                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           BRANCH and BETHEL, 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


                                                                     June 27, 2017




In the Court of Appeals of Georgia
 A17A0586. VININGS RUN CONDOMINIUM ASSOC., INC., et al.
     v. STUART-JONES.

      BETHEL, Judge.

      Vinings Run Condominium Association, Inc. and Access Management Group,

L.P. (collectively, the “appellants”) appeal the denial of their motion for summary

judgment. They argue that the plaintiff in the underlying action, Linda Stuart-Jones,

had equal or superior knowledge of the allegedly unsafe conditions surrounding an

outdoor staircase and that such knowledge should bar her recovery. The appellants

further argue that the trial court erred in finding that the necessity rule applies

because Stuart-Jones does not have a landlord-tenant relationship with the appellants.

We agree and reverse.
      Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, 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). “In response to a properly

supported motion for summary judgment which pierces the pleadings, plaintiffs may

not stand upon their allegations, but must come forward with evidence to contravene

defendants’ proof or suffer judgment.” Essien v. CitiMortgage, Inc., 335 Ga. App.

727, 727 (781 SE2d 599) (2016) (citations omitted).

      Summary judgment enjoys no presumption of correctness on appeal, and
      an appellate court must satisfy itself de novo that the requirements of
      OCGA § 9-11-56 (c) have been met. In our de novo review of the grant
      or denial of a motion for summary judgment, we must view the
      evidence, and all reasonable inferences drawn therefrom, in the light
      most favorable to the nonmovant.


Id. at 728 (citation and punctuation omitted).

      Viewed in this light, the evidence shows that Stuart-Jones had a verbal

agreement with the owner of a condominium to lease-purchase the home. Stuart-Jones

had been residing in the condominium since 2007. In her deposition, Stuart-Jones

testified that she had previously made requests to maintenance regarding the need for


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lighting and an additional handrail on the concrete stairs leading from the parking lot

to her condominium. However, she contends these requests were ignored.

Subsequently, after returning home one evening, Stuart-Jones fell while ascending

the concrete stairs. She suffered some injuries from that fall.

      Stuart-Jones brought suit against the condominium association, Vinings Run

Condominium Association, Inc., and the management company, Access Management

Group, L.P., seeking recovery for these injuries. Stuart-Jones alleged that the

appellants were responsible because they had failed to install adequate lighting and

other features necessary to keep the stairway safe. Vinings Run and Access

Management moved for summary judgment, arguing that Stuart-Jones could not

recover for her injuries because she had equal, if not superior, knowledge of the

allegedly unsafe conditions. In response, Stuart-Jones argued that she could still

recover because the necessity rule applied, meaning that it was necessary for her to

traverse the allegedly unsafe conditions to enter her residence. Vinings Run and

Access Management argued that the exception only applies in the context of a

landlord-tenant relationship, which did not exist between them and Stuart-Jones. The

trial court denied Vinings Run and Access Management’s motion for summary

judgment, finding that the necessity rule applied, and this appeal followed.

                                          3
      “It has often been held that the true basis for a landlord’s liability to a tenant

for injuries resulting from a defective or hazardous condition existing on the premises

is the landlord’s superior knowledge of the condition and of the danger resulting from

it.” Richardson v. Palmour Court Apartments, 170 Ga. App. 204, 205 (316 SE2d 770)

(1984). “In accordance with the superior knowledge principle, it has been held that

where a portion of leased premises is dangerously out of repair and such condition

is patent and known to the tenant, who continues to use that area, the tenant cannot

recover from the landlord for damages resulting from the condition.” Id. (citation and

punctuation omitted). See also Flores v. Strickland, 259 Ga. App. 335, 337 (1) (577

SE2d 41) (2003) (“A landlord is not liable for a plaintiff’s injuries caused by a

dangerous condition when the plaintiff had equal or superior knowledge of the danger

and failed to exercise ordinary care to avoid it.” (footnote omitted)). A tenant is

presumed to have knowledge of allegedly dangerous, but static, conditions that he or

she has successfully negotiated on a previous occasion. Amerson v. Kelly, 219 Ga.

App. 377, 378 (465 SE2d 470) (1995).

      However, Stuart-Jones argues that the equal or superior knowledge rule does

not bar her recovery because the necessity rule exception applies.



                                          4
      The necessity rule applies in the context of a landlord-tenant
      relationship where the tenant is required to traverse a known hazard in
      order to enter or leave his home. Under that exception, when the
      dangerous area is a tenant’s only access or only safe and reasonable
      access to his home, the tenant’s equal knowledge of the danger does not
      excuse the landlord from liability for damages caused by a failure to
      keep the premises in repair. Thus, the necessity rule exception tempers
      the equal or superior knowledge rule when there is no other means of
      safe ingress and egress to the leased premises.


Flores, 259 Ga. App. at 337-38 (2) (footnotes and punctuation omitted). See also Hull

v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269, 270 (235 SE2d 601) (1977) (“To hold

otherwise, we would make the appellant a captive in her own apartment...forcing her

to abandon her very means of livelihood until such time as the appellee found it

convenient to remedy the dangerous situation.”).

      But the necessity rule exception only applies to situations involving landlords

and tenants. See Shansab v. Homart Dev. Co., Inc., 205 Ga. App. 448, (4) (422 SE2d

305) (1992) (declining to extend the necessity rule to employees of a tenant located

in the proprietor’s building); Hart v. Brasstown View Estates, Inc., 234 Ga. App. 389,

391 (506 SE2d 896) (1998) (necessity rule does not apply to innkeeper-guest

relationship) (physical precedent only); Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158,


                                          5
159-60 (335 SE2d 408) (1985) (the necessity exception applies in landlord-tenant

cases, but not when the parties have a business owner-customer relationship).

       Thus, the question for this Court to resolve is whether a landlord-tenant

relationship exists here between the parties in this suit. Stuart-Jones fails to point this

Court to any evidence in the record to this effect. Rather, Stuart-Jones appears to have

an oral lease with the owner of her condominium unit.1 Because she cannot

demonstrate a landlord-tenant relationship with the appellants, the necessity rule does

not apply. Further, Stuart-Jones conceded that she was aware of the conditions around

the concrete stairs that she contends were unsafe and which allegedly contributed to

her fall. Accordingly, because Stuart-Jones had equal knowledge of the allegedly

unsafe conditions of which she complains, and because the necessity rule does not

apply, the trial court erred in denying summary judgment.

       Judgment reversed. McFadden, P. J., and Branch, J., concur.




       1
       Stuart-Jones testified that the condominium owner forwards her the mortgage
payment information, and Stuart-Jones pays the mortgage note directly with Wells
Fargo.

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