division 1 of the majority’s opinion because there is a genuine issue of material fact for the jury to resolve on the element of causation. Although the trial court found that Hercules breached its duty to George, the trial court’s order clearly made no finding as to causation. Where a jury question remains, summary judgment is improper. Consequently, I would reverse the trial court’s judgment.

George’s apartment complex, The Villas, was infected by rampant crime. These crimes included a homicide, a sexual assault, armed robberies, and 66 break-ins to both occupied and vacant units. Hercules’s management was aware of each of these crimes at the apartment complex, yet it still failed to notify the tenants that many of these crimes occurred.

Moreover, despite these numerous crimes, Hercules’s management refused to employ security guards after hours or overnight, when the crimes were most prevalent, and it even rejected its own on-site manager’s specific request for additional security In fact, Hercules’s management failed to tell its tenants that the security guards who were present were hired only for the purpose of protecting the property in units that were being refurbished, not for the purpose of protecting tenants and guests.

Although the apartment complex was a “gated community,” the front “gate” was only a 1x6 inch board, which did not deter foot traffic. Moreover, even though Hercules’s management knew that the property adjacent to the apartment complex had a high crime rate, and that the areas behind the complex and along its fence line were “at the mercy” of criminals, the management only sporadically repaired the frequent holes in the fence. Importantly, the night before George’s home invasion, an armed robber fled through a hole in the fence after robbing someone, and a police report completed after George was shot showed that the suspects fled on foot toward a road adjacent to one of the holes in the fence. Although there were security cameras on the property, the cameras were positioned too high to distinguish faces or license plates in the recordings, and for reasons unknown Hercules had rejected a former property manager’s request to fix that problem.

Given the evidence in the record that Hercules’s management knew that its security measures had failed to remedy the rampant crime at the apartment complex, this Court should not conclude that this is a “clear and indisputable case” that removes the issue of causation from the jury’s purview. See Woodbury v. Whitmire, 246 Ga. 349, 350 (1) (271 SE2d 491) (1980). Accordingly, the majority’s conclusion that summary judgment is proper on this ground as to George’s claims for negligence, nuisance, and punitive damages is legal error.

This conclusion does not end this Court’s inquiry, however, because the trial court based its ruling on its erroneous finding that George assumed the risk of harm as a matter of law. With regard to assumption of the risk, Georgia law is clear that “[i]f the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” OCGA § 51-11-7.

The important focus in this analysis is the scope of George’s knowledge of the risk he faced at the apartment complex. For George’s recovery to be barred, he must have had knowledge of “the specific, particular risk of harm associated with the activity or condition” that proximately caused his injury. (Citation and punctuation omitted; emphasis supplied.) Monitronics Intl. v. Veasley, 323 Ga. App. 126, 139 (4) (746 SE2d 793) (2013). As with causation, assumption of risk is ordinarily a question for the jury. Desai v. Silver Dollar City, 229 Ga. App. 160, 166 (5) (493 SE2d 540) (1997).

Here, the trial court erred in finding that George assumed the risk of harm as a matter of law. Certainly, a jury could find that George’s decision to open the door that night bars his claims; however, a jury could also find that George did not appreciate the specific risk of armed home invaders when he decided to answer the door to his own home in response to someone knocking. Thus, whether George assumed the risk of harm is for the jury to decide.

The trial court’s reliance on Landings Assn. v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012) is misplaced because that case is entirely distinguishable on its facts. In Landings, our Supreme Court relied on the plaintiff’s knowledge that alligators are dangerous to conclude that the plaintiff knowingly assumed the risk of harm by walking around areas she knew were inhabited by wild alligators. Id.

Here, George was injured when he opened the door to his own home and was shot by unknown criminals. To conclude that George assumed the specific risk of harm would establish a standard in which a person opening the door to his own home is, as a matter of law, at the mercy of whomever lurks on the other side. This is not the current state of the law in Georgia, and thus the trial court erred in granting summary judgment on this ground.

For the above reasons, the trial court’s order must be reversed. Accordingly, I respectfully dissent to Division 1 of the majority opinion.

I am authorized to state that Presiding Judge Barnes, Presiding Judge Phipps, and Judge McFadden join in this dissent.

BARNES, Presiding Judge,

concurring in part and dissenting in part.

I concur fully and completely with the majority in Division 2, disapproving the cases conflating the doctrines of quiet enjoyment and constructive eviction but finding no constructive eviction in this case. I fully join Presiding Judge Miller’s well-stated dissent to Division 1, as I am also unprepared to hold as a matter of law that opening the door at night automatically absolves a landlord of all responsibility for its failure to stem a pervasive crime wave or to effect adequate repairs. I write to further emphasize that, in addition to evidence that the management company breached its duty of ordinary care with its tepid response to the rampant crime wave on its property, a jury could also find that it breached its duty by making a substandard repair to George’s door after burglars kicked it in.

Decided November 18, 2016

Reconsideration denied December 15, 2016

Deitch & Rogers, Gilbert H. Deitch, Andrew T. Rogers, Kara E. Phillips, W. Michael DAntignac; David H. Glass, for appellant.

Insley & Race, Brynda R. Insley, James P. Myers, Gregory Y. Shin, for appellee.

George presented evidence that the shoddy repairs made it difficult to lock the door and prevented him from throwing the deadbolt to secure the door against the invaders, who then pushed their way inside and shot him. Photographs of the door and strike plate taken by the police after the home invasion reveal just how badly the repair was made. The strike plate was crooked, was missing screws, and partially blocked the hole in the doorframe into which the deadbolt should seat. The deadbolt was the only lock on George’s front door; the knob was for a passage door, “like a closet,” and did not have a lock built into it.

Expert testimony is not required to determine whether the burglar wrap was installed in a way that could make it difficult for the bolt to seat into the doorframe. Determining whether the hole into which the deadbolt should seat is misaligned or partially blocked by a metal wrap is akin to a child determining whether a round block fits into a square hole. See Demarest v. Moore, 201 Ga. App. 90, 91-92 (410 SE2d 191) (1991) (alleged statement by police at local meeting that deadbolt was insufficient to prevent break-ins unless the hardware was secured to a structural member of doorframe with 3 1/2" screws was sufficient to create jury question where the deadbolt to plaintiff’s burgled apartment was attached with 3/8" and 1/2" screws). Whether that repair — which caused the deadbolt to become misaligned with the hole into which it should seat — caused or contributed to George’s inability to close and bar the door against the armed intruders is a question well within the ken of an ordinary juror.

