                              FIRST DIVISION
                               BARNES, P. J.,
                          MCMILLIAN and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    March 14, 2019




In the Court of Appeals of Georgia
 A18A2074. YEARTY v. SCOTT HOLDER ENTERPRISES, INC.

      MCMILLIAN, Judge.

      After Darla J. Yearty badly burned her hand in a kitchen fire, she sued Scott

Holder Enterprises (“Holder Enterprises”) for installing an allegedly defective smoke

detector alarm system that she contends failed to alert her soon enough to the fire.

After the trial court granted summary to Holder Enterprises, Yearty appealed,

asserting that genuine issues of material fact remain as to whether Holder

Enterprises’s negligence was the proximate cause of her injuries. Because this case

presents the relatively rare situation where the plaintiff cannot show that the

defendant’s alleged negligence was the cause in fact, much less, the proximate cause

of her injuries, we affirm the trial court’s grant of summary judgment.
      Summary judgment is appropriate when the moving party can “show that there

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law[.]” OCGA § 9-11-56 (c). A defendant is entitled to obtain

summary judgment “by showing an absence of evidence supporting at least one

essential element of the plaintiff’s claim.” (Citation and punctuation omitted.) Pham

v. Black, 347 Ga. App. 585, 586 (820 SE2d 209) (2018). However, “[t]he defendant

does not need to affirmatively disprove the plaintiff’s case, but may prevail simply

by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest

on his pleadings, but must point to specific evidence that gives rise to a triable issue

of fact.” (Citation and punctuation omitted.) Meadows v. Diverse Power, Inc., 296

Ga. App. 671,671 (675 SE2d 571) (2009). “We review a grant or denial of summary

judgment de novo and construe the evidence in the light most favorable to the

nonmovant.” (Citation and punctuation omitted.) Med. Center of Central Ga., Inc. v.

Macon Health Center, Inc., 345 Ga. App. 879, 880 (815 SE2d 199) (2018).

      So viewed, the evidence1 demonstrates that in August 2007, Holder Enterprises

installed a security system and smoke monitoring system in Yearty’s home.

According to Yearty, she did not talk with Holder Enterprises about “any type of

      1
          The only evidence in the record comes from Yearty’s deposition.

                                           2
specifics” about the system but “hired [the company] to put systems in to protect . .

. me and my children in my house.” During the first several months after the system

was installed, Yearty complained to Holder Enterprises that the system was not

working and someone from the company “came to [her] house ten, twelve, fourteen

times, trying to fix the system so that it would work.” The last time a Holder

Enterprises employee worked on the system before the fire was in November 2007,2

and after spending “the day [at Yearty’s home, the worker] called [her] and said that

he had resolved all of the issues; he had done the call-in with the service and that

everything responded and that he was through.”

      Yearty testified that on the evening of August 18, 2008, she received a phone

call while she was frying chicken on the stove. After completing her phone call, she

checked on the chicken and turned the chicken pieces over to continue cooking. She

then sat on the sofa and “nodded off.” She estimated that she was asleep about three

to four minutes, when she awoke to the smell of smoke. Because of the smoke, she

could not tell if it was the pan that was burning or the chicken, but she recalled from


      2
         Although in her deposition Yearty recalled the date as in November 2008,
which would have been after the fire, she states in her brief in response to Holder
Enterprises’s motion for summary judgment and her appellate brief that the date of
the last repair on the system was actually November 2007.

                                          3
her fire safety training that water should not be used to extinguish a grease fire.

Yearty could not reach the baking soda that she kept in a cabinet over the microwave

because of the heat from the fire, so she instead poured flour on the pan.3 According

to Yearty, because of the smoke, she

      couldn’t see the knob at the moment, to just turn [the stove] off . . . I was
      really scared to put my hands up under there, but I knew I didn’t have
      a choice. So . . . I took [one] hand to turn the knob off[,] which was right
      beside the pot. [The other] hand, I had the top, trying to simultaneously
      put the top on the pan and turn the knob off; and it was just like lava. It
      just bubbled over. And it bubbled on my right hand, which was turning
      the knob off.


