Opinion
45248.
ARGUED APRIL 6, 1970.
DECIDED NOVEMBER 13, 1970.
Action for damages. Fulton Superior Court. Before Judge Shaw.
Neely, Freeman Hawkins, Paul M. Hawkins, Albert H. Parnell, for appellant.
Bryan, Carter, Ansley Smith, Melburne D. McLendon, James B. Gurley, for appellee.
1. Even though the defendant was the occupier of and in control of the premises, proof could be introduced to the effect that an alleged negligent condition which existed on a sidewalk adjacent to such premises had been created by one who was not defendant's servant or under his control and direction.
2. An affidavit with respect to the defendant's duties and responsibilities under a written contract, where such contract is not attached to the affidavit or otherwise included in the record, will not support the grant of a motion for summary judgment.
3. (a) The defendant as movant for summary judgment must produce evidence which conclusively negates at least one essential element entitling the plaintiff to recovery under every theory fairly drawn from the pleadings and evidence.
(b) Issues of negligence, including the related issues of assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence and comparative negligence, are ordinarily not susceptible of adjudication on motion for summary judgment.
ARGUED APRIL 6, 1970 — DECIDED NOVEMBER 13, 1970.
Mrs. Zuma Reed filed her complaint in the Fulton Superior Court against Batson-Cook Company. The complaint sought recovery for injuries sustained predicated on the alleged negligence of the defendant. The plaintiff alleged that at the time she received her injuries, the Atlanta Art Association was in the process of having the Atlanta Cultural Center constructed at 1280 Peachtree Street; that the defendant was the general contractor for the project and was in direction and control of the construction and the premises; that the defendant by and through its agents, servants and employees, acting within the scope of their authority, placed or allowed to accumulate certain debris and water which were inherently dangerous and slippery on a sidewalk which abutted the construction site; that the defendant had actual knowledge of the slippery condition and failed to give any warning to the plaintiff; that the plaintiff, while in the exercise of ordinary care without any knowledge of the existing dangerous condition, fell on the debris, mud and water and suffered serious injuries.
The defendant's answer admitted the construction work and that it was the general contractor for the public under the terms and provisions of a written contract with the Atlanta Art Association. The defendant denied knowledge of the dangerous situation, denied that such was the result of acts by its servants and agents, and denied any liability whatsoever.
The defendant filed a motion for summary judgment which was based upon the plaintiff's deposition, certain written interrogatories and the answers thereto, and an affidavit by the superintendent of the defendant corporation. In essence, the affidavit of the defendant's agent denied that, by contract or otherwise, the defendant was engaged in moving dirt, mud or water from the premises. The affiant related that other independent contractors were charged with this responsibility and that Batson-Cook had no control, right or responsibility with regard to these independent contractors or as to the work that they were carrying out.
The trial judge sustained the defendant's motion for summary judgment and dismissed the plaintiff's complaint. Appeal was taken from that judgment.
The plaintiff argues in this court that under provisions of Code § 105-501, the owner or occupier of property is required to keep the premises and approaches safe; that the property having been turned over to the defendant as general contractor who was in control and possession of the premises, this statutory duty therefore fell upon it, citing Butler v. Lewman Co., 115 Ga. 752 ( 42 S.E. 98). Therefore, it is reasoned that even if the defendant was a general contractor, it could not escape responsibility for negligence or insulate itself from liability through the interposition of subcontractors or other independent contractors.
Where a general contractor is in control of the premises, such contractor obtains the status of occupier so that it has a responsibility to invitees and others entering the premises which is equivalent to that duty owed by the owner of the premises. Central of Ga. R. Co. v. Lawley, 33 Ga. App. 375 (4) ( 126 S.E. 273); Tyler v. Peel Corp., 371 F.2d 788, 790; McDade v. West, 80 Ga. App. 481, 487 ( 56 S.E.2d 299), and cases cited therein; Newburn v. Healey Real Estate c. Co., 17 Ga. App. 217, 222 ( 86 S.E. 429). Here the plaintiff alleged that the injuries occurred on a public sidewalk and the defendant introduced proof that it had no knowledge of the alleged dangerous or slippery condition.