For these reasons, as well as those expressed in Presiding Judge Miller’s dissent, I dissent in part to the majority opinion.

I am authorized to state that Presiding Judge Miller, Presiding Judge Phipps, and Judge McFadden join in this dissent.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The summary of incident reports between 2009 and 2011 showed the incidents involved mostly break-ins or unlawful entries to both occupied and empty units. Incident reports also showed armed robberies, a shooting by a tenant’s grandson with no injuries, and “the improper handling of a female sexually.” In 2009, a nonresident’s body was found dead at the gate with a gunshot wound. The incident report summary also showed that there was no reported crime between August 5, 2008, and December 19, 2008, or between August 9, 2010, and April 20, 2011.

       Although the trial court granted summary judgment to Hercules on separate grounds, Hercules raised the lack of proximate cause as its lead argument in support of its motion for summary judgment. We review the grant or denial of summary judgment de novo, and “a judgment right for any reason will be affirmed.” Cieplinski v. Caldwell Elec. Contractors, 280 Ga. App. 267, 276 (633 SE2d 646) (2006).

       (Punctuation omitted.) The Med. Center Hosp. Auth. v. Cavender, 331 Ga. App. 469, 472 (1) (771 SE2d 153) (2015). See also Johns v. Housing Auth. for the City of Douglas, 297 Ga. App. 869, 870-871 (678 SE2d 571) (2009).

       (Punctuation omitted.) Mitchell v. Austin, 261 Ga. App. 585, 587 (583 SE2d 249) (2003), quoting Shadburn v. Whitlow, 243 Ga. App. 555, 556-557 (533 SE2d 765) (2000). If the moving party discharges its burden by pointing out an absence of evidence to support the nonmoving party’s case, “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), citing OCGA § 9-11-56 (e).

       George’s allegations are that Hercules should have provided more security patrols and failed to properly repair the lock on his door after it was kicked in during a previous burglary. George concedes, however, that the lock was functional after it was repaired, contending instead that the door was tighter and more difficult to close after the repair. His reliance on the maintenance supervisor’s admission that the entire front door should have been replaced is unpersuasive because the supervisor testified that he would have replaced the door “[bjecause it’s ugly.” More importantly, the door was locked when George’s assailants knocked on it, and with knowledge that it was more difficult to lock, he voluntarily opened it, rendering moot the question of the functionality of the lock. Any suggestion by George that the tightness resulting from the lock repair prevented him from re-locking it while in a scuffle with armed men forcing entry into his home is simply too speculative to raise a triable issue of fact.

       The other two record citations George provided to support his contention that the security company recommended more hours do not address this issue.

       Nyack’s e-mail reads in its entirety as follows:
      Good Afternoon All[,] Due to school year ending and the weather inclement, I want to be able to have more coverage either with additional security or more hours. The current schedule is as follows[:] Mon- Thursday -lpm-ll[;] Friday-Sunday- 8pm-6am or 7am[.] Ilona or Joe please correct me if I’m wrong[.]
      My concern is the weekends during the day and the weekdays in the evenings.
      Also, we have roughly 6-10 cameras still down and also the cameras that are working need[ ] to be repositioned and refocused[.] Due to my observations and feed back from residents and staff we have reach[ed] the conclusion that the above is necessary to better reduce liabilities on the property. We need to step up security and surveillance. We are limited right now to foot patrol and observation and along the fence line and behind buildings, we are at the mercy of criminal activity on the property.

       For example, as stated previously, in 2008, there was no reported crime between August 5 and December 19. Similarly, there was no reported crime for almost nine months between August 9, 2010, and April 20, 2011.

       See Johns, 297 Ga. App. at 870-871; Fallon v. Metro. Life Ins. Co., 238 Ga. App. 156, 158-159 (2) (518 SE2d 170) (1999) (physical precedent only) (“expert’s opinion that security personnel would have a ‘strong deterrent effect on the type of crime that occurred’ ” was “a conclusory statement” insufficient to create an issue of fact on causation); Post Properties v. Doe, 230 Ga. App. 34, 38-39 (495 SE2d 573) (1997) (physical precedent only) (to conclude that a witness’s contentions regarding insufficient security at an apartment complex, without any evidence of how the plaintiff’s assailant accessed the complex, demonstrated a lack of causation that “would require a jury to engage in pure speculation and guesswork. This is neither required nor allowed in this state”); Collins v. Shepherd, 212 Ga. App. 54, 56 (2) (441 SE2d 458) (1994) (physical precedent only) (“Plaintiff presents no evidence to show that defendant could have prevented the incident from occurring with a different security system in place. A landowner does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required.”) (punctuation omitted). Cf. The Bethany Group v. Grobman, 315 Ga. App. 298, 302 (1) (b) (727 SE2d 147) (2012) (affirming denial of summary judgment because there was a question of fact regarding proximate cause based upon evidence of the landlord’s knowledge of prior armed robberies and the testimony of the security company manager “that such incidents increased after [the landlord] reduced its security”). But see FPI Atlanta v. Seaton, 240 Ga.App. 880, 884 (2) (524 SE2d 524) (1999) (physical precedent only) (finding proximate cause due to the foreseeability of the criminal act without analyzing whether a jury question was raised as to causation specifically).

       297 Ga. App. at 869.

       See id.

       See id.

       Id. at 870.

       (Emphasis supplied.) Id. at 871-872. The Court also noted that the intruder was able to enter the plaintiff’s apartment because she left a rear window unsecured, not because the Housing Authority failed to improve security and lighting. See id. at 871. Similarly, in the instant case, the assailants were able to enter George’s apartment because he unlocked and opened the door for them.

