Owner Not Liable for Contractor's Injuries

Facts: An independent contractor sued the owner of an assisted site for injuries she suffered when she fell through a second-floor bathroom. The site manager had called the contractor, who owned and operated a business that performed cleaning and repair services, after a resident had filed a HUD complaint. The resident had complained that the unit had a mold problem that was making her children sick, as well as a water leak and an issue with the bathtub. The manager asked the contractor to look at the unit.

When she visited the unit with other site personnel, the contractor claimed that the unit “[reeked] of mold when you walked in there.” She walked inside the upstairs bathroom, where she noticed that a 7-8 inch hole had rusted out of the bathtub and that the floor was sloping in one direction and felt “soft” to her.

She also walked into the downstairs kitchen, which was located underneath the upstairs bathroom, and noticed that the kitchen wall was swollen and “moist to the touch.” There also appeared to be moisture on the kitchen ceiling.

After walking through the unit, the contractor provided an estimate for replacing the rusted bathtub in the upstairs bathroom, and the manager accepted the proposal. Additionally, because the bathroom floor was sloping and felt soft, the manager asked her to look at the subfloor underneath the linoleum. If the subfloor was damaged, the manager asked her to replace it. She agreed to replace the subfloor if the site had the necessary materials.

The following day, the contractor’s crew, under her supervision, removed the wall tile, the rusted bathtub, and the linoleum floor in the upstairs bathroom. The crew also removed the bathroom subfloor after observing that it was black and water damaged. As a result of the crew’s work, the bathroom was stripped to its floor joists. After observing the undersized and water-damaged floor joists, the contractor called the manager to inform her that the condition of the bathroom was horrible and involved much more work than she had expected. The manager responded by asking her to “take some pictures, and send them to us, and let us know how much you will charge us to repair it.”

The contractor was standing in the bathroom during her phone call with the manager. When she ended the call, she leaned over to photograph the wall behind the sink with her phone. She didn’t look at the joist she was standing on, which then gave way, and she fell into the downstairs kitchen onto an open hot oven, and suffered multiple injuries.

The owner asked a trial court for a judgment without a trial. The contractor opposed the request, arguing that there were issues of fact regarding whether the owner should have warned her of the hazard posed by the floor joist support system and whether the owner had superior knowledge of the hazard. The trial court denied the owner’s request for a judgment without a trial. The owner appealed.

Ruling: A Georgia appeals court reversed the lower court’s ruling and granted the owner’s request.

Reasoning: The court ruled that the contractor had equal knowledge of the hazardous condition that led to her fall. Of course, “[a]n owner or occupier of land must exercise ordinary care to keep his premises safe for invitees.” Where the uncontroverted evidence shows that the invitee had knowledge of the dangerous condition equal to that of the premises owner, there can be no recovery by the invitee for injuries resulting from the dangerous condition.

In this case, the evidence shows that the contractor was aware of the hazardous condition of the floor joists before her fall. The owner presented evidence that prior to her fall, she had repaired the subfloors in 26 of the units at the site, three of which required the installation of new joist supports underneath the subfloors. With respect to the unit at issue here, she testified in her deposition that before her fall, she had observed that the wall and ceiling of the kitchen directly beneath the upstairs bathroom were moist; that the kitchen cabinets and closet had extensive water and mold damage caused by an ongoing leak that she had assumed came from the bathroom; and that the bathroom floor was sloping and felt “soft.” She further testified that once her crew exposed the floor joists, she saw that the joists were discolored from apparent water damage; looked “separated,” “weathered,” and “crumbly”; were “basically rotted wood”; and had been repaired with undersized lumber. Even after making these observations, she continued standing on the exposed joists as she called the manager.

To the court, it was clear the contractor had at least equal knowledge of the hazardous condition of the floor joists before she fell from the upstairs bathroom.

Additionally, the evidence reflects that she was an independent contractor who was hired to replace the bathtub and the damaged subfloor, and under Georgia law, “an independent contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract.”

• Forest Cove Apartments, LLC v. Wilson, August 2015