Yearty’s right hand was severely burned in the incident. Approximately, two years

after the incident, in July 2010, Yearty had the smoke alarm system evaluated by a

different security company, which determined that a card to activate the system was

missing.

      Yearty filed a complaint for personal injuries and damages, and Holder

Enterprises answered, denied liability, and subsequently filed a motion for summary



      3
        Yearty normally kept a fire extinguisher at home, but at the time of the fire
she had moved the extinguisher to her place of business, which was due for a fire
inspection and was short one extinguisher.

                                           4
judgment.4 In granting summary judgment to Holder Enterprises, the trial court

determined that there was no genuine issue of material fact as to proximate cause, and

thus the company was not liable in negligence for Yearty’s injuries as a matter of law.

The trial court found that Yearty

      failed to present any fact to establish [Holder Enterprises’s] negligence
      was the proximate cause of her injuries. Specifically, [Yearty] failed to
      show that [Holder Enterprises] should have foreseen the actions taken
      by [Yearty] that resulted in her injuries. [Yearty] was injured neither by
      the alleged breach of the duty related to the installation, maintenance, or
      operation of the System nor by its failure to alert her to the grease fire
      on her stove. [Yearty] was injured when she voluntarily undertook to
      extinguish the grease fire in her kitchen by dumping flour in the pan,
      covering the pan with a lid, and then removing the pan from the burner.


      On appeal, Yearty asserts that had Holder Enterprises properly installed the

smoke detector she would have awoken earlier when there was a minimal amount of

smoke, thus allowing her “an opportunity to go to the stove and turn off whatever was

burning, and that would have kept [her] hand from getting burned.” She further

argues that it was foreseeable that she would suffer an injury without a properly



      4
        Holder Enterprises also filed a motion to dismiss contending that the statute
of limitations barred recovery, which the trial court denied.

                                          5
functioning smoke detector and that Holder’s failure to correctly install the system

was the primary factor in causing her injury.

       “It is well established that to recover for injuries caused by another’s

negligence, a plaintiff must show four elements: a duty, a breach of that duty,

causation[,] and damages.” (Citation and punctuation omitted.) Johnson v. American

Nat. Red Cross, 276 Ga. 270, 272 (578 SE2d 106) (2003). Causation is further broken

down into two elements: cause in fact and proximate cause. City of Richmond Hill v.

Maia, 301 Ga. 257, 258 (1) (800 SE2d 573) (2017) (“A plaintiff must prove that the

defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the

injury.”).

       Turning first to the question of cause in fact, in order to show that a

defendant’s negligence is a cause in fact of a plaintiff’s injuries, “[the] plaintiff

ordinarily must prove that, but for this conduct, he would not have sustained the

injury. (Citation omitted.) Strength v. Lovett, 311 Ga. App. 35, 43-44 (2) (b) (714

SE2d 723) (2011). In other words, “[t]he defendant’s conduct is not a cause of the

event, if the event would have occurred without it.” (Citation and punctuation

omitted.) Id. at 44 (2) (b). Here, the fire started as a result of Yearty’s leaving chicken

frying in hot oil on her stove while she fell asleep. Even assuming for purposes of

                                            6
summary judgment that the smoke detector was defectively installed, Yearty has

pointed to no evidence, beyond her own bare assertion at her deposition, that a

working smoke detector would have alerted her any sooner to the fire, much less that

it would have alerted her at a sufficiently early interval to have allowed her to use her

bare hand to turn off the stove without danger.5 Without any supporting factual

evidence, Yearty’s testimony in this regard is merely conjecture or speculation, thus

giving the jury no basis on which to render a verdict in her favor.

      “As we have held, no inference of fact may be drawn from a premise which is

wholly uncertain.” (Citation and punctuation omitted.) Ogletree v. Navistar Intl.

Transp. Corp., 245 Ga. App. 1, 6 (1) (535 SE2d 545) (2000). Rather,

      [t]he 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



      5
        The only evidence in the record about the timing of the fire is Yearty’s
testimony that she was asleep for about three to four minutes before she woke up to
the smoke. Presumably, Yearty would not have purposely left the oil unattended if it
had already caught fire before she fell asleep, so when would have a properly
functioning alarm have sounded? A minute earlier? Two minutes earlier? Or would
the smoke alarm have sounded after Yearty naturally awoke?

