Juan and Araceli Sotomayor filed a wrongful death action against TAMA I, LLC, and Perennial Properties, Inc., collectively referred to as “the landlord” the owner and manager of the apartment complex where they reside, alleging that the landlord negligently failed to prevent the death of their five-year-old daughter, Leslie, who was struck and killed by a car driven onto the property by Maria de Lourdes Suarez. Suarez drove across marked parking spaces, over a raised concrete curb, four feet of sidewalk, and 13 feet of grass before striking Leslie and crushing her against the brick wall of her apartment building. Suarez immediately fled the scene and has not been apprehended. She was named as a defendant but was never served. The Sotomayors assert that the landlord was negligent by failing to install a higher curb, called a “barrier curb” or “bumper stop” instead of the lower, mountable curb over which Suarez drove, in front of the parking spaces adjacent to the sidewalk.1 The landlord moved for summary judgment. The trial court granted the motion, holding that there was no competent evidence that the landlord had a duty to install bumper stops; that Leslie’s death was unforeseeable because it was caused by the intervening criminal act of Suarez; and that the equal knowledge rule barred the Sotomayors’ recovery.2 The Sotomayors appeal, and we affirm. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 c. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 e.3 Viewed most favorably to the Sotomayors, the evidence shows that on October 23, 2000, at approximately 5:30 p. m., Araceli Sotomayor was watching her three young children play in the grassy area adjacent to her apartment building. Araceli deposed that it was still light outside. She noticed a car coming very slowly across the bridge leading into the complex. Araceli estimated the speed at approximately five m.p.h. The car turned into the parking area. As the car came closer, Araceli recognized it as the one her husband had sold to Suarez one month earlier. The next thing she knew, the car was pinning Leslie against the wall. By the time the ambulance arrived, the child was dead. Araceli testified that Leslie had been standing three feet away from the wall of the building. According to Araceli’s deposition and the police report, it appeared that Suarez was going to park her car, but she did not slow down or stop. She continued onto the sidewalk, crossed the grassy area, struck Leslie, “clipped” her younger brother, and, finally, hit the wall.
Aaron B. Goldman, an owner of Perennial Properties and TAMA I, testified that when TAMA purchased the 30-year-old complex in 1997, there were bumper stops at between five and ten percent of the parking spaces. In June 1998, Goldman decided to install additional bumper stops to protect the landscaping because residents were parking haphazardly on the grass. Goldman was concerned with making the property more attractive to prospective tenants, so the new bumper stops were concentrated in the parking area around the leasing office. Goldman testified that the devices were not installed to prevent collisions between pedestrians and vehicles.
