DOYLE, Judge.
Rebecca A. Lore and David Alan Lore filed suit against their homeowners association, the Suwanee Creek Homeowners Association, Inc. ("SCHOA"), alleging claims for nuisance, trespass, and negligence based on water runoff from a SCHOA-owned "Recreation Area" immediately behind their property. The Lores also asserted a personal injury claim based on injuries Rebecca Lore sustained when the ground upon which she was standing collapsed, attributing the collapse to the repeated flooding and storm-water-runoff washing away the earth under what appeared to be solid ground surface. SCHOA moved for summary judgment on all claims. The trial court granted summary judgment as to the Lores' personal injury claims and denied summary judgment as to the remaining claims. The Lores appeal the grant of summary judgment in Case No. A10A0012, and SCHOA appeals the denial of summary judgment in Case No. A10A0013. For reasons that follow, we reverse in both cases.
So viewed, the record shows that SCHOA owns and maintains a large wooded area known as the Recreation Area, which was constructed by Westbrook 23, LLC, the developer for the subdivision, and which abuts the rear of the Lores' property. The Lores' property is downhill from the Recreation Area. The plat for the development denotes a 20-foot "improved ditch" that, according to the Lores' complaint, would direct water runoff through pipes and into a pond and a creek in the Recreation Area; the ditch was designed to ensure that water runoff did not traverse lots in the subdivision, including the Lores' property. According to the complaint,
It is undisputed that the improved ditch was never constructed. According to the Lores, storm water flows through pipes and onto the ground of the Recreation Area, where it then flows directly downhill to the Lores' property before it reenters the Recreational Area and ultimately a pond. The Lores documented 48 instances of storm-water runoff onto their property between June 2004 and October 2007. Mrs. Lore deposed that a majority of the water "is coming specifically from the [SCHOA] property [and] ponding on [the Lores'] property." The Lores made extensive complaints to SCHOA about the water, but they were unavailing. In 2004, Westbrook (the Developer) offered to construct the ditch in exchange for a hold harmless agreement from SCHOA, but SCHOA would not agree.
On October 23, 2006, Mrs. Lore walked onto the Recreation Area to pick up trash. She was at the top of an embankment, looking down, when she squatted and then stood up, "the ground just gave out from underneath [her]," and she then fell, impaling her forearm on a branch. Mrs. Lore's injury occurred "at least [four] feet away from [the] closest edge of [a] sinkhole ..." that the Lores first noticed on June 27, 2004, while they were cleaning their deck.
After the Lores filed suit, SCHOA filed a motion for summary judgment. Following oral argument, the trial court granted summary judgment to SCHOA on the personal injury claim and denied SCHOA's motion for summary judgment as to the Lores' claims for trespass, nuisance, and negligence. This appeal follows.
1. The Lores argue that the trial court erred in granting summary judgment to
Following the seminal Supreme Court decision in Robinson v. Kroger Co.,
(a) SCHOA's Knowledge. Here, although it is undisputed that SCHOA had actual knowledge of the sinkhole in the Recreation Area, there is no evidence that SCHOA had actual knowledge that the ground "at least four feet away" from the sinkhole was unstable and susceptible to collapse. Thus, the Lores must come forward with evidence that SCHOA had constructive knowledge of the hazard.
"An owner/occupier is on constructive notice of what a reasonable inspection would reveal."
Construing the evidence in favor of Mrs. Lore, the evidence that she repeatedly notified SCHOA that there was a sinkhole in the Recreation Area raises a question of fact as to whether SCHOA failed in its duty to conduct a reasonable inspection of the sinkhole and the surrounding area to determine whether it posed a danger to invitees and whether it failed to take reasonable steps to protect invitees from those dangers.
The dissent concludes that neither Lore nor SCHOA made an argument below or on appeal that SCHOA had a duty to inspect the sinkhole, and therefore, we are impermissibly applying the "wrong for any reason rule." We respectfully disagree. The Lores alleged in their complaint that SCHOA breached its duty to maintain the Recreation Area, "thus creating hazardous conditions and other hidden dangers likely to cause bodily harm ..." and that despite Mrs. Lore's repeated notices
In its summary judgment brief to the trial court, SCHOA focused its argument on Mrs. Lore's knowledge, arguably implicitly conceding that it had constructive knowledge of the hazard.
SCHOA raises the issue of constructive knowledge in its appellate brief, ultimately arguing that it is "not at issue here." In the portion of their appellate brief addressing the personal injury claim, the Lores specifically argue that
Finally, in their appellate reply brief, the Lores argue that Ware County v. Medlock
Thus, in light of the aforementioned briefs and pleadings, we conclude that the issue of whether SCHOA had constructive knowledge of the hazards associated with the sinkhole and surrounding areas was raised both before the trial court and on appeal.
