1 See, e. g. , Cmty. Marketpla ce Props. , LLC v . SunTrust Bank , 303 Ga. App. 403, 404 (693 SE2d 602) (2010). FOURTH D IVISION DOYLE , P. J., MILLER and DIL LA RD, JJ.
N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ July 15, 2014



## In the Court of Appeals of Georgia
A14A0425. ROGERS v. WOODRUFF. D ILL ARD , Judge. In this interlocutory appeal, Janice D. R ogers challenges the trial court’s denial of her motion for s ummary ju d gmen t o n Co ry Wo od ruf f’s per so nal -in

jur y cla ims related to an incide

nt th at o ccu rre d at Rog ers ’s h ome when a deck railing gave way and Woodruf f fell to t he concre te below, resulting in serious in juries. On a

ppeal , Rogers argues tha

t the tria l court er

red in deny

ing her m otion

for sum mary judgm ent. For the r easons set forth infra , we agree and reverse. Viewed in the light m

ost favor able to Woodruff, 1 the nonmovant, the record reflect s that on the

night of July

20, 2008, Woodruf

f was a s ocial guest

at t he h ome2

of Janice Rogers. More spec ifically , Woodr uff, w ho was the n a college

student at t

he Universi ty of Wes t G eorgia, was visiti ng with Rogers’s da

ughter, K elly, also a student, at Kelly’s a

par tm ent locate d above her parents’ detached garage. It is undisputed that Janic e Rogers p urchased the proper ty in 2006, and the stairway

and deck leading up to the apar

tment over the de tached ga

rage we re built in 1996 by th e prop erty’s previous ow

ner, wh o was a reside ntial builde r and who s wore by affidavi t that the co unty inspect ed the improvements not long after const ruction. Earlier on the day

in question, Woodruf

f and Kel ly visit ed her par ents who
were away

from home, cam

ping overnig

ht at a lake. B ut after

this visit, W oodruff a

nd Kelly went back to her ap artm ent and got r eady t o go out to a ba

r in near by downtown Carrollton. Along with another friend, Deanna Echols, Woodruff an d Kelly made their wa y to the bar, where t

hey da nced and co nsume d alcoholic beverages until appro x i mately 2:30 a.m. The am ount of alcohol that Woodruff consumed

both befor e and

after a rriving at the bar ishotly

disputed, with Woodruff claim ing that he i mbibe d on ly two drinks at the bar and nothing before and others testify ing that Wo odruff co nsume d multi ple alcoholic beverages at the bar, including up to four shots of liquor, and that he consumed liquor at the apartment before heading o ut for the ev ening.3

What is undis puted is that wh il e at the bar, the trio of friends ran into Devan Haye s, who Woodruff and Kelly knew fr om sc hool and who was wor king as a bouncertha t night. And although Ke lly con sidered Woodruff a close fr iend, Woodruff had deeper

feelings f or Kelly and becam

e visibly upset over

the course

of the evening as she incre asingly directed her atte nt ion towar

d Hay es. Inde ed, at one point after 2: 00 a.m ., an e motiona lly dist raught Woodruf f telephone d his father f

rom the bar’s p arking lot

because h e was so grieved by the situati on (particularly because Woodruff beli eved Hayes had tre ated girls poorly in th e past). Not long after

this call, Kelly , Echols , and Ha yes f ound Woodru ff in the parkinglot and, be fore headin g back to t he apartment, Ke lly in vited Hay es to join them there after he was done working . It is again highly disputed as to how much alcohol Woodruf

f consum ed upon retu

rning to theapartment, wit h Wood ruff deny ing that he had any

thing alcoho lic to drink , and Kelly , Echols , and Hayes (who arrived at3:30 a.m .) all te stifyi ng that W oodruff, althoug h alrea dy highly intoxicate d, continued to imbi

be multiple shots a

nd mixe d drinks. T

he tenor between Hayes and Woodruff at this point

is also disputed, with Kelly and Echols contending that Woodruff was an out-o f-control drunk who was openly hos tile towa r d Hay es, and4

both Hay es and W oodruff c ontending that the two were on much m ore congenial term s. Neverth eless, alt

hough the atmosphere sur rounding thedecision to do so is disputed, it is undisputed that Hayes and Wood ruff went outside of

the apart ment after 4:00 a.m. Acc ording to Woodruff, he wanted to discuss how Hayes should treat Kell y. And be cause Kelly’s apartment was lo cated abo ve her par ents’ garage, it was accessib le only by

