Cowart v. Schevitz , 335 Ga. App. 715 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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
February 15, 2016
In the Court of Appeals of Georgia
A15A2036. COWART v. SCHEVITZ. BO-100
BOGGS, Judge.
In this trip and fall action, the defendant, Joseph Cowart, moved for summary
judgment, asserting that the plaintiff, Ada Schevitz failed to exercise ordinary care
for her own safety, and that pursuant to OCGA § 44-7-14 he is an out-of-possession
landlord and not liable to third persons for the use of the property by his tenant. The
trial court denied Cowart’s motion but certified its decision for immediate review, and
this court granted his application for interlocutory appeal. Because Cowart was
entitled to summary judgment, we reverse.
“Summary judgment is appropriate when no genuine issues of material fact
remain and the movant is entitled to judgment as a matter of law. On appeal, we
review the grant or denial of summary judgment de novo, construing the evidence and
all inferences in a light most favorable to the nonmoving party.” (Citation and
punctuation omitted.) Seki v. Groupon, Inc., 333 Ga. App. 319 (775 SE2d 776)
(2015). So viewed, the evidence showed that Cowart leased commercial property he
owned to the operators of a restaurant. In October 2010, the lease was assigned to the
operator of Asian Buffet through a note on the last page of the lease that it was being
assigned and accompanying signatures of the original lessees, the new assignee, and
Cowart.
On January 30, 2011, after dining at the restaurant with her family, Schevitz
walked out of the exit door, stepped down off of the sidewalk near the bottom of a
ramp and onto the parking lot, fell, and was injured. The ramp had no handrails.
Schevitz’s expert averred that the ramp was required by the building code to have
railings and that had the “code-required railings been in place (which would have
both assisted Ms. Schevitz in walking down ramp and, more importantly, have
indicted[sic] a drop-off between the exit area and the ramp), Mrs. Schevitz’s fall
would more than likely not have occurred.”1 It is undisputed that Schevitz was not
1
Schevitz deposed that she stepped off of the sidewalk and onto the even
pavement of the parking lot, and indicated on the photograph of the entry and exit to
the restaurant that she stepped onto an area at the bottom of the ramp. She stated
further that she was aware that there was a step-up from the parking lot onto the
sidewalk from her previous visit to the restaurant two weeks before her fall.
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walking down the ramp when she fell. She testified that she did not “see the step and
the drop-off” because she “wasn’t looking for it.” The photographs in the record
reveal that the ramp provides access to the sidewalk in front of the restaurant from the
parking lot as a replacement for the one-step up onto the sidewalk.
Schevitz filed a premises liability claim against Cowart and Asian Buffet
seeking medical expenses and the costs of litigation. She later settled her claim
against Asian Buffet. After some discovery, Cowart moved for summary judgment,
and the trial court denied it without comment.
On appeal, Cowart first argues that because he is an out-of-possession landlord,
he is not liable to Schevitz. Schevitz counters that Cowart is not an out-of-possession
landlord because he “retained the type of control over the property that would deem
[him] a typical, in-possession landlord.” She asserts that Cowart’s liability is therefore
governed by OCGA § 51-3-1 (duty of owner or occupier of land to invitee). The lease
agreement provided that the lessee would maintain the physical condition of the
property and perform all maintenance. It also provided that the lessee could relocate
the bathrooms, but any additional physical changes were to be approved by the lessor
and paid for by the lessee, and that the “[l]essor has the right at any time to inspect
the property.” We have held that
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landlords still fully part with possession of leased premises when they
retain limited entry or inspection rights for landlord-related purposes.
Such limited rights do not evidence such dominion and control of the
premises so as to vitiate the landlord’s limited liability imposed by
OCGA § 44-7-14 and replace it with the liability imposed by OCGA §
51-3-1. However, if the landlord undertakes to inspect the property, he
has a duty to repair any unsafe conditions which should have been
discovered in the inspection. To say otherwise would be to impose
absolute liability upon landlords for all defective conditions which could
have been repaired before the injury.
(Citations and punctuation omitted.) Watts & Colwell Builders, Inc. v. Martin, 313
Ga. App. 1, 6 (3) (720 SE2d 329) (2011). Schevitz contends that because the lease
required Cowart to approve of any physical changes, he maintained control of the
premises as would an in-possession landlord. But this court has previously rejected
this argument. See Ray v. Smith, 259 Ga. App. 749, 749-750 (577 SE2d 807) (2003).
The uncontroverted evidence here showed that Cowart parted with possession of the
leased premises though retaining the right of inspection. He is therefore an out-of-
possession landlord. See Watts, supra.
Cowart argues that as an out-of-possession landlord, he cannot be liable. The
tort liability of an out-of-possession landlord is governed by OCGA § 44-7-14. That
Code section provides:
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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.