        Toyo Tire North America Mfg. v. Davis, 299 Ga. 155, 158 (2) (787 SE2d 171) (2016) (“Causation is an essential element of nuisance. . . .”) (punctuation omitted).

       (Punctuation omitted.) Ratliff v. McDonald, 326 Ga. App. 306, 314 (2) (b) (756 SE2d 569) (2014), quoting!). G. Jenkins Homes v. Wood, 261 Ga. App. 322, 325 (3) (582 SE2d 478) (2003).

       George did not assert either a defense of constructive eviction or breach of the implied covenant of quiet enjoyment in his answer to Hercules’s counterclaim for unpaid rent.

       We note that George’s defenses arise out of cont ract claims, which are entirely separate from any tort claims that may have arisen out of the same conduct.

       George did not argue that Hercules’s actions and inactions constituted a breach of an express contractual provision. And there is no evidence that Hercules breached an express term of the lease such that George was relieved of his obligation to pay rent. To the contrary, the lease did not require Hercules to provide security:

        [Hercules] does not offer or provide security or law enforcemen t services for resident’s protection or protection of resident⅛ personal property. [George] agrees to look solely to public law enforcement, emergency services, or fire services for security services or protection. [George] acknowledges that he has an obligation to exercise due care for his own safety and welfare and that [Hercules] is not liable for the criminal acts of other persons.
      (Emphasis supplied.)

       318 Ga. App. 469 (733 SE2d 785) (2012) (involving a commercial lease and an express contract of quiet enjoyment).

        McMurray v. Housworth, 282 Ga. App. 280, 285 (2) (638 SE2d 421) (2006). See also OCGA § 44-5-62 (“A general warranty of title against the claims of all persons includes covenants of a right to sell, of quiet enjoyment, and of freedom from encumbrances.”); Whited v. Issenberg, 261 Ga. App. 787, 788 (584 SE2d 59) (2003); White & Corbitt v. Stewart & Co., 131 Ga. 460, 461 (62 SE 590) (1908).

       (Citations, punctuation and emphasis omitted.) Whited, 261 Ga. App. at 788.

       (Citation and punctuation omitted; emphasis supplied.) Dwyer v. McCoy, 236 Ga. App. 326, 329 (5) (512 SE2d 70) (1999).

       See Cieplinski, 280 Ga. App. at 276 (“a judgment right for any reason will be affirmed”).

       18 Ga. App. 636 (89 SE 1099) (1916).

       (Emphasis supplied.) Id. at 636 (2).

       See id. at 637 (6).

       See Jaraysi, 318 Ga.App. at 469; Myung Sung Presbyterian Church v. North American Assn. of Slavic Churches & Ministries, 291 Ga.App. 808, 812-813 (3) (662 SE2d 745) (2008); Rucker v. Wynn, 212 Ga.App. 69, 70-71 (1) (441 SE2d 417) (1994); Topvalco, Inc. v. Garner, 210 Ga. App. 358, 361 (2) (436 SE2d 25) (1993); Hardwick, Cook & Co. v. 3379 Peachtree, 184 Ga.App. 822, 825 (3) (363 SE2d 31) (1987); Albert Properties v. Watkins, 143 Ga. App. 184, 185 (1) (237 SE2d 670) (1977); Kulman v. Sulcer, 99 Ga.App. 28, 29-30 (1) (107 SE2d 674) (1959); Smith v. Hightower, 80 Ga.App. 293, 296-297 (2) (55 SE2d 872) (1949); Feinberg v. Sutker, 35 Ga.App. 505, 506 (1) (134 SE 173) (1926); Parker v. Munn Sign & Advertising Co., 29 Ga.App. 420 (115 SE 926) (1923).

        See Adair, 18 Ga. App. at 636; OCGA § 44-5-62.

       See Overstreet v. Rhodes, 213 Ga. 181, 183-184 (97 SE2d 561) (1957).

       (Punctuationomitted.) Jenkins v. Brice, 231 Ga.App. 843, 844 (1) (499 SE2d 734) (1998). See also Ellis v. Hartford Run Apts., 335 Ga.App. 118, 125 (6) (779 SE2d 103) (2015) (physical precedent only) (holding that the trial court erred by granting summary judgment to landlords on their counterclaim for rent because factual question remained regarding whether tenants were constructively evicted).

       (Punctuation and footnotes omitted.) Jenkins, 231 Ga. App. at 844 (1).

       Id.

       See, e.g., Lumpkin v. Provident Loan Society, 15 Ga. App. 816, 820-821 (84 SE 216) (1915).

        Jenkins, 231 Ga. App. at 844 (1).

       Id.

       See, e.g., Fleming & Bowles v. King, 100 Ga. 449, 452-453 (28 SE 239) (1897). See also OCGA § 44-7-15 (“The destruction of a tenement by fire or the loss of possession by any casualty not caused by the landlord or from a defect of his title shall not abate the rent contracted to be paid.”). To the extent that the door lock needed further repair, George’s remedy under the terms of the lease was to request repairs or to undertake them himself after a reasonable time. See Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748, 749 (1) (278 SE2d 448) (1981); OCGA § § 44-7-13 and 44-7-14 (requiring landlord to keep a premises in repair and limiting a landlord’s liability in tort to certain damages).

       See Cieplinski, 280 Ga. App. at 276.

       The majority cites only two authorities for its new definition of the implied covenant of quiet enjoyment: Adair v. Allen, 18 Ga. App. 636 (89 SE 1099) (1916), and OCGA § 44-5-62. See maj. op. at 851. Neither authority provides much support for the majority’s position. Adairs holding was simply that actions of third parties do not create liability for a landlord under the implied covenant of quiet enjoyment, Adair, 18 Ga. App. at 636-37, which was precisely the conclusion of our Court in Jaraysi and the trial court here. And the statute does not address the question at all; although recognizing the existence of the covenant of quiet enjoyment, nothing in the statutory language defines the scope of that covenant. This statute has remained substantially unchanged throughout the many decades of the very case law the majority now seeks to change, and at no point has the General Assembly seen fit to correct our course. (This is not to say that the General Assembly’s silence should be read as acquiescence in our erroneous interpretation of a statute; indeed, our case law on this point has not “interpreted” OCGA § 44-5-62 at all.)

