CHAM v. ECI MANAGEMENT CORPORATION ( 2021 )

In the Supreme Court of Georgia
Decided: March 15, 2021
S20G0601. CHAM et al. v. ECI MANAGEMENT CORPORATION
et al.
WARREN, Justice.
In this wrongful death action, the surviving spouse of Franklin
Callens and the administrator of his estate (collectively, “Plaintiffs”)
sued the owner and manager of an apartment complex (collectively,
“Defendants”) where Callens was killed during an armed robbery.1
Plaintiffs alleged that Defendants were negligent in failing
adequately to secure their premises from criminal activity.
Defendants prevailed at trial, and Plaintiffs appealed, contending,
in relevant part, that the trial court erred in giving a jury instruction
on the law applicable to “licensees” in premises liability cases. The
1Bintou Cham is the surviving spouse of Callens, and Aeysha Harris is
the administrator of his estate. At the time of the incident, the apartment
complex was owned by Cobb Six-Flags Associates, Ltd., and managed by ECI
Management Corporation.
Court of Appeals affirmed the trial court’s decision on that issue. We
granted certiorari on the following question:
Did the trial court err in charging on the duty a
landowner owes a licensee, when there was evidence
showing that the plaintiffs’ decedent was a guest of a
lawful tenant of the landowner?
For the reasons that follow, we conclude that the answer is “no” and
therefore affirm.
1. Background
In December 2015, Callens was shot and killed during an
armed robbery in a parking lot of the Concepts 21 Six-Flags
apartment complex that was owned and managed by Defendants. It
is undisputed that the parking lot was a common area of the
apartment complex. At the time of his death, Callens was separated
from his spouse and was staying in a three-bedroom apartment in
the complex with his girlfriend, Asia Jones. At trial, Jones testified
that she and Callens began living together in July 2014 and that she
leased the apartment at issue in September 2014. Before signing
the lease, Jones testified, she had asked the assistant manager if it
2
would be “okay” for Callens to live with her, and the assistant
manager said that it was “perfectly fine,” as long as Jones paid “the
amount for the rent, whatever that is, like double the rent or
whatever.”2 Jones further testified that she talked to the assistant
manager “[m]ultiple times” about Callens living in the apartment
and that she told the assistant manager that she would like Callens
to be present at lease signing and during the apartment tour to
“make sure he liked it before I leased it.” And, Jones testified,
Callens was present with her at the time she signed the lease.
Other evidence, however, suggested that Callens was not
authorized to reside on the property. Jones acknowledged that she
did not put Callens’s name on the rental application that asked the
applicant to list the “Name and Relationship of All Other Persons to
Occupy Apartment”; instead, Jones marked that space “N/A.” And
the rental agreement that Jones signed—first in September 2014
2 Aside from this statement by Jones, there does not appear to be any
evidence that Jones actually paid higher rent as a result of Callens living with
her. Indeed, the testimony of a former manager indicates that a tenant would
not be charged more for having additional authorized adults living in the
tenant’s apartment.
3
and then again as part of a renewal in October 2015—stated that
the apartment “shall be used for Residential purposes only and shall
be occupied only by persons named in Resident’s application to rent.”
Similarly, a former property manager testified that the
management had a policy that every adult who resides in a rented
apartment should be listed on the lease. The purpose of this policy,
the manager explained, was to allow the management to obtain a
credit report and criminal background check on all adult occupants
of the property.
During the charge conference, Defendants requested that the
trial court give the jury the pattern charges on the duty of care owed
to invitees, licensees, and trespassers in premises liability cases.
Plaintiffs opposed the licensee charge, arguing that, based on the
evidence presented, Callens was either an invitee or a trespasser,
depending on whether the jury believed Jones that Defendants gave
Callens permission to live in the apartment. As a result, Plaintiffs
contended, “it is appropriate under the facts of this case to charge
[the jurors] on invitee and on trespasser, but not as to licensee.”
4
The trial court ruled in Defendants’ favor and included the
following pattern charge on licensees as part of its jury instructions:
The licensee is a person who, one, is not a customer,
employee, or trespasser; two, does not stand in any
contractual relation with the owner of the premises; and
three, is permitted expressly or impliedly, to go on the
premises merely for his or her own interests, convenience
or gratification.
The general test as to whether a person is an invitee
or a licensee is whether the injured person at the time of
the injury had business relations with the owner of the
premises that would cause his or her presence to be
beneficial to both. In the absence of some relationship
with the owner or occupier of the premises, no invitation
may be implied, and the injured person must be regarded
as a licensee.
A licensee enters on the premises at his or her own
risk, and the owner owes the licensee no duty as to the
conditions of the premises, except that the owner should
not knowingly let the licensee run into a hidden peril or
willfully or wantonly cause him or her injury.
The jury returned a verdict in favor of Defendants, and the trial
court entered a judgment on the verdict. Plaintiffs appealed to the
Court of Appeals, arguing (among other things) that the trial court
erred in instructing the jury on the definition of and duty owed to a
licensee.
5
The Court of Appeals reversed the trial court’s judgment on two
issues for which we did not grant certiorari review, and it remanded
the case (with directions) for a new trial. See Cham v. ECI Mgmt.
Corp., 353 Ga. App. 162 (836 SE2d 555) (2019).3 On the jury charge
issue, however, the Court of Appeals affirmed, holding that the trial
court did not err in charging the jury on the duty owed to a licensee.
