                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                           RICKMAN and MARKLE, 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 6, 2019




In the Court of Appeals of Georgia
 A18A1985. PARKE TOWNE NORTH APARTMENTS, LLC et al. McF-074
     v. CASTRO et al.

      MCFADDEN, Presiding Judge.

      This appeal is from an order denying a defense motion for summary judgment

in a premises liability action involving a fatal fall from a landing outside a third-floor

apartment. Because there exist genuine issues of material fact, we affirm.

      1. Facts and procedural posture.

      “Summary judgment is warranted when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. On appeal from

the grant or denial of summary judgment, we conduct a de novo review, with all

reasonable inferences construed in the light most favorable to the nonmoving party.”
Homelife on Glynco, LLC v. Gateway Center Commercial Assn., 348 Ga. App. 97

(819 SE2d 723) (2018) (citations and punctuation omitted).

      So construed, the evidence shows that Rodrigo Gutierrez, Matilde Castro, and

their daughter lived in a third floor apartment in the Parke Towne North Apartments

in the city of Brookhaven in DeKalb County. At approximately 10:00 p.m. on Friday

May 30, 2014, Gutierrez began drinking beer with some men outside the front of a

first floor apartment. When Castro went to bed about 10:30 p.m., Gutierrez was still

outside. Gutierrez later came into the bedroom to get a shirt and then left the

apartment. About 6:00 the next morning, Saturday May 31, 2014, a neighbor found

Gutierriez lying deceased on the ground approximately 18 feet below the landing

outside the back door of the apartment.

      The police were contacted, arrived at the scene a short time later, and found

Gutierrez lying face-down on a concrete surface with both arms outstretched above his

head and a large pool of blood around his head and shoulders. An officer found

Gutierrez’s keys on the third-floor landing near the back door of the apartment,

observed that the railing on the landing was “shorter than normal,” and measured it

at about two-and-a-half feet in height. Based on the location of the keys, the height of

the railing, and the location of the body, the police determined that it appeared


                                           2
Gutierrez had accidentally fallen from the third-floor landing and reported that no foul

play appeared to be involved. The medical examiner who performed the autopsy found

that Gutierrez had a blood alcohol concentration of .265, that the cause of death was

blunt force trauma to his head, that the investigation information supported the

contention that Gutierrez had fallen from the third floor landing to the ground below,

and that the manner of death was accidental.

      Castro, as the guardian of Gutierrez’s child, along with the administrator of

Gutierrez’s estate filed a wrongful death action against Parke Towne North

Apartments, LLC and Title Realty, Inc., the owners and managers of the apartment

complex, alleging that the railing on the landing did not comply with the 42-inch

height requirement of the applicable building codes and that it was not properly

secured to the building. Parke Towne and Title Realty moved for summary judgment,

arguing that they are not subject to the building codes, that Gutierrez had equal

knowledge of the alleged hazard, and that there was no evidence of causation. The

trial court denied the motion for summary judgment and certified its order for

immediate review. This court granted Parke Towne and Title Realty’s application for

interlocutory review and this appeal followed.

      2. “Grandfather” status under building codes.


                                           3
      The appellants contend that the trial court erred in failing to grant them

summary judgment because the undisputed evidence establishes that their apartment

complex, including the railing in question, was built in the 1960s before the

applicable building codes were adopted, and therefore it had “grandfather” status

exempting it from the codes in effect at the time of Gutierrez’s fall. The contention is

without merit because there are genuine issues of material fact about whether the

railing created a hazard and thus did not qualify for grandfather status.

      A “grandfather clause” is “[a] statutory or regulatory clause that exempts a class

of persons or transactions because of circumstances existing before the new rule or

regulation takes effect.” Black’s Law Dictionary (10th ed. 2014). The grandfather

clause at issue in this case, set forth in the City of Brookhaven Code of Ordinances

Sec. 7-59 (b), provides:

      Buildings, structures, plumbing, mechanical and electrical systems
      lawfully in existence at the time of the adoption of the ordinance from
      which this article is derived shall be permitted to have their use and
      maintenance continued if the use, maintenance or repair is in accordance
      with the original design and no hazard to life, health, or property is
      created by such building, structure or system.