       To be fair, the word “overruled” is not one the majority employs. Instead, using language we normally employ to signal a clarification of ambiguous case law, it says only that our cases are “disapproved to the extent they can be interpreted to hold” that the covenant of quiet enjoyment “encompass[es] a non-title constructive eviction defense.” Maj. op. at 851. But the cases do in fact hold precisely that, and do so clearly. See, e.g., Myung Sung Presbyterian Church, Inc. v. N. Am. Ass’n of Slavic Churches & Ministries, Inc., 291 Ga. App. 808, 812-13 (3) (662 SE2d 745) (2008) (lessor breached covenant of quiet enjoyment when it “substantially interfered with the lessee’s right to use and enjoyment of the premises” by failing to apply for a zoning variance renewal). And thus the majority is in fact overruling these decisions, not merely clarifying them.

       As I use it in this opinion, the term “stare decisis” refers exclusively to principles that apply to our exercise of discretion in adhering to or overruling our own prior precedent when we have come to disagree with that prior precedent. This term should not be understood to include what we have occasionally referred to as “vertical stare decisis.” See, e.g., Whorton v. State, 321 Ga. App. 335, 339 (1) (741 SE2d 653) (2013) (“vertical stare decisis dictates that we faithfully adhere to the precedents established by the Supreme Court of Georgia”) (footnote omitted). Vertical stare decisis is simply another way of articulating the command — foundational to the rule of law — that we must follow the decisions of the Supreme Court of the United States and the Supreme Court of Georgia even when our own prior precedent may be inconsistent. This principle is mandatory and does not involve any discretion on our part. See also Ga. Const., Art. VI, Sec. VI, Para. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”). Our own internal rules require us to employ the same process — the participation of all active and non-disqualified judges of our Court — to overrule our prior precedent, whether we do so because (1) our prior precedent is now inconsistent with binding decisions of a higher court or (2) we have merely come to view that prior precedent as wrongly decided. It is only in the latter case that we have the option of retaining “incorrect” precedent, and so only in the latter case are considerations of stare decisis relevant.


author: BARNES, Presiding Judge.

text:
    A16A1362, A16A1363.
    RAHEEM v. THE STATE (two cases).
    (794 SE2d 418)
   BARNES, Presiding Judge.

In these companion appeals, the trial court granted Haneef Abdul Raheem’s motion for out-of-time appeal of his 1981 conviction for motor vehicle theft and his 1982 burglary conviction. Following our review and finding that the record does not establish that he was fully advised of his rights under Boykin v. Alabama, 395 U. S. 238, 243-244 (89 SCt 1709, 23 LE2d 274) (1969), we reverse the convictions.

In Raheem v. State, 333 Ga. App. 821 (777 SE2d 496) (2015) (.Raheem I), Raheem appealed from the trial court’s denial of his motion for out-of-time appeal of his 1982 conviction for burglary, 1981 conviction for motor vehicle theft, and 1985 conviction for armed robbery. The relevant facts as presented in Raheem I establish that

[i]n 1981, Raheem pleaded guilty to motor-vehicle theft and hit-and-run. The next year, he pleaded guilty to burglary, and in 1985, to armed robbery. Decades later, in 2013, Raheem filed a pro se motion for an out-of-time appeal from all of these convictions, arguing that his guilty pleas were involuntary because, in each plea proceeding, he was not advised of his right to a jury trial, his right to confront the witnesses against him, or his right against self-incrimination. Raheem further argued that the essential elements of each of his offenses were not explained to him prior to entering his guilty pleas. . . . Raheem contended] that he [was] entitled to an out-of-time appeal from each conviction because his guilty pleas were not knowing and voluntary and neither the trial court nor his trial counsel advised him of his limited appellate rights.
The State moved to dismiss Raheem’s motion, arguing that, as to at least two of his cases, the plea transcripts show that his guilty pleas were indeed freely and voluntarily entered. The trial court denied the State’s motion, noting that there were no transcripts of any of Raheem’s plea hearings. Raheem then amended his motion for an out-of-time appeal, reiterating the arguments he made in his original motion and asserting that his failure to file a timely appeal in each case was due to ineffective assistance of counsel, rather than any fault of his own. Thereafter, Raheem was appointed counsel to represent him at the hearing on his motion.

(Footnote omitted.) 333 Ga. App. at 822.

Following a hearing on his motion for an out-of-time appeal, the trial court found that in the 1981 and 1982 cases, “Raheem had established a legitimate issue for appeal because there was no evidence that, during the plea proceedings, he was informed of his right to confront his accusers or his right against compulsory self-incrimination,” but found that the record demonstrated that the guilty plea in the 1985 case was knowing and voluntary Raheem I, 333 Ga. App. at 822-823. The trial court then

found that Raheem was not entitled to an out-of-time appeal from any of his convictions because he had not shown that he was prejudiced . . . [because] there was no evidence that the result ofthe proceedings would have been different, if Raheem had taken his case to trial rather than pleading guilty

Id. at 822-823.

Raheem appealed the denial of his motion. In Raheem I, we affirmed the trial court’s denial of Raheem’s motion for an out-of-time appeal ofthe 1985 armed robbery conviction. 333 Ga.App.at 827-828 (2). We further agreed with the trial court that the record demonstrated that during Raheem’s 1981 and 1982 plea proceedings, he was only advised of one of the three constitutional rights he was waiving by pleading guilty pursuant to Boykin, namely, the right to a jury trial, but not informed of his right against self-incrimination or the right to confront his accusers. Id. at 824-825 (1). However, we reversed the trial court’s denial of Raheem’s motion to file an out-of-time appeal as to the 1981 and 1982 convictions, upon finding that the trial court had denied the motion “without resolving the determinative issue of whether the failure to pursue a timely direct appeal was attributable to trial counsel or to Raheem himself.” (Punctuation and footnote omitted.) Id. at 826 (1). We “remand[ed] the case with direction that the court conduct the requisite inquiry and make findings [as to the 1981 and 1982 convictions] regarding who ultimately bore the responsibility for Raheem’s failure to file a timely appeal.” Id.