Specifically, the Court of Appeals reasoned that
even if Callens was living in the apartment without
Defendants’ permission and in violation of the lease,
Callens could still be considered a social guest of Jones,
the authorized tenant[,] and therefore permitted on the
premises by the tenant for his “own interests,
convenience, or gratification” and without any
contractual relation to Jones or Defendants.
Id. at 165-166. To support its reasoning, the Court of Appeals cited
the general principle that social guests are deemed to be licensees,
rather than invitees. See id. at 166; Brown v. Dickerson, 350 Ga.
3 Specifically, the Court of Appeals held that the trial court committed
reversible error when it instructed the jury on the assumption of risk, and that
the trial court applied an erroneous evidentiary standard in excluding evidence
of the Defendants’ security expenditures. See Cham, 353 Ga. App. at 168, 172.
Because this Court did not grant certiorari to review those issues, we express
no opinion about them.
6
App. 137, 138 (828 SE2d 376) (2019) (“[Plaintiff] undisputedly was
a social guest on [landowner]’s property and thus was a licensee.”);
Thompson v. Oursler, 318 Ga. App. 377, 378 (733 SE2d 359) (2012)
(in evaluating landowner’s liability, noting that “Georgia has
adopted the rule that a social guest is not an invitee but is a
licensee”) (citation and punctuation omitted). See also Brown v.
Clay, 166 Ga. App. 694, 695 (305 SE2d 367) (1983). We granted
certiorari to review the licensee charge the trial court gave the jury.
2. Applicable Law
To authorize a jury instruction, “[t]here need be only slight
evidence supporting the theory of the charge.” Daly v. Berryhill, 308
Ga. 831, 833 (843 SE2d 870) (2020). And “[t]he evidence supporting
the charge does not have to be direct evidence. It is enough if there
is something from which a jury could infer a conclusion regarding
the subject.” Id. at 833-834 (citation and punctuation omitted). See
also Jones v. Sperau, 275 Ga. 213, 213 (563 SE2d 863) (2002) (“If
there is even slight evidence on a specific issue, it is not error for the
court to charge the jury on the law related to that issue.”) (citation
7
and punctuation omitted). Here, we must decide whether there was
at least “slight evidence” that Callens was a licensee, as opposed to
an invitee or a trespasser, so as to warrant the jury instruction given
at trial. See Daly, 308 Ga. at 833. To answer that question, we first
examine the premises liability law applicable to this case.
(a) Background Principles of Landowner and Landlord
Liability
Generally, a landowner has a duty to keep its premises safe for
visitors, and this duty “depends, to a certain extent, on whether the
one entering the property is an invitee, a licensee or a trespasser.”
Lipham v. Federated Dept. Stores, Inc., 263 Ga. 865, 865 (440 SE2d
193) (1994). This duty is codified, in relevant part, in OCGA §§ 51-
3-1, 51-3-2, and 51-3-3. The first of these code sections establishes
that a landowner owes a duty of ordinary care “in keeping the
premises and approaches safe” when the landowner has extended
an invitation to the visitor:
Where an owner or occupier of land, by express or implied
invitation, induces or leads others to come upon his
premises for any lawful purpose, he is liable in damages
to such persons for injuries caused by his failure to
8
exercise ordinary care in keeping the premises and
approaches safe.
OCGA § 51-3-1. The next code section defines “licensees” and
clarifies that landowners owe a different and lower standard of
care—liability only for “willful or wanton injury”—for visitors who
are classified as licensees:
(a) A licensee is a person who:
(1) Is neither a customer, a servant, nor a trespasser;
(2) Does not stand in any contractual relation with the
owner of the premises; and
(3) Is permitted, expressly or impliedly, to go on the
premises merely for his own interests, convenience, or
gratification.
(b) The owner of the premises is liable to a licensee only
for willful or wanton injury.
OCGA § 51-3-2. The third code section likewise establishes that a
landowner owes no duty of care to a visitor classified as a trespasser,
“except to refrain from causing a willful or wanton injury.” OCGA
§ 51-3-3 (b).
In explaining the distinction between invitees and licensees,
we have stated that “the determining question as to whether a
visitor is an invitee by implication or a licensee is whether or not the
9
owner or occupant of the premises will receive some benefit, real or
supposed, or has some interest in the purpose of the visit.” Anderson
v. Cooper, 214 Ga. 164, 169 (104 SE2d 90) (1958). The Court of
Appeals similarly has said that “a person may be deemed an invitee
if his presence on the property is of mutual benefit to both him and
the landowner,” whereas a licensee “falls between” an invitee and a
trespasser and “is one who is permitted, either expressly or
impliedly, to go on the premises of another, but merely for his own
interest, convenience, or gratification.” Matlack v. Cobb Elec.
Membership Corp., 289 Ga. App. 632, 634 (658 SE2d 137) (2008).
See also Esposito v. Pharr Court Assoc., L.P., 334 Ga. App. 434, 437
(779 SE2d 675) (2015) (“The mutuality of interest required to make
one an invitee upon the premises of another does not mean that
there must be a commercial business transaction between the
parties. It is sufficient to show that each party is moved by a lawful
purpose or interest in the object and subject matter of the
invitation.”) (citation and punctuation omitted).
