That is sufficient to avoid summary judgment. See McCullough v. Briarcliff Summit, L.P. II, 237 Ga. App. 630 , 632 (2) (516 SE2d 353 ) (1999) (unlit stairs). I am authorized to state that Presiding Judge Barnes and Judge Reese join in this dissent and that Presiding Judge Miller concurs in judgment only as to this dissent.
The evidence before us, construed in favor of Stuart-Jones as the party opposing summary judgment, OCGA ยง 9-11-56, is that both staircases were insufficiently lit. That is sufficient to avoid summary judgment. See McCullough v. Briarcliff Summit, L.P. II , 237 Ga. App. 630, 632 (2), 516 S.E.2d 353 (1999) (unlit stairs).I am authorized to state that Presiding Judge Barnes and Judge Reese join in this dissent and that Presiding Judge Miller concurs in judgement only as to this dissent.
Based on the foregoing undisputed evidence, the trial court properly concluded that Yon was not relieved of her burden of establishing Shimeall's superior knowledge of the alleged hazard created by the stairs. Yon's reliance on McCullough v. Briarcliff Summit, 237 Ga. App. 630 ( 516 S.E.2d 353) (1999), is misplaced, as that case is physical precedent only. Furthermore, it is distinguishable in that the tenant in McCullough testified that he was not aware that the stairwell located several doors down a dark hallway from his apartment was safer than the one he used. Id. at 632(2).
Because it is undisputed that Vineville did not have actual knowledge of the hole, we focus our inquiry on whether there is any evidence that it had constructive knowledge. See McCullough v. Briarcliff Summit, L. P. II, 237 Ga. App. 630, 631(1) ( 516 S.E.2d 353) (1999) (physical precedent only); Padilla v. Hinesville Housing Auth., 235 Ga. App. 409, 411 ( 509 S.E.2d 698) (1998). (Punctuation omitted.)
That rule precludes summary judgment against a landlord where the tenant had no alternative but to traverse a known hazard in order to enter or leave his home. McCullough v. Briarcliff Summit, 237 Ga. App. 630, 632 (2) ( 516 S.E.2d 353) (1999); Hart v. Brasstown View Estates, 234 Ga. App. 389, 391 ( 506 S.E.2d 896) (1998). But the rule does not apply under the facts of this case.