                                           7
      balanced, it becomes the duty of the court to grant summary judgment
      for the defendant.


(Citation omitted.) Whiteside v. Decker, Hallman, Barber & Briggs, P.C., 310 Ga.

App. 16, 18-19 (712 SE2d 87) (2011). Here, Yearty has not pointed to any evidence

showing that but for a non-functioning smoke detector, Yearty would not have

sustained her injuries. Because no genuine issue of material fact exists as to whether

the defective smoke detector was the cause in fact of Yearty’s injuries, the trial court

properly granted summary judgment.

      Moreover, even if the alleged failure of the smoke detector could somehow be

deemed a cause in fact, Yearty cannot establish that it proximately caused her

injuries. Proximate cause is defined as “that which, in the natural and continuous

sequence, unbroken by other causes, produces an event, and without which the event

would not have occurred.” (Punctuation omitted.) Zwiren v. Thompson, 276 Ga. 498,

500 (578 SE2d 862) (2003).

      Inextricably entwined with concepts of negligence and proximate cause
      is a notion of foreseeability. To that end, the well-established doctrine
      of intervening causes states that there can be no proximate cause where
      there has intervened between the act of the defendant and the injury to
      the plaintiff, an independent act or omission of someone other than the


                                           8
      defendant, which was not foreseeable by defendant, was not triggered
      by defendant’s act, and which was sufficient of itself to cause the injury.


(Citation and punctuation omitted.) Maia, 301 Ga. at 258-59 (1).

      Once Yearty awoke, she took it upon herself to extinguish the fire by throwing

flour on it and reaching her bare hand into the smoke next to a pot of hot oil, with

what she described as a “little fire” and smoke “boiling out,” even though she could

not see clearly what was on fire. Yearty testified that she bought the smoke detector

system to protect her family and herself from fire danger, thereby preventing or

reducing any resulting damages and injury. Yet when Yearty became aware of the

fire, she did not attempt to avoid injury, but, instead, she approached the fire and

actively increased her risk of harm by exposing her bare skin to the potential of

spilled, boiling oil. Although she contends she had no choice but to reach her hand

in to turn off the stove because otherwise her house would have burned down, she

points to no evidence to create a jury issue as to this contention, beyond stating that

she lived “eight miles out in the country[],” and she certainly has not pointed to any

evidence to support a finding that she was compelled to use her bare hand to

accomplish this task. Therefore, Yearty’s own decision to put her unprotected hand

near a pot of flaming, smoking oil was an intervening factor between any alleged

                                          9
smoke alarm malfunction and her injuries. And it cannot be considered foreseeable

that an individual who sought to avoid danger by installing a smoke alarm would

instead increase her own risk of harm by placing her exposed, bare flesh in close

proximity to a pot of burning oil.

      Consequently, this case is not one where the injury was the natural and

probable consequence of wrongful conduct that should have been foreseen by the

defendant, and thus Yearty cannot establish the element of proximate cause. Cf.

Wadkins v. Smallwood, 243 Ga. App. 134, 139 (3) (530 SE2d 498) (2000) (upholding

jury verdict finding that alleged failure of smoke detector was not proximate cause

of injury to one adult and child where adults did not sleep through the fire and had

sufficient time to remove other children from the apartment and reenter it several

times); Wilkerson v. Alexander, 208 Ga. App. 83, 86 (2) (429 SE2d 685) (1993)

(summary judgment warranted where record contained nothing to establish that the

absence of a smoke detector was the proximate cause of victim’s death where

evidence showed that victim did not sleep through the fire; therefore, “there was




                                        10
nothing to indicate that the only reason she did not survive was because no alarm

sounded.”).6

      Judgment affirmed. Reese, J., concurs. Barnes, P. J., dissents.