10
These principles become more complicated when the
landowner is also a landlord who is leasing parts of the property to
tenants. A landowner’s duty to visitors is imposed “because the
landowner has control over the property and is thus able to act in
order to protect others from conditions on the property which might
cause harm.” Lipham, 263 Ga. at 865. See also Robinson v. Kroger
Co., 268 Ga. 735, 736 (493 SE2d 403) (1997) (the “fundamental basis
for an owner or occupier’s liability” under OCGA § 51-3-1 is “that
party’s superior knowledge of the hazard encountered by the
plaintiff”). But when the landowner cedes possession of the property
to a tenant, the landowner’s control over the property and the
concomitant ability to make the property safe becomes limited. See
Colquitt v. Rowland, 265 Ga. 905, 906 (463 SE2d 491) (1995) (“[T]he
use of the tenements really belongs to the tenant during the lease;
they are his property to use for the term for which they are rented;
and the landlord has no right to enter upon them, except by
permission of the tenant, during the term for which they are
rented.”) (citations and punctuation omitted).
11
For this reason, Georgia law has long excepted landlords from
general landowner liability with respect to premises possessed by
tenants; this exception is now codified in OCGA § 44-7-14, which
provides:
Having fully parted with possession and the right of
possession, the landlord is not responsible to third
persons for damages resulting from the negligence or
illegal use of the premises by the tenant; provided,
however, the landlord is responsible for damages arising
from defective construction or for damages arising from
the failure to keep the premises in repair. 4
See also Colquitt, 265 Ga. at 906 (“A landlord’s liability to a third
person who is injured on property which was relinquished by rental
4 OCGA § 44-7-14 has been interpreted narrowly. We have held, for
instance, that OCGA § 44-7-14 does not include a “duty of maintenance,” and
we have stated that “any alteration or expansion of an out-of-possession
landlord’s statutory liability must emanate from the legislature and not from
the courts of this State.” Martin v. Johnson-Lemon, 271 Ga. 120, 123, 125 (516
SE2d 66) (1999).
A related statute applicable to landlords is OCGA § 44-7-13, which
provides: “The landlord must keep the premises in repair. He shall be liable
for all substantial improvements placed upon the premises by his consent.” We
have held, however, that this code section “imposes contractual, but not tort,
liability on a landlord.” Colquitt, 265 Ga. at 906. See also Langley v. MP
Spring Lake, LLC, 307 Ga. 321, 326 (834 SE2d 800) (2019) (“[T]he duties
imposed by OCGA § 44-7-13 sound only in contract, not in tort . . . .”).
12
or under a lease is determined by OCGA § 44-7-14.”); Birdsey v.
Greene, 176 Ga. 688, 689-690 (168 SE 564) (1933) (summarizing the
history of the predecessor to OCGA § 44-7-14). 5
In many instances, a landlord’s plot of land contains both areas
that are possessed by the landlord (such as the common areas of an
apartment complex) and areas possessed by tenants (i.e., the
apartments themselves). In such cases, a landlord’s tort liability for
a danger on its property is determined by the area where that
danger lurks. If the dangerous condition that ultimately causes an
injury is located in an area the landlord still possesses, then liability
under OCGA § 51-3-1 et seq. applies, and OCGA § 44-7-14 does not
apply by its own terms. See OCGA § 44-7-14 (applying to landlords
5 The language in OCGA § 44-7-14 has remained virtually unchanged
since it was first codified in 1895. See Georgia Code of 1895, § 3118 (“The
landlord, having fully parted with possession and right of possession, is not
responsible to third persons for damages resulting from the negligent or illegal
use of the premises by the tenant. But he is responsible to others for damages
arising from defective construction, or for damages from failure to keep the
premises in repair.”); Georgia Code of 1910, § 3694 (same). See also Roach v.
Le Gree, 18 Ga. App. 250, 251 (89 SE 167) (1916) (stating that, at common law,
before Georgia embraced the principle now codified in OCGA § 44-7-14, “the
tenant, and not the landlord, was bound to make all necessary repairs, unless
there was an express stipulation to the contrary in the rental contract.”).
13
who have “fully parted with possession and the right of possession”);
Langley v. MP Spring Lake, LLC, 307 Ga. 321, 326-327 (834 SE2d
800) (2019) (citing Johnson v. Green Growth 1, LLC, 305 Ga. App.
134, 136 (699 SE2d 109) (2010) (“Where . . . the landlord has retained
control over common areas of an apartment complex to which
tenants and others are allowed access, the landlord has a legal duty
under OCGA § 51-3-1 to exercise ordinary care in keeping the
common areas safe.”) (punctuation omitted)). 6
Conversely, if the dangerous condition exists in an area
possessed by the tenant (such as in the tenant’s residence), then a
6 Of course, OCGA § 51-3-1 et seq. is not the only source of a landowner’s
liability for injuries occurring on the property the landowner occupies; this
statutory framework concerns the “condition of the premises,” and it does not
apply to cases of “active negligence.” See Lipham, 263 Ga. at 865 (holding that
OCGA § 51-3-1 et seq. did not apply to limit the liability of a store owner for
the negligent act of its employee, who had unintentionally knocked plaintiff to
the ground). See also Byrom v. Douglas Hosp., Inc., 338 Ga. App. 768, 771-772
(792 SE2d 404) (2016) (“[N]ot all claims which arise from an injury sustained
inside a building constitute premises liability . . . . Liability is determined
under the framework of premises liability only if an injury is caused by a
condition of the premises over which the premises owner/occupier has some
degree of control, such as a static condition or passive defect.”).
14
landlord’s liability derives from OCGA § 44-7-14 and not from OCGA
§ 51-3-1.7 See Martin v. Johnson-Lemon, 271 Ga. 120, 123 (516 SE2d
66) (1999) (where the injury occurred on leased property possessed
by tenant, landlord’s liability was governed by OCGA § 44-7-14, and
OCGA § 51-3-1 did not apply). See also Motel Properties, Inc. v.