(Emphasis supplied.)




                                           4
      In support of their argument that they have grandfather status under this clause,

the appellants have pointed to testimony from their expert witness and from a

contractor opining that the property was grandfathered in; they note that they have

never been issued a citation with regard to the railings at the complex; and they cite

to certificates of code compliance issued before and after the fall. The appellants claim

that appellees have failed to present any opposing evidence creating a genuine issue

of material fact as to their grandfather status.

      But contrary to the appellants’ claim, under the plain language of the

grandfather clause emphasized above, the railing in question does not have

grandfather status if it creates a hazard to life, health or property. And the appellees

submitted the affidavit of an expert who testified, among other things, that the railing

in question is only 29 inches high, that he does not know of any building code ever

allowing such a railing height, that the bottom of the railing was not properly attached

to the deck, that the railing moved several inches outward when pushed, and that the

railing thus constituted a fall hazard for anyone on the deck. The expert further opined

that the railing was “not ‘grandfathered-in’ because [it] constituted a hazard to life,

health and property as defined by the City of Brookhaven Ordinance.”




                                            5
      As the trial court noted in its order, there were competing expert opinions

presented on summary judgment. And given the conflicting evidence as to whether the

railing created a hazard, there exist genuine issues of material fact about whether the

railing has grandfather status. So, the trial court did not err in denying summary

judgment on this ground.

      3. Equal knowledge.

      The appellants contend that they are entitled to summary judgment because

Gutierrez had equal knowledge of the allegedly hazardous railing. We disagree.

      It is true that

      the true ground of liability is the landowner’s superior knowledge of the
      perilous condition and the danger therefrom to persons coming upon the
      property. It is when the perilous condition is known to the owner and not
      known to the person injured that a recovery is permitted. Given this
      requirement of superior knowledge, we have repeatedly held that a
      landlord is not liable to the tenant or the tenant’s family for injuries
      resulting from a patent defect which existed at the time the lease was
      executed and of which both the landlord and tenant knew or had equal
      opportunity to know.

Johnson v. Green Growth 1, 305 Ga. App. 134, 136-137 (699 SE2d 109) (2010)

(citations and punctuation omitted) (physical precedent).

      But there is an exception to this rule where the defect violates a building code.

Id. at 137 n. 2.


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      A landlord is subject to liability for physical harm caused by a dangerous
      condition existing before or arising after the tenant has taken possession,
      if he has failed to exercise reasonable care to repair the condition and the
      existence of the condition is in violation of an implied warranty of
      habitability or a duty created by statute or administrative regulation.
      The landlord, the owner of the underlying estate, cannot avoid duties
      created by housing codes. This principle applies with equal force to a
      landlord’s violation of a duty created by a building code or other
      regulatory provision affecting safety of the premises.

Bastien v. Metro. Park Lake Assn., 209 Ga. App. 881, 882 (434 SE2d 736) (1993)

(citations and punctuation omitted; emphasis supplied). So even though a tenant may

have equal knowledge of an obvious defect, “that is not necessarily a bar to recovery

when the defect is in violation of a duty created by applicable statute or administrative

regulation.” Id. In such cases, “our courts have come to recognize a state policy of

prevention of unsafe residential housing, holding landlords liable in tort for failure to

correct conditions that exist in violation of the duties created by the housing codes and

other legislation.” Watts v. Jaffs, 216 Ga. App. 565, 566 (455 SE2d 328) (1995).

             Undoubtedly, a landlord’s liability is not absolute. Landlords
      enjoy the usual defenses available in a negligence action, including those
      based on contributory negligence and assumption of the risk. But such
      defenses present questions for a jury except in extraordinary cases, where
      the facts are plain and indisputable. And, in cases involving housing
      code violations, the facts supporting these defenses will not be plain or
      indisputable. For example, a tenant who is aware of a condition that
      violates a housing code does not necessarily appreciate the danger
      presented – a danger that has been studied and regulated by a governing

                                           7
      body. . . . [G]iven the important public policy at issue, we find that a jury
      should assess the reasonableness of the tenant’s conduct and the extent
      to which the tenant appreciates the risk of that conduct. Such result does
      not impose absolute liability on a landlord. It simply allows a jury to
      decide questions regarding ordinary care and the assumption of any risk.