Upon remand, and following a hearing, the trial court found that Raheem’s failure to file a timely appeal of the 1981 and 1982 convictions was attributable to his attorney’s failure to advise him that he had the right to appeal and that he had a legitimate issue for appeal, given that the record failed to establish that he was informed of all three Boykin rights. Subsequently, the trial court granted Raheem’s motion for an out-of-time appeal of the two convictions.

1. Although the State contends that the trial court erred in granting Raheem’s motion for an out-of-time appeal, the merits of the order on Raheem’s motion for an out-of-time appeal are not before us. Tyner v. State, 289 Ga. 592, 594 (3) (714 SE2d 577) (2011), overruled in part on other grounds, Lejeune v. McLaughlin, 296 Ga. 291, 297 (2) (766 SE2d 803) (2014). There is “no basis for the State to appeal the order granting the out-of-time appeal or to file a cross-appeal in this criminal case, and [in this case] it did neither. See OCGA § 5-7-1 (limiting the matters the State may appeal in criminal cases and not authorizing the State to cross-appeal).” Tyner, 289 Ga. at 594 (3).

2. Raheem raises identical arguments on appeal in Case Nos. A16A1362 and A16A1363. He maintains that the guilty pleas in his 1981 and 1982 convictions were not knowingly and voluntarily entered because he was not informed of the constitutional rights required under Boykin before he entered his plea. Raheem asserts that the State did not meet its burden of establishing by the record that he was advised of the three Boykin rights he was waiving by pleading guilty

The entry of a guilty plea involves the waiver of three federal constitutional rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. It is the duty of a trial court to establish that the defendant understands the constitutional rights being waived, and the record must reveal the defendant’s waiver of those constitutional rights. . . . [A]ny defendant who pleads guilty will be able to secure a reversal of his conviction if the record does not show that he was specifically advised of each of the three Boykin rights and he properly presents the issue to a reviewing court. Nevertheless, our Supreme Court has recognized that nothing in Boykin requires the State during a guilty plea proceeding to use any precisely-defined language or “magic words.”

(Citations and punctuation omitted.) Childs v. State, 311 Ga. App. 891, 891-892 (1) (717 SE2d 509) (2011). The State bears the burden on direct review to establish that the plea was knowingly and voluntarily entered. King v. State, 270 Ga. 367, 369 (1) (509 SE2d 32) (1998).

The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

(Citation and punctuation omitted.) Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999).

Here, there is no transcript of the plea hearing of the 1981 and 1982 cases. In both cases, there is a pre-printed form included in the record labeled “Transcript.” The only Boykin right acknowledged on the form is the right to a jury trial. Trial counsel for the 1982 plea testified that “the Boykin rights weren’t specifically considered at that time because the court system was unaware of it or didn’t use the Boykin case in their plea process.” The State concedes that the record on its face does not demonstrate that Raheem was advised of and waived all three Boykin rights, but asserts that any such deficiency was harmless because Raheem never claimed that he would have chosen to go to trial instead of taking a plea, had he been fully advised of all of his Boykin rights.

Regardless of the practices in place at that time,

the requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. Rather, the procedural element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily Thus, Boykin imposed a constitutional record-keeping requirement on the states if they hoped to insulate state guilty pleas from future attacks on federal constitutional grounds.

Decided November 16, 2016

Reconsiderations denied December 16, 2016.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

(Punctuation and footnotes omitted; emphasis in original.) Wiley v. Miles, 282 Ga. 573, 575-576 (2) (652 SE2d 562) (2007) (establishing that Boykin applies to guilty pleas entered after June 2, 1969).

Our appellate courts have “interpreted advice and waiver of the three Boykin rights as a strict constitutional requirement, with reversal the automatic consequence if any deviation is found to have occurred.” Tyner, 289 Ga. at 595 (4). Here it is undisputed that the record does not disclose that Raheem was advised of his right against self-incrimination or the right to confront witnesses.

Accordingly, because Raheem was not fully advised of the rights he was waiving by pleading guilty in the 1981 and 1982 cases, the record does not substantiate that his pleas were knowing and voluntary Thus, his guilty pleas are invalid, his 1981 and 1982 convictions are reversed, and both cases are remanded to the trial court for further proceedings consistent with this decision. See Vera v. State, 329 Ga. App. 177 (764 SE2d 427) (2014).

Judgments reversed.

Doyle, C. J., Andrews, P. J., Miller, P. J., Ellington, P J., Phipps, P J., Dillard, McFadden, Boggs, Ray, Branch, McMillian and Peterson, JJ., concur. Rickman and Mercier, JJ., concur in judgment only.

       “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” (Citation and punctuation omitted.) Simmons v. State, 276 Ga. 525, 526 (579 SE2d 735) (2003). “The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.” (Citations omitted.) Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001).

       We disapprove of the following cases to the extent that they could be relied upon to stand for the proposition that the State can timely appeal from an order granting an out-of-time appeal: Fineza v. State, 255 Ga. App. 835 (567 SE2d 17) (2002); Towns v. State, 228 Ga. App. 267 (491 SE2d 497) (1997).

       The State asserts this argument within the context of its claim that trial counsel was not ineffective and thus that the motion for the out-of-time appeals should not have been granted. As noted in Division 1, any challenge to that order is not before us on review.

       Per the holding in Lejeune, 296 Ga. 291, the burden now shifts in habeas corpus cases to the defendant to prove that his guilty plea was not knowing and voluntary, “[b]ut there is nothing in Lejeune remotely suggesting that the State no longer has the burden of demonstrating, in the context of a direct appeal from a judgment of conviction, that a defendant’s guilty plea was voluntary, knowing, and intelligent.”Raheem I, 333 Ga. App. at 821 (1), n. 13.


author: Peterson, Judge.

text:
    A16A1735.
    CULLARA v. BUILDING & EARTH SCIENCES, INC.
    (794 SE2d 665)
   Peterson, Judge.