Miller, 263 Ga. 484, 486 n.6 (436 SE2d 196) (1993) (it is a “well-
established principle that where control over premises has been
relinquished to another, the owner . . . of those premises cannot be
held liable under OCGA § 51-3-1”); Crook v. Foster, 142 Ga. 715, 718
(83 SE 670) (1914) (because the defendant landlord was not in
possession of the premises where plaintiff’s decedent was injured, it
was not necessary to decide whether the decedent was a licensee on
the premises; the only question was whether landlord was liable for
7 In other words, a landowner’s liability under OCGA § 44-7-14 derives
from his status as a “landlord,” but his liability under OCGA § 51-3-1 derives
from his status as an “owner or occupier of land.” See Langley, 307 Ga. at 326
(“The relationship between an owner and an invitee is separate from the
relationship between a landlord and a tenant. Those relationships involve
distinct statutory duties . . . even though a person’s status as a tenant may also
make that person an invitee to the property.”). By its terms, OCGA § 44-7-14
imposes no duty on the tenant, but the tenant may be liable under OCGA § 51-
3-1 for defects on premises possessed or “occupie[d]” by the tenant.
15
defective construction or failure to repair under predecessor to
OCGA § 44-7-14).
(b) Decisional Law Relating to Premises Liability
A number of decisions from the Court of Appeals on which the
parties in this case rely have failed adequately to consider or explain
the distinction between these two mutually exclusive sources of
liability—OCGA § 51-3-1 et seq. and OCGA § 44-7-14—which has
created some confusion with respect to premises liability law as it is
applied to landlords and tenants and which led the Court of Appeals
in this case astray. One early source of this confusion is Crossgrove
v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (118 SE 694) (1923).
There, the defendant railroad company employed a “section
foreman” and provided him with a furnished dwelling house as part
of his employment. Id. at 462. The foreman’s daughter, who resided
in the house, was injured when the steps in the house collapsed, and
she sued the company for damages. See id. The trial court
dismissed the lawsuit, but the Court of Appeals reversed. After
setting forth the general principles of premises liability, including
16
the distinction between invitees and licensees, the Court of Appeals
determined that the plaintiff’s complaint did not show that the
company extended “an express or implied invitation” to the
daughter. Id. at 464. And recognizing that a mere “licensee” status
would not form a basis for liability, the court reasoned that the
company could be liable only under a “theory that the relationship
between the plaintiff’s father and the defendant was that of landlord
and tenant.” Id.
The Crossgrove court then stated the following proposition:
“Members of a tenant’s family, his guests, servants, employees, or
others present by his express or implied invitation, stand in his
shoes, and are controlled by the rules governing the tenant as to the
right of recovery for injuries arising from failure to keep the
premises in repair.” Id. To support this proposition, the Court of
Appeals cited three cases from this Court that dealt with an out-of-
possession landlord’s liability under the predecessor statute to
17
OCGA § 44-7-14.8 Based on this reasoning, the Crossgrove court
ultimately concluded that the lawsuit could proceed under the
landlord-tenant theory of liability because the complaint sufficiently
alleged a landlord-tenant relationship between the plaintiff’s father
and the company. See Crossgrove, 30 Ga. App. at 465-466.
Crossgrove’s statement about guests standing in the tenant’s
“shoes” applied under the facts of that case to determine an out-of-
possession landlord’s liability under what is now OCGA § 44-7-14. 9
But in later cases, the Court of Appeals cited this “stands-in-the-
shoes” proposition in a different statutory context: assessing a
landlord’s premises liability under OCGA § 51-3-1—that is, liability
for injuries that arose from dangers present in the common areas of
an apartment building or complex of which the landlord is in
8 See Ross v. Jackson, 123 Ga. 657, 659 (51 SE 578) (1905); Crook, 142
Ga. at 719; Ocean S.S. Co. v. Hamilton, 112 Ga. 901, 903 (38 SE 204) (1901).
9 We express no opinion as to whether Crossgrove was correct in that
regard. It appears that Crossgrove was elaborating on our statement in Ross
that under the predecessor to OCGA § 44-7-14, a landlord would be
“answerable to the tenant, or to any one lawfully on the premises by invitation
of the tenant.” See also Crook, 142 Ga. at 718 (under predecessor to OCGA
§ 44-7-14, landlord “‘is liable in damages to a person who receives injury while
lawfully upon the premises’”) (quoting Ross).
18
possession. See Paul v. Sharpe, 181 Ga. App. 443, 444-445 (352
SE2d 626) (1987) (citing the stands-in-the-shoes proposition where
plaintiff-visitor was injured by a defective railing on a bridge in the
common area of an apartment complex); Rothberg v. Bradley, 85 Ga.
App. 477, 481, 483-485 (69 SE2d 293) (1952) (referring to the
proposition where plaintiff-visitor was injured after falling into an
unguarded shaft on the roof of an apartment building that was used
as a common area). See also Scully v. Bd. of Regents of Univ. Sys. of
Ga., 332 Ga. App. 873, 875-876 (775 SE2d 230) (2015) (citing the
proposition where plaintiff-visitor was injured on a university
campus, outside a residence hall).
Crossgrove aside, the Court of Appeals has, in other cases,
referred to the invitee/licensee distinction—derived from the
language in OCGA § 51-3-1 et seq.—in circumstances where an
injury arose on tenant-possessed property and where the landlord’s
liability should have been premised on OCGA § 44-7-14 instead.
