Rebecca A. Lore and David Alan Lore filed suit against their homeowners association, the Suwanee Creek Homeowners Association, Inc. “SCHOA”, alleging claims for nuisance, trespass, and negligence based on water runoff from a SCHOA-owned “Recreation Area” immediately behind their property. The Lores also asserted a personal injury claim based on injuries Rebecca Lore sustained when the ground upon which she was standing collapsed, attributing the collapse to the repeated flooding and storm water runoff washing away the earth under what appeared to be solid ground surface. SCHOA moved for summary judgment on all claims. The trial court granted summary judgment as to the Lores’ personal injury claims and denied summary judgment as to the remaining claims. The Lores appeal the grant of summary judgment in A10A0012, and SCHOA appeals the denial of summary judgment in A10A0013. For reasons that follow, we reverse in both cases. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A trial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the nonmovant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact.1 So viewed, the record shows that SCHOA owns and maintains a large wooded area known as the Recreation Area, which was constructed by Westbrook, 23, LLC, the developer for the subdivision, and which abuts the rear of the Lores’ property. The Lores’ property is downhill from the Recreation Area. The plat for the development denotes a 20-foot “improved ditch” that, according to the Lores’ complaint, would direct water runoff through pipes and into a pond and a creek in the Recreation Area; the ditch was designed to ensure that water runoff did not traverse lots in the subdivision, including the Lores’ property. According to the complaint, the subdivision declaration provides that SCHOA “shall maintain and keep in good repair . . . all storm water, storm water management, and detention facilities serving the Development.” It is undisputed that the improved ditch was never constructed. According to the Lores, storm water flows through pipes and onto the ground of the Recreation Area, where it then flows directly downhill to the Lores’ property before it reenters the Recreational Area and ultimately a pond. The Lores documented 48 instances of storm-water runoff onto their property between June 2004 and October 2007. Mrs. Lore deposed that a majority of the water “is coming specifically from the SCHOA property and ponding on the Lores’ property.” The Lores made extensive complaints to SCHOA about the water, but they were unavailing. In 2004, Westbrook the Developer offered to construct the ditch in exchange for a hold harmless agreement from SCHOA, but SCHOA would not agree.
On October 23, 2006, Mrs. Lore walked onto the Recreation Area to pick up trash. She was at the top of an embankment, looking down, when she squatted and then stood up, “the ground just gave out from underneath her,” and she then fell, impaling her forearm on a branch. Mrs. Lore’s injury occurred “at least four feet away from the closest edge of a sinkhole. . . .” that the Lores first noticed on June 27, 2004, while they were cleaning their deck.2 Prior to the incident, Mrs. Lore observed the sinkhole approximately 50 times. Because she was worried that someone could fall into the hole and injure themselves, she notified no fewer than 28 people, including neighbors, SCHOA board members, and county officials, about the hole.3 Prior to her fall, Mrs. Lore took multiple photographs of the hole, and she placed orange warning cones around it for a six-month period, but ultimately stopped because the cones repeatedly blew away. According to Mrs. Lore, she spent “hundreds” of hours investigating the sinkhole, which included researching “facets of the county and the board”; she does not, however, testify about the results of her investigation. At her deposition, she was asked whether in October of 2006, there was anyone “more familiar with the sinkhole and its possible dangerous condition”4 than she was, and Mrs. Lore replied, “Not more so, no. There’s probably people that are equal but not more so.” However, when asked about her knowledge of the danger surrounding the hole before her incident, Mrs. Lore testified that she was concerned that someone might back into it or might walk up to the edge, lose their balance, and fall into it. Mrs. Lore further expressed that she, however, did not fall or slip into the hole; rather, she was “swallowed up” by it. When asked whether the ground around the sinkhole was unstable, Mrs. Lore replied, “I don’t know. I just know that the water was. . . it continued to cut lengthwise and depthwise. It didn’t seem to be changing too much in its width. It was just cutting straight down and through, trying to find its way.”5