Generally, “[t]he liability of a landlord for defective construction exists only in cases
where the structure is built by him in person or under his supervision or direction.”
(Citation omitted.) The Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504)
(1988); see also Rainey v. 1600 Peachtree, LLC, 255 Ga. App. 299, 301-302 (565
SE2d 517) (2002) (general rule of OCGA § 44-7-14 does not apply where landlord
did not construct premises with defective step). However, the Georgia Supreme Court
in Flagler, supra, created an exception to this rule:
If a building were defectively constructed by a predecessor in title, and
the landlord knew or by the exercise of reasonable diligence could have
known of its improper construction before the tenancy was created, he
would be answerable to the tenant, or to any one lawfully on the
premises by invitation of the tenant for injuries sustained by reason of
his failure to put the premises in a safe condition, if the person
sustaining the injuries could not have avoided the same by the exercise
of ordinary care.
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(Citation and emphasis omitted.) 258 Ga. at 337 (2).
With regard to defective construction by a predecessor in title, our court has
held that an out-of-possession landlord:
may be held liable only for those structural defects that would be
discovered during a pre-purchase building inspection. Such
out-of-possession landlord is not liable for all defects because ordinary
care in the fulfillment of the landlord’s duty to keep the premises in
repair does not embrace an affirmative duty to make such an inspection
of the premises as will disclose the existence of any and all latent defects
which may actually exist therein. This would be but to place upon the
landlord an absolute duty to rent premises free from latent defects. It
follows that a proper application of the landlord’s duty to inspect
premises does not, under any theory, result in making the landlord liable
for a latent defect in the premises, simply because it existed at the time
of the lease.
(Citation, punctuation and footnote omitted.) Rainey, supra, 255 Ga. App. at 301-302.
The evidence here showed that the ramp was not built by Cowart or Asian
Buffet but by a prior lessee who did not obtain Cowart’s approval before
construction. Because the ramp was not constructed by Cowart nor constructed under
his supervision or direction, liability is precluded under OCGA § 44-7-14. In an
attempt to fall within the Flagler exception, Schevitz points to Cowart’s deposition
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testimony that he was aware of the ramp on the occasions he entered the restaurant
to pick up rent payments. But we have held this exception inapplicable and concluded
that “there is no exception[,] where . . . the out-of-possession landlord merely retained
the right to approve the tenant’s construction of an improvement to the premises.”
Cowart v. Crown American Properties, 258 Ga. App. 21, 24 (3) (572 SE2d 706)
(2002). Merely viewing a ramp while picking up rent simply cannot be equated with
a pre-purchase building inspection.
Even if the predecessor-in-interest exception of Flagler did apply here, Cowart
would still be entitled to summary judgment. While Cowart undoubtedly knew about
the ramp and sidewalk, that they constituted a structural defect was not obvious to
him, unlike the alleged defect in Flagler, supra, in which the exception to OCGA §
44-7-14 was first created. 258 Ga. at 335 (concealed precipice with no barracade or
warning and adjacent to a parking lot; plaintiff fell 70 feet to his death). Rather, this
case is similar to Rainey, supra, in which the plaintiff fell on a step that she described
as unsafe upon exiting a building and her expert testified that the uneven steps and
small landing did not comply with the building code. 255 Ga. App. at 299-300. We
explained there that the Flagler exception is viable only where a plaintiff can
establish the landowner’s superior knowledge of the perilous condition. Id. at 301.
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We concluded due to nature of the alleged defect (steps unequal as to height, length
and width and landing not the same width as door as required by the building code),
the case did not come within the narrow exception created by Flagler and rejected the
plaintiff’s expert engineer’s opinion that the alleged defect caused the fall. Id. at 302.
We explained that “[t]he standard to which we hold the out-of-possession landlord
is not what defect could have been discovered after a fall -- with the benefit of
hindsight and an examination of the specific scene -- but what defect would have
been discovered during a routine building inspection.” Id.
There is no evidence to show that Cowart knew that the building code required
a rail for the ramp prior to Schevitz’s injury. He did not inspect it or observe the
manner in which it was constructed, and there was no evidence that the alleged defect
was one that would have been discovered routinely. See Ray v. Smith, 259 Ga. App.
749, 751 (577 SE2d 807) (2003) (although landlord was aware of ramp, he did not
inspect or observe its construction, and was therefore not liable for injuries caused by
dangerous condition of which he had no notice). Liability is therefore precluded
under the general rule of OCGA § 44-7-14, and Cowart is entitled to summary
judgment.2
2
Cowart’s remaining arguments are rendered moot by our reversal here.
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Judgment reversed. Doyle, C. J. and Phipps, P. J., concur.
9