See, e.g., Silman v. Assoc. Bellemeade, 294 Ga. App. 764, 764-765
(669 SE2d 663) (2008) (stating that plaintiff was an invitee as to the
19
landlord, and that landlord could be liable to her under OCGA § 51-
3-1, even though plaintiff was injured on tenant-possessed property,
when the deck of a rented house collapsed)10; Hohnerlein v. Thomas,
186 Ga. App. 282, 282 (367 SE2d 95) (1988) (citing Rothberg for the
proposition that a tenant’s guest “is an invitee upon the premises of
the landlord,” even though plaintiff was injured by a defect on the
porch of a rented home).11
Another case that has improperly conflated the duties of
landlords and landowners is Brown v. Clay, 166 Ga. App. 694 (305
SE2d 367) (1983), which the Court of Appeals discussed in this case
10In Silman, the plaintiff also sued the tenants, so the Court of Appeals
was correct to assess the tenants’ liability under OCGA § 51-3-1 et seq. See
Silman, 294 Ga. App. at 764.
11 We recognize that there may be situations where someone described
as a “landlord” has not “fully parted with possession and the right of
possession,” OCGA § 44-7-14, in which case such “landlord’s” liability properly
would be analyzed under OCGA § 51-3-1 et seq. See generally OCGA § 44-7-1
(a) (“The relationship of landlord and tenant is created when the owner of real
estate grants to another person, who accepts such grant, the right simply to
possess and enjoy the use of such real estate either for a fixed time or at the
will of the grantor.”). Because the landlord would be in control of the rented
premises in that situation (along with his “tenants”), there would not
necessarily be a reason to limit the landlord’s ordinary duty to keep the
premises safe. See Lipham, 263 Ga. at 865. The cases cited above, however,
do not describe such circumstances.
20
and whose significance the parties fervently debate on appeal. In
Brown, the plaintiff was injured when he jumped from a second-
story window of a rooming house to escape a fire, and he sued the
landlord for “negligence in failing to provide safe premises for
tenants,” though the nature of the alleged defect, or where that
defect was located, is unclear from the opinion. See id. at 694-695.
The room in question was leased by a friend of the plaintiff, and the
friend allowed the plaintiff to stay there occasionally, albeit without
the knowledge or consent of the landlord, who had prohibited
tenants from having overnight guests. See id. at 695.
In affirming the grant of summary judgment to the landlord,
the Brown court first cited the stands-in-the-shoes proposition, and
then proceeded to analyze the case under OCGA § 51-3-1 et seq.,
stating that a guest of a tenant is an invitee if “the primary purpose
of the visit is of mutual benefit to the tenant and guest,” but that “a
landlord is liable to one injured while visiting a tenant for his (the
visitor’s) own personal advantage only for wilful or wanton injury to
the visitor, a licensee.” Brown, 166 Ga. App. at 694 (citations
21
omitted). The court then determined that the plaintiff was a
licensee because his stay at the rooming house was “for his own
convenience and not for the mutual benefit of the tenant.” Id.
(emphasis supplied).
Brown’s reasoning is flawed for at least two reasons. First, the
Brown court should have made clear where the alleged cause of the
injury lay—whether in an area possessed by the tenant or in an area
possessed by the landlord—because that fact determines the source
of the landlord’s liability: either OCGA § 44-7-14 (if possessed by a
tenant) or OCGA § 51-3-1 et seq. (if possessed by a landlord).
Second, the Brown court was wrong to suggest that the landlord’s
liability under OCGA § 51-3-1 et seq. depends entirely on the
relationship between the visitor and the tenant. Because liability
under OCGA § 51-3-1 is based on defects occurring on landlord-
possessed premises, as discussed above, such liability must be
determined by the visitor’s relationship with the landlord, even
though the tenant-visitor relationship may inform the landlord-
visitor relationship. See OCGA § 51-3-1 (imposing liability on an
22
“owner or occupier of land” who, “by express or implied invitation,
induces or leads others to come upon his premises for any lawful
purpose”) (emphasis supplied). That a guest would have been
deemed a licensee of the tenant on premises possessed by the tenant
(as was the case in Brown) does not resolve the question of whether
the guest was a licensee of the landlord on landlord-possessed
premises. 12
3. Analysis
Having reviewed the relevant background principles of
premises liability and the historical patchwork of sometimes-
misguided decisional law in this area, we now turn to the question
at hand: whether there was “slight” evidence presented at trial that
Callens was a licensee, so as to warrant a jury instruction on
licensees. See Daly, 308 Ga. at 833. Plaintiffs contend that there
was no such evidence and insist that Callens was either an invitee
12 While we disapprove of the reasoning in Brown and the other cases
cited above that have conflated the duties or liabilities of landlords and
landowners, we express no opinion as to whether the ultimate conclusions of
those cases were correct.
23
or a trespasser. They argue that Callens was a guest of the tenant
(Jones), and that a “social guest” of a tenant generally is an invitee
of the landlord—just as the tenant herself is an invitee of the
landlord—because the guest of a tenant “stands in the shoes” of the
tenant with regard to the duty owed by the landlord. Defendants
respond that, among other things, the stands-in-the-shoes principle
does not apply in cases brought under OCGA § 51-3-1 et seq. and
that social guests, like Callens, are presumptively licensees under
Georgia law, absent evidence of an identifiable mutuality of interest
with the landlord.