Johnston v. Ross, 264 Ga. App. 252, 255-256 (590 SE2d 386) (2003) (citations and

punctuation omitted).

      In this case, there are genuine issues of material fact about the landlord and

tenant relationship of the parties; whether the railing was grandfathered in as

discussed above; and whether the railing violates the applicable building codes. Thus,

“the trial court did not err in denying [the appellants’] motion for summary

judgment.” Housing Authority v. Jefferson, 223 Ga. App. 60, 63 (3) (476 SE2d 831)

(1996) (in affirming denial of summary judgment, noting that landlord cannot hide

behind equal knowledge to avoid duties mandated by housing codes).

      4. Causation.

      Parke Towne and Title Realty assert that the trial court erred in denying their

motion for summary judgment because there is no evidence of the essential element

of causation. We disagree.

             Causation is always an essential element in slip or trip and fall
      cases. Where the plaintiff does not know of a cause or cannot prove the
      cause, there can be no recovery because an essential element of


                                           8
      negligence cannot be proven. A mere possibility of causation is not
      enough and when the matter remains one of pure speculation or
      conjecture and the probabilities are at best evenly balanced it is
      appropriate for the court to grant summary judgment to the defendant.

Richardson v. Mapoles, 339 Ga. App. 870, 872-873 (794 SE2d 669) (2016) (citation

omitted).

      But contrary to the appellants’ arguments, causation in this case is not merely

a matter of pure speculation or conjecture. Rather, the appellees have pointed to

evidence showing that Gutierrez was intoxicated, that he was on the third-floor

landing, that the railing was only 29 inches high and not secured to the wall, that he

fell off the balcony to his death, that the police found that the fall was accidental and

that there was no evidence of foul play, and that the medical examiner likewise found

that the manner of death was consistent with an accidental fall. It is true that there is

no eyewitness testimony or other evidence directly showing exactly what caused

Gutierrez’s fall; but the circumstantial evidence cited by the appellees supports their

theory that Gutierrez lost his balance and accidentally fell over the railing, which

failed to stop his fall to the ground below. See Miller v. Turner Broadcasting Sys.,

339 Ga. App. 638, 643 (1) (794 SE2d 208) (2016) (although no direct evidence of

causation where plaintiff’s injuries left him unable to testify, plaintiff escaped



                                           9
summary judgment because jury could find from other evidence that the injuries were

proximately caused by the defendants’ negligence).

      As our Supreme Court has explained:

      Circumstantial evidence . . . may be sufficient for a plaintiff’s claim to
      survive summary judgment, if other theories are shown to be less
      probable. There is no requirement that other theories be conclusively
      excluded. . . . In those circumstances, the question as to the sufficiency
      of the circumstantial evidence, and its consistency or inconsistency with
      alternative hypotheses, is a question for the jury.

Patterson v. Kevon, LLC, 304 Ga. 232, 236 (818 SE2d 575) (2018) (citation,

punctuation, and emphasis omitted).

      The appellants theorize that instead of an accidental fall, it is possible that

Gutierrez was pushed off of or jumped from the landing. They have not cited any

evidence to support either theory, but rely on the absence of direct evidence as to

precisely what happened at the time of the fall to speculate as to such theories. While

the circumstances surrounding the fall do not conclusively exclude the appellants’

proposed theories, the circumstantial evidence cited by appellees shows those theories

to be less probable than the theory of an accidental fall over the railing. Consequently,

the sufficiency of the circumstantial evidence as to causation and its consistency with

the alternative theories are questions for the jury. See generally Axom v. Wendy’s Intl.,



                                           10
238 Ga. App. 528, 529 (1) (518 SE2d 734) (1999) (well settled that proximate cause

ordinarily a question to be decided by a jury, and the court should not decide it except

in plain and indisputable cases). The trial court therefore did not err in denying

summary judgment on this ground.

      Judgment affirmed. Rickman and Markle, JJ., concur.




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