(i) SCHOA argues that Mrs. Lore had knowledge of the sinkhole that was equal to or greater than SCHOA's. But "[i]t is a plaintiff's knowledge of the specific hazard which precipitates the ... fall which is determinative, not merely [her] knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which [s]he observes and avoids."
(ii) When determining whether an invitee failed to exercise ordinary care for her personal safety, "`the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.'"
Given the evidence in this case, construed in favor of the Lores, we conclude that the issue of whether Mrs. Lore exercised ordinary care for her own personal safety is a jury question.
For the foregoing reasons, the trial court erred in granting summary judgment to SCHOA on the Lores' personal injury claim.
2. SCHOA contends that the trial court erred in denying its motion for summary judgment as to the Lores' claims for trespass, nuisance, and negligence based on water runoff.
Causation is an essential element of nuisance, trespass, and negligence claims.
Here, pretermitting the efficacy of SCHOA's other defenses, the Lores have failed to demonstrate a causal connection between their damages and any action (or inaction) on the part of SCHOA that artificially increased the water runoff from its upper land to the Lores' lower property or caused the water to concentrate, collect, and discharge on their property in a harmful manner different from that which it would have received if it simply ran down upon it by the laws of gravity. Mrs. Lore's testimony that she observed water "coming specifically from the [SCHOA] property" from pipes is simply insufficient. There is no evidence regarding the amounts or sources of water runoff from the Recreation Area to the Lores' property before the property was developed. And the Lores have presented no testimony, expert or otherwise,
MILLER, C.J., PHIPPS, P.J., JOHNSON, BLACKBURN, and ELLINGTON, JJ., concur.
ANDREWS, P.J., concurs in part and dissents in part.
ANDREWS, Presiding Judge, concurring in part and dissenting in part.
Because Lore was equally aware of the possibility that the ground around the sinkhole could give way and because nowhere, either below or on appeal, is there any argument made of a "duty to inspect" the sinkhole, I respectfully dissent in Case No. A10A0012. I concur in Case No. A10A0013.
In Lore's brief in response to SCHOA's motion for summary judgment, her argument concerning SCHOA's knowledge of the dangerous condition was that SCHOA had knowledge of the problem because she told them about it. Specifically, Lore contended:
This is no argument at all for the proposition that SCHOA had superior knowledge and does not even raise the issue whether SCHOA inspected or should have inspected the sinkhole.
Likewise, at the hearing on SCHOA's motion for summary judgment, Lore's counsel argued:
Thus, at oral argument, Lore made no mention of a duty to inspect because her contention to the trial court was that it was impossible for anyone to know that the ground would give way.
In light of this, the trial court correctly held that because Lore admitted that she had equal to or more knowledge about the hole and the dangerous condition of the property than anyone, and because Lore did not dispute this admission or point to evidence which contradicted this admission, then her knowledge was equal to or greater than that of SCHOA and therefore SCHOA was entitled to summary judgment on Lore's personal injury claim. To reverse the trial court on this issue would be to apply a wrong for any reason rule, which this Court does not do. See Clark Atlanta Univ. v. Williams, 288 Ga.App. 180, 182, 654 S.E.2d 402 (2007) (this Court "must refrain from reversing a ruling on a ground not raised or considered below").
Moreover, both below and on appeal, Lore consistently claimed that the basis of SCHOA's liability was its failure to control the runoff water which caused the problem of the unstable ground. In arguing that SCHOA should not be allowed to disclaim knowledge by "stick[ing] its head in the sand," she never claimed it should have inspected the sinkhole, but rather should have acknowledged the problems caused by the stormwater runoff. Accordingly, the record below shows no allegation of constructive superior knowledge due to SCHOA's failure to inspect the sinkhole. SCHOA was therefore never on notice that it needed to address the issue or to present evidence regarding what an inspection might have revealed about any propensity of the ground around the sinkhole to give way.
SCHOA would be entitled to summary judgment in any event, however, because, as stated above, an inspection would not have given SCHOA any knowledge superior to what Lore had already pointed out and complained about during the course of this dispute, i.e., that the soil was being undermined by the water runoff and this is what caused the sinkhole and, since it was continuing, would cause further collapses in the area. The record also shows that Lore had additional knowledge of the specific danger posed by the area around the sinkhole. Lore testified at her deposition that she had watched the hole for two years and it "tripled in width" since she had been monitoring it.
Therefore, because, as Lore acknowledged, she had more knowledge about the dangerous condition of the sinkhole than anyone, because she knew that the stormwater runoff was causing the ground to become unstable in that area, and because she knew that the ground around the sinkhole was steadily giving way, I cannot agree with the majority's conclusion that "there is no evidence that she