an exteri or stairw ay w ith a som ewhat spa cious deck landing at the top entr anc e to the abo de. Hay es and W oodruff w ere on this landing when the incident causing W oodruff’ s injurie s occurre d, while Kelly and Echols remained inside the a

partm ent. According to Kelly

and Echols, Woodruff

and Hay es were

outside only

briefly before the women heard loud voice s, saw and he ard Hayes get slam med up against the door, and then heard another loud sound that, upon exiting the apar tmen t, they surmised must ha ve been W oodruff f

alling thro ugh the deck rail ing to the gr ound below. Woodruf

f, on the o ther hand, testifie d that whil e he could recall nothing after he hit the ground, the fa ll occurr ed a fter he l eaned up ag ainst the railing. H e also2 We note in passing tha

t it is undisputed that following Woodruff’s fall, Ha yes immediately

and heroically rendered aid to Woodru ff until param edics arr ived, perhaps saving Woodruff’s life.

3 Woodruff also filed suit against Dev an Hay es, but he is not a party to this appeal. 5 flatly denied fighting with Hayes. As for H ayes, he testified that Woodruff fell after stumbl ing backwa

rds and falling into the

railing, but he too de nied fighting. 2 W oodr uff was seriously injured as a result of the fall a nd subsequently filed suit against Kelly Rogers’s parents, Janice and Darry l. 3 During the course of dis cov ery, Woodruf

f deposed a

n expert in

construction, who t estified t hat his
exam ination

of the deck a

nd railing r

evealed t hat the railing violated bui lding-code requirem ents for minimum

height and l oad capac ity. The Roge rs eventually fi led a motion for summ ary judgm ent, which the trial court denied as to Janice but granted
as to Darryl because the evidence established that Janice (hereinafter “Rogers”) was the sole owne r of the property where the incident occurred. Specifically, the trial court found that genuine issues of material fact existed as to whether Rogers breached
a duty ow ed to Woo druff by failing to have the de ck inspecte d w hen there was evidence that the de ck was not built to code. We granted R ogers’s applicati on for interlocu tory appeal, whic h we now cons ider.4 See, e.g. , Cmty. Marketplace Props., LLC , 303 Ga. App. at 404 (“ We appl y a de novo s tandard of

appellate review and view t

he evidenc e, and al l reasona bl e conclusi ons and inferenc es drawn from it, in the

light m ost favora

ble to the nonmovant.” (punctuation omitted)).

5 Id. (punctuation omitted).
6 See Thompson v. Oursler , 318 Ga. App. 377, 37 8 (733 SE2 d 359) (2012) (“G eorgia has adopted the

rule that a soci al guest i s not an in vitee but is a licens ee.” (punctuati on omitt ed)); see also OCGA § 51-3-2 (a ) (defini ng the char

acterist ics of a “licensee”); Trulove v. Jones , 271 G a. App. 68 1, 681 (1) (610 SE2d 649) (2005) (noting that a social guest is a licensee). 6 At the outset, we note that on appeal from the denial of a motion for summary judgm ent, we view the evidence de novo in the light m ost favora ble to the no nmoving par ty. 4 Of course, summ

ary judgm ent is appropriate when “there is no genuine issue of material fac t and the m

ovant is entitl ed to judgment as a matter of law.” 5 With thi s guiding principle

in mind , we tur

n now to Rogers’ s enum erations of error on appeal. Rogers contends that the trial court erroneously identified the standard of care owed to Woodruff, a l icensee, when the d eck raili ng was a st atic condi tion and, according ly, m

isapplied t

he law to the facts
. Itis undisputed that Woodruf f was visi ting Rogers ’s prope rty a s a social guest and, th erefore, he was a l icensee un der Georgia l aw. 6 A property owner incurs liability for breaching a duty to a licensee “only for wilf ully or wantonly allowing a7 Thompson , 318 Ga. App. at 378; see als o OCGA § 51-3-2 (b) (“The owner

of the premises is liable to a licensee only f or willful or wanton injury.”) ; Trulove , 271 Ga. A

pp. at 681 ( 1) (“ [Appella

nt] wa s asocial guest or licensee on the prem ises, and as such [Appellee] can only be liable for wilful or wanton injury.”).