An employee of Building & Earth Sciences, Inc. (“BES”) drove a company vehicle while drunk and collided with Frank Cullara’s vehicle. Cullara sued the now-former employee and BES. The trial court granted summary judgment to BES on Cullara’s negligent entrustment claim, concluding that BES had no knowledge that the former employee had a pattern of reckless driving because the evidence showed the company’s knowledge of only one prior DUI conviction. Cullara appeals and argues that in concluding that BES did not have knowledge of the former employee’s additional prior DUI convictions, the trial court erred by reviewing the record evidence in the light most favorable to BES and resolved conflicting evidence in BES’s favor. Cullara also argues that the court failed to consider whether BES voluntarily assumed a duty to investigate the former employee’s driving background. We reverse the trial court’s grant of summary judgment because there is evidence creating genuine issues of material fact as to whether BES had knowledge of the former employee’s multiple DUI convictions that could sustain a negligent entrustment claim.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. We review a trial court’s grant of summary judgment de novo, construing the record and all reasonable inferences in favor of the nonmoving party.

Mastec N.Am., Inc. v. Sandford, 330 Ga.App. 250, 250 (765 SE2d 420) (2014) (citation omitted).

So viewed, the record shows that BES hired David Scott in January 2012. On his employment application, Scott listed a 1998 conviction for possession of cocaine, but he did not list any of his multiple DUI convictions. Scott admitted in his deposition that he had more than four DUI convictions.

Scott deposed that he was interviewed by two BES employees prior to being hired and that he told the interviewers “everything” about his history with drugs and alcohol. When specifically asked at his deposition whether he told one of the BES interviewers about his prior DUI convictions, Scott answered, “Yes, sir. He knew.” When asked how many he reported, Scott responded, “I did not specify.” Scott said he believed he told the interviewers about his 2002 DUI conviction and that he had many offenses and a “checkered past,” but he was unsure if he specifically told them about his other DUI convictions. When pressed on the issue, Scott said he was positive BES knew about his background because, although he did not specifically remember discussing his numerous DUI convictions, he told them he had prior violations and discussed with them the nature of whatever “motor vehicle check” they would conduct. Scott further deposed that he told the interviewers that his license had been reinstated in 2010 after it was suspended following his 2002 DUI conviction. He further testified that, although he could not recollect the entire interview, he was honest with the interviewers and, therefore, must have told them that his license had been suspended on numerous occasions. Scott also reported to the interviewers that, at the time of his interview, he was living in a transitional center and was in a substance abuse recovery program.

Prior to hiring Scott, BES conducted a background investigation with Scott’s consent. The investigation reviewed Scott’s Social Security information, his federal criminal history, his credit and employment history, and his motor vehicle record. BES’s current human resources director, who was not the individual who conducted the background check on Scott, testified that Scott’s file contained a motor vehicle report showing a clean driving history. The motor vehicle report, however, searched only for violations in the preceding three years. The human resources director testified that Scott’s personnel file did not contain a criminal history report, but that the company usually received this report as part of its background investigation, and it was unknown why the criminal history report was missing from the file. BES subsequently supplemented the record with the complete background report, and the federal criminal history section did not reveal any convictions.

About eight months after he was hired, Scott asked his supervisor for permission to use a company truck to move a mattress set into a new home. Although a company policy prohibited the use of company vehicles for personal use, a BES supervisor gave Scott permission to use the vehicle to move personal items. Scott picked up the truck on a Saturday morning after drinking two beers. Scott consumed several more alcoholic beverages at lunch before colliding with Cullara. Scott was arrested for and later pleaded guilty to driving under the influence, as well as failure to maintain lane. BES terminated Scott.

Cullara filed suit against Scott and BES. Cullara alleged that BES negligently entrusted the company vehicle to Scott because it allowed Scott to use the vehicle despite having knowledge of Scott’s extensive history of driving under the influence. In its motion for summary judgment, BES argued that it was not on notice that Scott was a dangerous driver because he listed only one criminal violation on his application — the 1998 conviction for possession of cocaine — and, even assuming Scott reported multiple DUI convictions during his interview, BES was entitled to rely on the criminal history check that did not reveal any prior convictions. The trial court granted summary judgment to BES, finding that Scott testified that he told the company only about his 1998 cocaine possession conviction and his 2002 DUI conviction, and further background checks revealed no federal criminal record. The trial court concluded that Scott’s 2002 DUI conviction was insufficient to establish a pattern of reckless driving. This appeal ensued.

Cullara argues that the trial court erred in granting summary judgment to BES on his negligent entrustment claim because the court disregarded favorable portions of Scott’s conflicting testimony about BE S’s knowledge of his DUI convictions and improperly inferred that Scott reported only one DUI conviction. We agree.

“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.” Bashlor v. Walker, 303 Ga. App. 478, 480 (1) (a) (693 SE2d 858) (2010) (punctuation and footnote omitted); see also Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989). “[A] plaintiff in a negligent entrustment action is not limited to showing actual knowledge of the entruster inasmuch as that plaintiff may show actual knowledge of a pattern of reckless driving or facts from which such knowledge could reasonably be inferred.” CGL Facility Mgmt., LLC v. Wiley, 328 Ga. App. 727, 732 (2) (b) (760 SE2d 251) (2014) (citation and punctuation omitted).

In this case, Cullara presented evidence sufficient to defeat BES’s motion for summary judgment. Scott deposed that a BES supervisor gave him permission to use a company vehicle for his personal use, thus establishing for summary judgment purposes that BES entrusted him with a company vehicle. There are questions of material fact as to whether BES was negligent in doing so.

We acknowledge, as the trial court did, that Scott “repeatedly testified that he could not recall whether he told the BES employees about any other criminal history beyond his 1998 cocaine possession conviction and his 2002 DUI (and possibly the contemporaneous marijuana possession).” During several parts of his deposition, Scott stated that he did not specifically remember discussing his numerous DUI convictions with BES employees and was unsure whether he told the company about other DUI convictions aside from his 2002 conviction. Although the trial court found that Scott disclosed his checkered criminal background and that his license had been suspended several times, it ruled that these disclosures were “neutral” and “not affirmative evidence that Mr. Scott advised BES during the interview that he had multiple DUIs.”