      *THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2




      6
         The case of Housing Auth. of City of Atlanta v. Jefferson, 223 Ga. App. 60,
62 (2) (476 SE2d 831) (1996) (physical precedent only), upon which Yearty relies,
is not binding precedent and is readily distinguishable. There, the housing authority
failed to maintain a smoke detector in its rental property although it had a statutory
duty to do so, and a three-year-old child was injured when a fire broke out in the
house his family rented from the authority. His aunt, who was babysitting, was able
to escape, but the fire department was required to don protective clothing and
breathing gear to rescue the child. This Court found that questions of fact existed as
to whether the presence of a smoke detector would have prevented or lessened the
injury to the child. However, there was no evidence that the child took any action to
expose himself to harm, thereby proximately causing his own injuries, as Yearty did
in this case.

                                         11
 A18A2074. YEARTY v. SCOTT HOLDER ENTERPRISES.



      BARNES, Presiding Judge, dissenting.

      Because I believe that there remains a genuine issue of material fact as to

whether the improperly installed smoke alarm’s failure to alert Yearty to the presence

of smoke resulted in her injury, I must respectfully dissent to the majority opinion

holding otherwise.

             One who undertakes, . . . for consideration, to render services to
      another which he should recognize as necessary for the protection of the
      other’s person or things, is subject to liability to the other for physical
      harm resulting from his failure to exercise reasonable care to perform his
      undertaking, if: (a) his failure to exercise such care increases the risk of
      such harm, or (b) the harm is suffered because of the other’s reliance
      upon the undertaking.


Section 323 of the Restatement (Second) of Torts. And, “[d]amages which are the

legal and natural result of the act done, though contingent to some extent, are not too

remote to be recovered.” OCGA § 51-12-9. See Collie v. Hutson, 175 Ga. App. 672,

673 (3) (334 SE2d 13) (1985). Although the majority and Holder Enterprises contend

that Yearty was not injured by a breach related to whether the smoke detector

functioned properly but by Yearty’s voluntary choice to confront the fire, “[t]he

purpose of a smoke detector is to provide an early warning of fire and to reduce the

damages and injury resulting therefrom.” Housing Authority of City of Atlanta v.

Jefferson, 223 Ga. App. 60, 62 (2) (476 SE2d 831) (1996). In this case, the smoke

alarm did not do that for which it was intended, and, in fact, would never have alerted

Yearty to the presence of smoke because there was evidence that, despite Holder

Enterprises’s assurances otherwise, it was improperly installed. Given this, and the

evidence that Yearty’s response to the grease fire was related to her inability to see

because of the presence of copious amounts of grease smoke,“[h]ad a smoke detector

been [working] to provide an early alarm, it is possible that [Yearty] would have been

[alerted before the smoke impeded her vision], thereby avoiding or lessening the


                                          2
extent of [her] injuries.” Housing Authority of City of Atlanta, 223 Ga. App. at 62 (2).

See Newsome v. LinkAmerica Express, 336 Ga. App. 800, 802-803 (786 SE2d 692)

(2016) (where, while temporarily blinded by the sun, a motorist drove into a tractor

alleged to be illegally parked on the street, it was an issue for the jury whether the

driver was barred from recovery by contributory negligence).

       A smoke alarm is intended to warn us of the presence of smoke. Our common

experience tells us that people do not merely run at the presence of smoke but rather

ascertain whether there is a fire and attempt to mitigate ensuing harm by perhaps

attempting to ensure the safe escape of loved ones or to protect the home or valued

or irreplaceable possessions. This Court should decline to decide the folly or wisdom

of such actions unless reasonable minds cannot differ as to the conclusions to be

reached. See Villanueva v. First American Title Ins. Co., 313 Ga. App. 164 (721 SE2d

150) (2011) ( summary judgment as to causation appropriate only when “reasonable

persons could not differ as to both the relevant facts and the evaluative application

of legal standards (such as the legal concept of ‘foreseeability’) to the facts”) (citation

and punctuation omitted). Thus, “other than in plain, palpable, and undisputed cases,

questions of negligence [and] proximate cause, including the related issue[] of . . .

lack of ordinary care in avoiding the consequences of another’s negligence, . . . are


                                            3
for the jury.” (Punctuation and footnote omitted.) McCray v. FedEx Ground Package

System, 291 Ga. App. 317, 322 (1) (661 SE2d 691) (2008).

      For these reasons, I must respectfully dissent.




                                         4