8 Trulove , 271 Ga. App. at 681 (1) (punctuation omitted).
9 Id. at 682 (1) (punctuation omitted).
10 Frank Mayes & Assoc., Inc. v. Massood , 238 Ga. App. 416, 418-19 (2) (518 SE2d 903) (1999) (punctuati on omit ted); accord Man sfield v. Colwell C onstr. Co. , 242 Ga. App. 669, 672 (530 SE2d 793) (2000). 7 dangerous static con dition . . . to cause his injuri es.” 7 And “wanton conduct” has been describeda s “that wh ich is so re ckless or s o charged with indif ference to the consequences as to be the equiva l ent in spirit to actual intent to do harm or inflict injury.” 8 Furthermore, a propert y owner has no duty

to a licensee to keep his or her premises up to any

standard o f safety , “e xcept th at [it ] m ust not contain pitfalls , mantraps, and th ings of th at type.” 9 Here, the deck

and railin g did

not am ount to a mantrap or pitfall, the doctrine of which is “

rested upon

the theory

that the owner is expecting a trespasser or a licensee and has pre pared the p remises to do h im injury.” 10 Indeed, a ma ntrap or pitfallis a “ contrivanc e so danger ous in character a s to im ply a di sregard o f11 Massood , 238 Ga. App. at 419 (2) (punctuation omitted); see also M ansfield , 242 Ga. A

pp. at 672 ( “Exa

mples of a m antrap inc lude a spring g un or a trap or a dangerous condition hi dden w ith suffic ient cover to obscureit or to re nder it unobservable to one who approaches it.” (punctuation omitted)).

12 McKinsey

v. Wa de , 136 Ga. App. 109, 111 (5) (220 SE2d 30) (1975).
13 Bullard v. Marriott Int’l, Inc. , 293 Ga. App. 679, 681 (2) (667 SE 2d 909) (2008) (punctuation omitted).

14 262 Ga. App. 216 (585 SE2d 83) (2003).
15 See Thom

pson , 318 Ga. App. at 378 (deck was a static condition); Trulove , 271 Ga. App. at 682 (1) (de ck with missing railing was a static condition); Davis v. Scott , 232 Ga. A

pp. 493, 49 3 (502 SE2 d 332) (1998) (stairw ay w as a stati c condition). 8 consequences or a willingness to inflict inju ry” 11 —for exa mple, a vending

mac hine booby-trapped

with dy namit e to discourage theft. 12 Rogers argues thatthe deck a nd railing in the c ase sub judice constituted a static condition, which is “one that does not change and

is dangero us only i f some one fails to see it and walks into it.” 13 The trial court did determ

ine that the de ck’s ra

iling was a

static con dition; howe ver, the court also dete rm ined that there was evidence that the railing in question was defective. And

rely ing upon

our decisi on in Hicks v. Walker , 14 the trial court denied Janice Rog ers’s motion for s ummary judgment. Like the trial court, we also find that the deck a

mounte d to a

static con dition; 15 howev er, as i n Hicks , the allege d cause of the injur

y—unde rlying

defectiv e16 See Bragg v. Missr oon , 186 Ga. App. 803, 804-05 ( 368 SE2d 564 ) (1988) (affir ming denial of motion for summ ary judgment when

decedent was electrocuted while ascending ladder on dock beside boat house equipped w ith electr ical door with wiring defe cts).

17 262 Ga. A

pp. at 218.
18 Id. ; accord Thom

pson , 318 Ga. App. at 378.

9 constructi on—is more

akin to a hidden peril. 16 Neverth eless, w e conclu de that the trial cour t erred in denying summ

ary j udgmen

t by re lying upo n Hicks. In Hicks , we noted the genera l du ty that a property owner owes to a licensee ( i.e. , not t o wilfully or wantonly inj ure a licensee) 17 and then quot ed the we llestablished principle

that it is “usually wilful or w anton not to exercise ordinary care to prevent in

juring a person wh o is actual ly know n to be or may

reasonabl

y be expectedto be, w ithin range of a dang erous act be ing d one o r a hid den p eril o n one ’s premises.” 18 Additional ly, w e em phasized th at a prope rty

owner is subjec t to liabili ty for physical harm c aused to a licensee by a condition on the property owner’ s land if, but only if, (a) the possessor knows or has reason to know of the condi t ion an d should realize that it involves an unreasonable risk of harm to license es, and should expectthat they