In reaching this conclusion, the trial court failed to construe the “neutral” evidence in Cullara’s favor and it ignored other, less ambiguous testimony on the issue. The court concluded that it was not clear how many DUI convictions Scott had, at the same time acknowledging Scott’s testimony that he had more than four DUI convictions at the time of his interview. Scott further testified that, in addition to BES having been made aware of his 1998 cocaine possession conviction by virtue of his disclosure on his employment application, BES “knew everything” and “was totally informed” about his prior history with drugs and alcohol, which could reasonably be construed to include his prior DUI convictions. Scott also was asked during his deposition, “So did you tell [one of the interviewers] about your prior convictions for driving under the influence?” Scott answered, “Yes, sir. He knew.” In response to another question about whether he told BES about his numerous DUIs, Scott testified that he told the BES employees that he had prior violations.

Although Scott may have at times been unclear about what he reported to BES, the testimony cited above constitutes affirmative evidence that Scott told BES about his multiple DUI violations and was thus sufficient to preclude the grant of summary judgment to BES. To defeat a summary judgment motion, the nonmoving party need not present conclusive proof to rebut the movant’s evidence, but must only produce or point to specific evidence, even slight, giving rise to a triable issue of material fact. See Lee v. SunTrust Bank, 314 Ga. App. 63, 63 (722 SE2d 884) (2012); see also Dalton v. City of Marietta, 280 Ga. App. 202, 203 (633 SE2d 552) (2006) (“Even slight evidence will be sufficient to satisfy the plaintiff’s burden of production of some evidence on a motion for summary judgment [.] ”) (citation and punctuation omitted). Scott’s testimony created a material issue of fact as to whether BES had knowledge of Scott’s history of DUI convictions.

BES argues that it was entitled to summary judgment under the reasoning of Patterson v. Southeastern Newspapers, Inc., 243 Ga. App. 241, 244-46 (2) (533 SE2d 119) (2000), in which we held that an employer was entitled to summary judgment on a negligent hiring and retention claim notwithstanding the employee-driver’s testimony that he had numerous driving violations prior to and after his hiring. We concluded in Patterson that the employer did not negligently hire the driver because there was no reason the employer knew or should have known of the driver’s bad driving record where the copy obtained by the employer did not reveal infractions for the preceding three years, and the plaintiff did not present any evidence that conducting a more thorough search at the time of the hiring would have revealed the driving infractions. Id. at 245-46 (2). We also concluded that the plaintiff’s negligent retention claim failed because the driver did not inform the employer about a DUI citation received after his hiring, there was no evidence that the employer did not follow its procedures for regularly checking employees’ driving records, and the plaintiff did not suggest a different procedure would have revealed that the driver’s license had been suspended as a result of receiving the DUI citation 11 days before the accident. Id.

Patterson does not apply here. Although both Scott and the driver in Patterson testified about having numerous driving violations, there is no indication that the driver in Patterson actually told the employer about any of his driving violations. Indeed, our opinion in that case reveals that the driver withheld information from his employer. See Patterson, 243 Ga. App. at 245 (2) (“[The driver] did not inform the newspaper of [the DUI] incident despite agreeing at the time of his employment to tell of any ‘major citations . . . (i.e., suspended license, canceled insurance).’ ”). In this case, however, Scott testified that he told BES about his multiple DUI convictions. To the extent BES suggests, as it did below, that it was entitled to ignore Scott’s statements or his written application and could instead rely solely on a criminal background check, BES points to no authority for this proposition. As it noted in its brief in support of its motion for summary judgment, the issue is whether BES knew or should have known that Scott was a high-risk driver. Nothing in Patterson can be read as providing that the evidence that may establish this element is limited to an employee’s driving record or criminal history report. Accordingly, we reverse the grant of summary judgment to BES.

Decided December 8, 2016.

Scheer, Montgomery & Call, Steven E. Scheer, Craig A. Call, for appellant.

Dodson & Associates, Vanice H. Sikes, Jr., for appellee.

Judgment reversed.

Dillard, P. J., and Reese, J., concur.

       There is no explanation why BES did not order a state criminal background report.

       In light of this conclusion, we need not consider Cullara’s remaining arguments.


text:
    A16A2184.
    RICHARDSON v. MAPOLES.
    (794 SE2d 669)
   Peterson, Judge.

Plaintiff Rebecca Joy Richardson, who fell while trying to enter a Chick-fil-A restaurant on Christmas Eve in 2012, appeals the trial court’s grant of summary judgment to Greg Mapoles, the operator of the restaurant. Richardson argues that the trial court erred by concluding that she failed to offer sufficient evidence of causation. Because the evidence taken in the light most favorable to Richardson shows no more than a mere possibility that a hazard on the restaurant’s property caused her fall, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-ll-56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. See Home Builders Ass’n of Savannah v. Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, Richardson visited a Chick-fil-A restaurant midday on a rainy December 24, 2012. Richardson attempted to enter the restaurant at an entry point that included two sets of doors. She passed through the outer set of doors easily but found herself unable to open the left-hand door at the interior set of doors.

As Richardson struggled with that door, she fell. Richardson testified:

Q: Okay. Were you able to eventually open that second set of doors?
A: No, no. I kept pushing, and it just — my feet just slipped out from under me, and I just fell. And then when I went to get up like you normally do, I could not move. I just could not move at all.
Q: Okay All right. Do you remember kind of what sort of movement your feet made when you ended up on the floor?
A: No. I just was pushing on the door, and the next thing I remember right now is just falling.

Richardson testified that she did not recall seeing any water on the floor at the time she tried to open the door. Richardson recalled sitting on the floor “for a long time” after she fell and recalled that the floor was damp, “because it had been raining.” The floor where Richardson landed was covered in some sort of rug or mat. But Richardson also testified that she could not recall whether the rug or mat that she sat on after she fell was damp, because “[a]ll [she] was thinking about was pain.”