As an initial matter, there is no dispute that Callens was killed
due to criminal activity that took place in a parking lot—a common
area of the apartment complex—and that the source of the
Defendants’ liability is OCGA § 51-3-1 et seq. as a result. See
Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 785 (482 SE2d 339)
(1997) (a landlord’s liability for criminal attacks on its premises
“must be predicated on a breach of duty to ‘exercise ordinary care in
keeping the premises and approaches safe.’”) (quoting OCGA § 51-3-
24
1); FPI Atlanta, L.P. v. Seaton, 240 Ga. App. 880, 882 (524 SE2d 524)
(1999) (“The landlord’s liability for third-party criminal conduct
arises under OCGA § 51-3-1 . . . .”). For this reason, and contrary to
the Plaintiffs’ argument, the stands-in-the-shoes principle
announced in Crossgrove has no bearing in this case. As discussed
above, that principle originated in the context of landlord-tenant
liability under the predecessor to OCGA § 44-7-14. And even if that
principle is sound in the context of OCGA § 44-7-14, we are aware of
no cases (and Plaintiffs offer none) in which this Court has extended
it to premises liability under OCGA § 51-3-1, and we see no reason
to do so here—especially since nothing in the text of OCGA § 51-3-1
et seq. sets forth such a principle. See generally Fed. Deposit Ins.
Corp. v. Loudermilk, 305 Ga. 558, 562 (826 SE2d 116) (2019) (stating
that “a statute draws its meaning from its text” and setting forth
other principles of statutory interpretation) (citation and
punctuation omitted). Because the stands-in-the-shoes principle
does not apply in this case, Callens was not automatically an invitee
of the landlord simply because he was Jones’s guest.
25
In the same vein, characterizing Callens as a “social guest” of
Jones also would not automatically make Callens a licensee of
Defendants, as the Court of Appeals below suggested. As discussed
above, in assessing the landlord’s liability to a visitor on landlord-
occupied premises, the touchstone is not the visitor’s relationship to
the tenant, but his relationship to the landlord (i.e., the “owner or
occupier of land”). See OCGA § 51-3-1. And the proper inquiry for
evaluating that relationship is assessing “whether or not the owner
or occupant of the premises will receive some benefit, real or
supposed, or has some interest in the purpose of the visit.”
Anderson, 214 Ga. at 169 (emphasis supplied). See also McGarity v.
Hart Elec. Membership Corp., 307 Ga. App. 739, 742 (706 SE2d 676)
(2011) (“[T]he owner or occupier has a duty not to wilfully or
wantonly injure a licensee . . . .”) (emphasis supplied). Here, Jones
was not the “owner or occupier” of the premises where Callens was
attacked—Defendants were—and so the dispositive factor is
26
whether Defendants received some benefit or had some interest in
Callens’s presence on the premises. 13
13 To put a finer point on it, Defendants’ interest in Callens’s presence in
the parking lot was not the same as Jones’s interest in his presence in her
apartment. A person who comes to a tenant’s apartment for a social visit will
in most cases be an invitee of the landlord in the common area of an apartment
complex, because the landlord generally “receive[s] some benefit” or has “some
interest” in the guest’s presence on the property. See Anderson, 214 Ga. at
169. After all, a landlord of an apartment complex is in the business of
providing residences to tenants, and a common and natural use of a residence
is to invite social guests; it is thus normally in the landlord’s interest to lease
residences that can be used to entertain social guests, rather than to limit their
use by prohibiting or discouraging guests. See Reardon v. Shimelman, 128 A
705, 706 (Conn. 1925) (a “right of ingress and egress” for lawful guests of
tenant “is essential, not merely to the enjoyment of the rented premises by the
tenants, but also to the renting of them by the landlord; it is part of that for
the use of which he is paid, and it exists for the mutual benefit of landlord and
tenants alike”); Stanley v. Town Square Co-op., 512 NW2d 51, 54 (Mich. App.
1993) (the landlord receives “some pecuniary benefit” from the visits of
tenant’s social guests because “[p]art of the rent paid to the landlord is the
consideration for giving to the tenants the right to invite others onto the
property”).
Similarly, in the commercial context, the customer of a business is
typically an invitee of the business owner, and our courts generally have
agreed that a guest or companion of a customer may also be considered an
invitee on business premises, even though the guest has no business
relationship with the owner or proprietor. See Anderson, 214 Ga. at 169 (child
who accompanied his father into the bakery shop was an invitee of the
shopkeeper; bringing a child into a shop “is a customary use of the premises
and is conduct on the part of parents which the occupant was bound to have
known,” and the shopkeeper gained an opportunity to make a sale by allowing
the father to bring his child inside); Esposito, 334 Ga. App. at 437 (jury was
authorized to find that plaintiff was invitee of the nursing home when she was
injured while visiting her husband at the home; there was evidence that
plaintiff “provided much of the daily care for her husband, which obviously
27
Importantly, we need not decide whether Callens could be
considered a social guest of Jones or whether being a social guest
would make him an invitee or a licensee. That is because the limited
question in this case is whether “slight” evidence was presented at
trial that Callens was a licensee, irrespective of whether there was
lightened the burden of the nursing home staff” and that the home’s “own
director of nursing considered visitors to be customers”); Freeman v. Eichholz,
308 Ga. App. 18, 22 (705 SE2d 919) (2011) (visitor of a prison inmate was
invitee of the prison because “visitation between inmates and their authorized
and properly admitted visitors benefits both the visitor and the defendants so
that a ‘mutuality of benefit’ exists”). Compare Jones v. Asa G. Candler, Inc.,
22 Ga. App. 717, 717 (97 SE 112) (1918) (plaintiff was a licensee of the owner
of an office building—where she was injured in the hallway—because
undisputed facts showed that the plaintiff was visiting a business tenant inside
the building to solicit a donation, as opposed to transacting business) (citing
Plummer v. Dill, 31 NE 128, 128 (Mass. 1892) (plaintiff was licensee inside
office building because she “did not go there to transact with any occupant of
the building any kind of business in which he was engaged, or in the
transaction of which the building was used or designed to be used”)).