Where the injuries occur not on the property but on a sidewalk adjacent thereto, a different rule is applicable. "The law places upon a municipality the duty of keeping its sidewalks safe for travel in the ordinary manner. Code §§ 69-301, 69-303; Hammock v. City of Augusta, 83 Ga. App. 217 ( 63 S.E.2d 290). The placing of such responsibility upon municipalities relieves an abutting property owner unless he caused or actively participated in causing the obstruction or defect in the street or sidewalk." Rhodes v. Perlis, 83 Ga. App. 312, 313 ( 63 S.E.2d 457). The cases cited by the plaintiff are also authority for this rule. For, as was held in Georgia R. Elec. Co. v. Tompkins, 138 Ga. 596, 599 ( 75 S.E. 664): "An owner of property abutting upon a street or highway is not, by virtue of being such owner, liable for defects in the street or highway. But this rule has no application where the owner of abutting property creates a defect in a street or highway or a nuisance therein. In the latter event he is liable, not because he owns the abutting property, but because he creates or maintains the thing from which injury results." (Emphasis supplied.) See also Kelisen v. Savannah Theatres Co., 61 Ga. App. 100, 103 ( 5 S.E.2d 712), and others.
In Goldman v. Clisby, 62 Ga. App. 516 ( 8 S.E.2d 701), the plaintiff sued the defendant, a landowner, for an alleged negligent condition created on a public sidewalk by an independent contractor working for such landowner in accomplishing repairs to the landowner's premises. The court found no duty owed to the pedestrian by the landowner unless the landowner was the person directly responsible or unless he had ratified the wrong by accepting the property after the completion of the work by the independent contractor. It then held: "This principle [ratification], however, will not cover defective conditions caused by such contractor on the premises of third persons, although such defective conditions were created by such contractor during the course of the work or repairs on the owner's property." P. 518.
Thus, the defendant in this case, although alleged to be in control of the premises, could show that the negligent condition had been created by one who was not its servant or under its control and direction.
2. We now consider whether the defendant did establish its nonliability, i.e., that any negligence which resulted in injuries to the plaintiff was not caused by an agent or servant of the defendant. In this connection, the defendant's agent by affidavit offered extensive testimony as to the defendant's responsibility under the contract. The defendant's answer showed that its contract was in writing.
In a line of cases, our appellate courts have held that, while a written contract itself is the best evidence, oral testimony as to the contents of the contract admitted without objection is sufficient to sustain a verdict. Cummings v. State of Ga., 84 Ga. App. 698, 700 ( 67 S.E.2d 156); Thomas N. Baker Lumber Co. v. Atlantic Mill c. Co., 24 Ga. App. 749 (2) ( 102 S.E. 135); Maynard v. Rawlins, 45 Ga. App. 91 (1) ( 163 S.E. 269); Munroe v. Baldwin, 145 Ga. 215 (2) ( 88 S.E. 947). In Planters Rural Telephone Cooperative, Inc. v. Chance, 108 Ga. App. 146 ( 132 S.E.2d 90), this court applied the same principle to a motion for summary judgment holding that the grant of a motion for summary judgment could be sustained by secondary evidence where it was admitted without objection.
Nevertheless, the Supreme Court in a recent opinion has nullified the effect of this principle insofar as a summary judgment is concerned. Green v. Wright, 225 Ga. 25 ( 165 S.E.2d 843). There the court held that uncontradicted proof consisting of an affidavit as to the chain of title shown by certain deeds was inadmissible and did not require the grant of a summary judgment. The court predicated its decision on the fact that the deeds themselves were the highest and best evidence, hence the statements as to the contents of the deeds were inadmissible; further, that the deeds were not attached to the affidavit as required by Code Ann. § 81A-156 (e) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238).
We therefore adopt the ruling of the Supreme Court, which is controlling here, and hold that the statements contained in the affidavit as to the defendant's duties and responsibilities, absent the written contract, did not support the grant of a motion for summary judgment.
3. The plaintiff's testimony by deposition was uncertain and would not necessarily establish her right to recovery. However, the defendant was the movant for summary judgment. Under such circumstances, the rule is applicable: "The defendant, having made the motion for summary judgment, must produce evidence which conclusively negates at least one essential element entitling plaintiff to a recovery under every theory fairly drawn from the pleadings and the evidence." Werbin Tenenbaum, Inc. v. Heard, 121 Ga. App. 147 (2) ( 173 S.E.2d 114); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 91 ( 176 S.E.2d 487). Hence, the burden was on the defendant to pierce the pleadings and to show conclusively that the plaintiff had no right to recover. The proof offered failed to accomplish this.
It is further urged that the plaintiff failed to exercise ordinary care for her own safety. "Issues of negligence, including the related issues of assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence and comparative negligence, are ordinarily not susceptible of summary adjudication whether for or against the plaintiff or the defendant, but must be resolved by a trial in the ordinary manner." Wakefield v. A. R. Winter Co., 121 Ga. App. 259 ( 174 S.E.2d 178). Thus, the trial judge erred in granting the motion for summary judgment.
Judgment reversed. Bell, C. J., and Whitman, J., concur.