will not di scover or

realize the danger , and19 Hicks , 262 Ga. App. at 218; accord Thom pson , 318 Ga. App. at 378; Bragg , 186 Ga. A

pp. at 804.
20 Thompson , 318 Ga. App. at 378 (punctuation omitted); accord Bra gg , 186 Ga. App. at 804. In Hicks , we al so invoked the p rinciplethat “ [a]ft er the pr esence of a licensee is known, exactly

the sam e acts of ca ution may be required of the ow ner to satisfy the legal duty as would be necessary if the licensee were invited,” 262 Ga. App. at218, before c iting duties ordinaril y owe d by pro perty

owners to invitees , not licensee s, see id. at 218 & n.12 (cit ing F reyer v. Silver , 234 Ga. App. 243, 245 (2) (507 SE2d 7) (1998), for the proposition that “[i]n cases of defec tive constr uction, the owner is presum

ed to have n otice of th e danger” ); id. at 218 & n. 13. (citing Freyer , 234 Ga. App. at 245 (2), for the proposition that an “owne r’s duty to exercise ordinary care includes in s pecti ng the prem ises to disc over possibl e dangerou s conditions o f which the owner

does not have

actual kno wledge, and taking r easonable precauti ons to protect in

vitees fr om dan gers fore seeable f

rom t he use of the prem ises”); id. at 218 & n. 15 (cit

ing Long Leaf Indus. v. Mitchell , 252 Ga. App. 343, 346-47 (3) (a) (556 SE2d 242) (2001) , for the

p roposition th at “e vidence of nonconform

ity w ith code standards may

be proof of a landowner’s superior knowled ge of a defect under OCGA § 51-3-1,” which Code s ection ap plies to invitees ). But see Bryant v. Rucker , 121 Ga. App. 395, 409 (2) (173 SE2d 875) (1 970) (“As to a lic ensee the owner or occupier is under no duty to inspect the premises.”) . As wi ll be clea r from our discussion infra , the use o f this prec edent in Hicks wa s entirely unnecessa

ry to t he holding in that case — i.e. , that under the unique facts of Hicks , there was evidence by which the jury could find that the property owners had constructive knowle dge of the deck’s defects. Accordingly, any referenc e to theseduties in Hicks is dicta and o f 10 (b) he fails t o exercis e reasonable care to make the condition safe, or to warn the licensee s of the con dition and the risk involve d. 19 Reg rett abl y, in Hicks , we ne glected to menti on the third requirem ent , which is that “(c ) the licensee s do not know or have rea son to know of

the conditi on and the r

isk involv ed.” 20no precedenti al utilit y. See Hoes ch Am. , Inc. v. Dai Yang Metal Co. , 217 Ga. App. 84 5, 847 (1) (459 SE2d 187) (1995) (indicating that the term “dicta” r e fers t o language in a judicial opinion that is “unnecessary to the holding of the case”).

21 262 Ga. A

pp. at 216- 17.
22 Id. at 219.
23 Id.
24 Hicks , 262 Ga. App. at 217-18. Sp ecifically, as to the alle gedly d efective construction, the facts showed that the deck failed at

the point at which the deckwas attached to the house, and the deck had been attached to the house with

carpentr y nails , though the codes r

equired the

use of hex b olts; contrary t o code req uirem ents, no flashing w as used to p rote ct the woo d from water d amag e, and the wood was damaged as a result; the s uppo rt posts were set on t op of 11 The facts in Hicks involv ed a 2 -year-old child who was injured in a dec k collapse during a ba

rbeque host ed by th e propert y owners. 21 And although there was
no evidencethat the property owners ha d actual knowledge of the deck’ s dangerous condition, 22 we held t

hat genuine

issues of m

aterial fact exis ted as to w hether the
owners had constructive knowledge of such def ects and whether they exercised ordinary care. 23 In de ed, the facts established that the property owners’ son had recently built the de ck, the de ck was not built in acc ordance w ith codes in force a t the ti me of constru ction, an d the deck woul d not have pa ssed an inspe ction. 24 Thus, undercinder blocks instead of being set into a foundation sufficient to support the weight load of the dec k; and the posts were impr operly “toe -nailed” into the dec k. Id. at 217. 12 the facts of Hicks , genuine issues of materialfact re maine d as to whe ther the owners failed to exercise ordinary care to protect the injure d child–licensee from the hidden peril of the def