On the whole, these cases illustrate how the mutuality of benefit between
a tenant’s social guest and a landlord or a customer’s companion and a business
owner typically result in the guest or companion being invitees of the landlord
and the business owner, respectively. But they do not control the different
(and dispositive) issue here: whether there was at least slight evidence that a
person who visits a tenant in an apartment continually—not once, a few times,
or even regularly—and who was at the same time not prohibited from visiting
the tenant, exceeded the scope of any invitation the landlord expressly or
impliedly extended to him such that he was neither an invitee nor a trespasser.
28
also evidence presented that Callens was a different type of visitor.14
And here, we conclude that at least slight evidence was presented at
trial from which the jury could have concluded that Callens was a
licensee with respect to the landlord.
To begin, we acknowledge that some evidence was presented
that Callens was an invitee (and not a licensee) of the landlord,
independent of any status as a social guest. That evidence included
Jones’s testimony, which indicated that the apartment-complex
management expressly (or at least implicitly) authorized Callens to
reside on the premises, and that this permission directly benefited
the Defendants by inducing Jones to lease a three-bedroom
apartment. But the jury did not have to credit all (or any) of Jones’s
14 Indeed, even assuming (without deciding) that a “social guest” of a
tenant is an implied invitee of the landlord—at least where the landlord has
not prohibited such social guests altogether—the jury could have found, based
on the evidence presented at trial, that Callens was not a “social guest” at all.
For example, the jury could have viewed the evidence as demonstrating that
Callens exceeded the scope of any implied invitation to visit Jones’s apartment
by staying far longer than any foreseeable “social guest” the landlord would
have reasonably anticipated. But even a conclusion that Callens was not a
social guest still would not answer the question of which type of visitor he was
under OCGA § 51-3-1 et seq., and thus what duty the landlord owed him in
this case.
29
testimony, including testimony that suggested Callens was a full-
time resident of the apartment or that management knew about his
residence there. See Montgomery v. Barrow, 286 Ga. 896, 899 (692
SE2d 351) (2010) (“[I]t is a jury’s prerogative to accept or reject, in
whole or in part, the evidence submitted . . . .”); Hines v. State, 254
Ga. 386, 387 (329 SE2d 479) (1985) (“The jury is entitled to believe
a part of the testimony of a witness and disbelieve other parts.”)
(citation and punctuation omitted).
On the other hand, evidence that Callens was not listed on the
rental application did not necessarily establish that he was a
trespasser. Testimony showed that Defendants had a “policy” that
every adult who resides in a rented apartment should be listed on
the lease. But a “policy” can mean something less than an absolute
mandate. See Black’s Law Dictionary (11th ed. 2019) (defining
“policy” as a “standard course of action that has been officially
established by an organization, business, political party, etc.”). And
the lease agreement itself—including the provision that “this
apartment shall . . . be occupied only by persons named in resident’s
30
application to rent”—on its face was not binding on Callens, who had
not signed it. In any event, the jury could have concluded that the
Defendants chose not to enforce the named-occupant provision. 15
Thus, the lease agreement does not necessarily render Callens a
trespasser in the parking lot where he was killed.
Given all of the above, we cannot say that the only plausible
view of the evidence presented at trial was that, at the time Callens
was robbed and shot in the apartment parking lot, Defendants had
expressly or implicitly invited Callens to be on the property or,
conversely, prohibited him from being there. And that left space for
at least “slight” evidence that Callens met all of the definitional
requirements of a “licensee” under OCGA § 51-3-2, including that he
was “permitted, expressly or impliedly, to go on the premises merely
for his own interests, convenience, or gratification.” See Daly, 308
15 Indeed, the lease agreement stated that, if the tenant “allows
unauthorized persons access to the Apartment or Premises in violation of this
Lease,” the tenant “shall be in default hereunder, and, Management at its sole
option, may terminate this Lease by written notice to Resident.” (Emphasis
supplied.) We disapprove of Gomez v. Julian LeCraw & Co., 269 Ga. App. 576(604 SE2d 532) (2004), to the extent it suggests that, as a matter of law, a
person is always a trespasser under OCGA § 51-3-3 if he resides with a tenant
in an apartment in violation of the lease.
31
Ga. at 834 (“[I]f there was slight evidence supporting the
instruction[,] . . . it is irrelevant whether we find that slight evidence
persuasive in the face of contrary evidence; that question was
reserved exclusively for the jury.”).