Before the close of Richardson’s deposition, defense counsel pressed her repeatedly about the cause of her fall:

Q: Okay. All right. And you don’t know kind of what happened with your feet at that point; right?
A: No. I just know I fell and was sitting, sort of sitting.
Q: But you don’t know exactly what caused you to fall; right?
A: I kept pushing on the door, and it was just so frustrating because, I mean, I was literally just rattling it trying to get it to open, and it just would not open.
Q: But you don’t know exactly, like I said, what caused you to fall; right?
[Objection.]
A: I don’t know how to answer that. I just — it happened so fast. Just like — I just remember pushing on the door, and the next thing I remember is just sitting there.
Q: . . . Okay
A: I don’t remember the time between the fall, you know, when I was pushing and falling.
Q: So you don’t remember exactly what happened?
A: No. Well —
Q: You were pushing on the door, and then you’re on the ground. That’s what you remember?
A: Yeah, uh-huh.

Richardson was injured in the fall and transported to a hospital by ambulance. She sued Mapoles, the operator of the Chick-fil-A where she fell, seeking damages for her injuries. Mapoles filed an affidavit saying that he was aware of no problems with the restaurant’s entry doors or any repairs done on the doors related to their ability to open and close. He moved for summary judgment, arguing that Richardson’s claims failed because she had not shown what caused her to fall. The trial court granted Mapoles’ motion for summary judgment, concluding that Richardson had failed to point to evidence sufficient to create a genuine issue of material fact that any negligence by Mapoles caused her injuries.

In her sole enumeration of error, Richardson argues that the trial court failed to construe all reasonable inferences to be drawn from the evidence in her favor, leading to the court’s incorrect finding that she failed to offer sufficient evidence of causation to defeat Mapoles’ motion for summary judgment. The trial court did not err.

Our Supreme Court has explained that

“routine” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.

Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997). But a plaintiff’s mere speculation about causation is not enough to prevent summary judgment.

Causation is always an essential element in slip or trip and fall cases. Where the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven. A mere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture and the probabilities are at best evenly balanced it is appropriate for the court to grant summary judgment to the defendant.

Pennington v. WJL, LLC, 263 Ga. App. 758, 760 (1) (589 SE2d 259) (2003) (footnotes omitted).

We have consistently reversed trial courts that have refused to grant summary judgment to the defense in cases in which the plaintiffs were unable to point to more than mere speculation as to what caused their fall. See, e.g., Canaan Land Props., Inc. v. Herrington, 330 Ga. App. 17, 19-21 (1) (766 SE2d 493) (2014) (plaintiff’s testimony that hole in parking lot “had to be” the cause of his shopping cart veering and tripping him shows “mere possibility” that the divot caused his fall and thus defense was entitled to summary judgment); Bryan Bank & Trust v. Steele, 326 Ga. App. 13, 14-16 (1) (755 SE2d 828) (2014) (summary judgment warranted where plaintiff testified that it was not clear to her whether her foot caught on something and she could not say for certain that flower bed fencing she blamed for the fall was on the sidewalk before she fell); see also Imperial Invs. Doraville, Inc. v. Childers, 303 Ga. App. 490, 493 (1) (693 SE2d 834) (2010) (trial court erred in denying defense motion for directed verdict where plaintiff testified that he did not know what he tripped over). We have reversed denials of summary judgment even when there was evidence of the presence of a hazard that clearly might cause a fall in certain circumstances. For example, in Willingham Loan & Realty Co. v. Washington, 311 Ga. App. 535 (716 SE2d 585) (2011), a witness to the plaintiff’s fall deposed that he noticed ice on a metal exterior staircase at the time the plaintiff fell down it. Id. at 535. But the witness could not say whether the ice caused the fall. Id. The plaintiff deposed that she had previously complained to building management about broken and loose steps but could say only that it was “possible” that the condition of the stairs caused the fall and testified at one point, “I don’t know what caused me to fall.” Id. at 535-36. In the light of that plaintiff’s testimony that she did not know what caused her to fall, and her failure to offer any other evidence of causation, we reversed the denial of summary judgment to the defendant apartment complex owners, saying “the evidence of record raises a mere possibility that a defect in the stairs caused [the plaintiff]’s fall[.]” Id. at 536.

The evidence here raises no more than a mere possibility that a hazard on the defendant’s property caused Richardson’s fall. Richardson argues that a defect in the restaurant door caused her to be unable to open it, which in turn caused her to fall on the wet floor. Construing the evidence in her favor, as we must, we assume that (1) the door was not operating properly; and (2) the rug or mat on which she fell was damp. But Richardson has pointed to no evidence establishing a causal connection between any problem with the door and her fall. Although Richardson argues that her testimony shows that she fell because of her struggle with the door, all that her testimony shows is that she fell while she struggled with the door. Additionally, although she testified that the area where she fell was damp, she has put forth no evidence that the rug or mat on which she landed was slippery or somehow caused her fall. Rather than offer testimony explaining how she fell and in particular how any hazard on the defendant’s property caused her fall, Richardson testified that she could not remember exactly what happened when she fell and “d[id]n’t know how to answer” the question of what caused her accident. The record places this case squarely within our cases in which the plaintiff, unable to say for sure what caused his or her accident, cannot maintain a claim.

Decided December 8, 2016.

J. Craig Murphy, for appellant.

Mabry & McClelland, Walter B. McClelland, Lara P. Percifield, for appellee.

Richardson argues that a video provided by Mapoles in discovery creates a genuine issue of material fact precluding summary judgment. The video, apparently taken by some sort of security camera, shows the doorway of the restaurant at the time of the incident. After showing several people enter the store, the video shows Richardson passing through the outer set of doors. The video then appears to have a gap of several seconds, before skipping to an image of Richardson on the floor between the two sets of doors. Richardson suggests that this gap supports her testimony that she had difficulty opening one of the inner doors, creating a question of material fact as to whether the door was defective. But this gap in the video — which the defense notes is consistent with other gaps in the poor-quality tape — tells us nothing about what went on between the time Richardson walked in the outer doors of the restaurant and the time she found herself on the ground. Richardson has never argued that the gap is the result of some improper act of spoliation by the defendant such that it should give rise to some particular adverse inference. The video adds nothing by way of evidence that any hazard on the defendant’s property caused Richardson’s injuries, and it cannot save her claims from summary judgment.

Judgment affirmed.

Dillard, P. J., and Reese, J., concur.