ective de ck because

there w as evide nce by w hich a ju ry could have determ ined that th e propert

y owners should have known of the deck ’s conditio n. In stark contrast, here, the undisputed evidenceshows that

although oneperson testifiedthat he hadpreviously noticed that the stairway railing was wobbly, neither Kelly Rogers nor

her pare nts were

awareof any

proble m w ith the stairway or deck railing. And Woodruff himself testified that he saw no vi sible problem wi th the railing. Acco rdi ngl y, there was no evidence of actual knowledge. Additionally, there
was no evidence by which a jury could find constructive knowledge . Indeed , although Woodruff presented expert testimony to establish that the deck railing did not meet building-co de standards in 2008, the expert w itness did

not know when the deck was built. Instead, the undispute d evidence showed tha

t the deck w as built by

a prior
owner of the prop erty in 1996 and that the county inspected the improvem ent atthat25 Cf. Chish olm v. F ulton Supply C

o. , 184 Ga. A

pp. 378, 37 9 (1) (361 S E2d 540) (1987) (“

Appellant ’s alle gations as t o a defec t in t he steps be cause of t heir const ruction

is not support ed by A

tlanta’ s adoption of

its Building

Code in 198 3 when the building w as built in 19 22. The stairs were legal as a no nconforming u se.” (punctuati on omitt ed)); Ray v. Gallant-B elk Co. of Elberton , 147 Ga. A

pp. 580, 58 1 (2) (24 9 SE 2d 63 5) ( 19 78 ) (“T he stairs i n question had been built over forty years previously

and did not meet the standards of the Southern Building Cod e, whic h the City of El ber ton had ado pte d by o rdi nance. T hey w ere conse quently

legal as a nonconforming use.”).

26 262 Ga. App. 216 (585 SE2d 83) (2003). 13 time. And there was no evidence to show that the deck did not meet ap plicabl e building-co de standards when it w as construc ted in 1996 an d i nspected by the
cou nty. 25 Thus, because the undisputed evidence established that the deck a nd railing in question were built

by a pr evious prope rty ow

ner ten y ears prio r to Roger s’s purc hase of the proper

ty and that the co unty ins pected the improveme nt soon afte r its constructi on, we find the facts in the case sub judice wholly inappos ite to those at issue in Hicks v. Walker
. 26 Accordingly, because there is no evidence by which Rogers co uld be sai d to have superior know ledge of th e deck railing’s allegedly27 Compare B ragg , 186 Ga. App. at 805 (affirm ing denial of mot

ion for summar y judgm ent whe n evidence e stablished t hat defec ts in wiring of elec trical doo r for boathouse w ere “ apparent and stood out” and “v isibly d efective ,” cre ating genuin e question of material fact

“as to whether

appellant s should have known of the haz ards created by the defects i n wiring at their boat dock”), with Barksdal e v. Nuw ar , 203 Ga. App. 184, 184-85 (416 S E2d 546) ( 1992) (affir ming gr ant of motion

for summ ary judgm ent when evidence establishe d that deck collapsed due to alleged ly def ective constructi on, but hom eowner h a d no actual kno wledge of defects and therewas no evidence of

constructive knowledge when deck was professionally built, home owner personally inspected the deck, and deck appeared to be well constructed).

2 8 See Jor dan v. Bennett , 312 Ga. App. 838, 841 (1) (72 0 SE2d 301) (2011) (revers ing denial of m

otion for summ ary j udgmen

t in case c oncerning

licensee ’s fall off of out door d eck, and holding that “[b]ecause there [ was] no evidence . . . that [appella nt] wilfully

or wanton ly inj ured [app ellee] or that heknowingly exposed her to a dan ger ous acti vit y, hidden peril, pitfall, or mantrap, there [was] no evidence that [appella nt] breached his duty of care to [appellee] such that he has any liability for her injuries”); Ruffin v. Ruffin , 159 Ga. App. 830, 830-31 (285 S E2d 261) ( 1981) (affir ming grant of su

mm ary j udgmen

t to proper

ty own er on

claim for inju ries ari sing out of minor’s f

all through rotten boar

d on dock when p laintiff al leged, inter alia , that board was a hidden pe ril, but t here wa s no evidenc e of

actual knowledge or evidence to support a jury finding of constructive knowledge). 14 dangerous condition, 27 the trial court er red in d enying

her motion for summ

ary judgm ent. 28 Judgment reversed. Doyle, P. J. , and Miller, J., concur in judgment only.