More specifically, in light of all of the evidence presented at
trial, the jury was authorized to conclude that the rental agreement
and management policy discussed above indicate that the
Defendants had no interest in having people (such as Callens) live
in the apartment complex and continually use the common areas
without signing the lease or being listed on the rental application
(as opposed to just visiting as guests). And the jury could have
inferred from Jones’s testimony that Defendants never told Callens
he could not be on the property and did not otherwise prohibit him
from being there, while also discrediting other aspects of Jones’s
testimony that could have constituted evidence that Callens was an
invitee. At least slight evidence was presented that Callens’s
extended stay in Jones’s apartment and his concomitant use of the
common areas occurred with the Defendants’ permission but
32
“merely for his own interests,” see OCGA § 51-3-2 (a) (3), and, as a
result, the jury would have been authorized to conclude that Callens
was a licensee with respect to Defendants. Accordingly, the trial
court did not err in instructing the jury on the law concerning
licensees, 16 and although we disagree with the Court of Appeals’s
reasoning on this issue—and in particular its suggestion that a
social guest of the tenant generally is a licensee of the landlord—we
affirm its judgment. See Nordahl v. State, 306 Ga. 15, 27 (829 SE2d
99) (2019) (affirming the judgment of the Court of Appeals under the
“right-for-any-reason doctrine”).
Judgment affirmed. All the Justices concur, except Boggs,
Peterson, and Ellington, JJ., who dissent.
16 We note, however, that the pattern jury charge on licensees—which
suggests that “business relations with the owner of the premises” is part of the
“general test” for licensees—may not apply as readily to visitors of tenants, as
opposed to customers of businesses. Accordingly, to the extent the evidence on
retrial supports a licensee charge, the trial court may consider tailoring the
pattern charge to better fit that evidence. See Anderson, 214 Ga. at 169;
Esposito, 334 Ga. App. at 437.
33
PETERSON, J., dissenting.
In a thoughtful and scholarly opinion, the majority correctly
explains the distinction between the two primary sources of landlord
liability ⸺ OCGA § 51-3-1 et seq. and OCGA § 44-7-14 ⸺ that have
often been conflated in our courts. And the majority correctly
concludes that there was evidence supporting a finding that
Franklin Callens was an invitee or trespasser relative to the
Defendants. But the majority also concludes that there was slight
evidence showing that Callens could have been a licensee, and thus
it was proper to instruct the jury on licensee law. In my view, if Asia
Jones had authority from the landlord to host Callens as she did, he
was an invitee. If she did not have that authority, Callens was a
trespasser unless he had separate permission from the landlord for
reasons unrelated to Jones (which might have made him a licensee).
There is no evidence of such permission from the landlord to Callens,
and so I respectfully dissent.
The authority to host guests in your home is for many people a
key element of what it means for a home to be yours. When you rent
34
a home, the landlord can impose restrictions on your authority to
host guests. But when a landlord imposes such restrictions, some
potential renters will pass the property by and rent from a different
landlord who offers more freedom. The fewer the potential renters,
the more difficult the landlord will find it to rent the property at the
desired amount. Accordingly, a landlord who allows a renter to host
guests in the rented property generally stands to benefit financially
from that arrangement.
The majority acknowledges the truth of this reasoning. And,
indeed, in our first case to consider a similar issue under what is
now OCGA §§ 51-3-1 and 51-3-2, we employed virtually identical
reasoning, concluding that it was “obvious” that a store owner would
receive a benefit from permitting an invitee’s guest to be present.
See Anderson v. Cooper, 214 Ga. 164 (104 SE2d 90) (1958) (on a
general demurrer, which was the equivalent of the modern motion
to dismiss, drawing common-sense inferences to hold that a child
accompanying parent into shop was an invitee because parents
would not enter shop at all if not allowed to bring their children, and
35
shop owners benefit from more customers).
In my view, this generally means that when renters are
allowed to host guests, the guests are thus implicitly invited by the
landlord (who has already benefitted financially by extending the
implicit invitation). Accordingly, those guests are invitees of the
landlord, who thus owes them the duty imposed by OCGA § 51-3-1
as to premises the landlord still possesses (like the parking lot at
issue in this case). And when renters are not allowed to host guests,
any guests they host despite the ban are trespassers.
What this reasoning does not generally allow is a third
category of guest as licensee. Either the renter is allowed to host the
guest, or the renter is not allowed to host the guest. Absent at least
slight evidence of some separate permission from the landlord to the
guest for reasons unconnected to the renter, the guest’s presence is
permissible or not based entirely on the authority the landlord has
granted the renter. And if the renter is allowed to have guests, but
the guest exceeds the scope of the landlord’s implied invitation, then
the guest is a trespasser. The majority points to no evidence, slight
36
or otherwise, that the landlord gave Callens permission to be
present in the parking lot for reasons unconnected to Jones. In the
absence of such evidence, I see no basis for a licensee charge.17
Accordingly, I respectfully dissent.
I am authorized to state that Justice Boggs and Justice
Ellington join in this dissent.
17 I agree with the majority that the reasoning of Brown v. Clay, 166 Ga.
App. 694 (305 SE2d 367) (1983), was wrong, although for a different reason.
The Court of Appeals clearly stated in Brown that the landlord prohibited
overnight guests. See id. at 695. Accordingly, the renter lacked authority to
host the guest, and the guest was a trespasser, not a licensee.
I also note that the pattern jury instruction on licensee law, while
correctly stating general principles of law, is the wrong instruction to give even
under the majority’s theory of the case. The instruction’s focus on whether
there was a business relationship between the guest and the landlord does not
acknowledge the implied invitation most guests have from the landlord by
virtue of the landlord’s authorization to the renter to host guests. This would
likely mislead a jury into finding many guests to be licensees when they should
properly be understood as invitees. The majority’s observation that the trial
court “may consider tailoring” the charge is a good one, but does not go quite
far enough.
37