DocketNumber: A96A0912
Citation Numbers: 476 S.E.2d 831, 223 Ga. App. 60
Judges: Blackburn, Beasley
Filed Date: 10/3/1996
Status: Precedential
Modified Date: 10/19/2024
concurring specially.
1. I concur in the judgment but not in the designation of the Atlanta Housing Authority as an “owner” of the residence which it approved for rental by a private owner to Jefferson’s mother, as that term is used in Atlanta Ordinance § 11-3032.1. Nor is it necessary as a matter of statutory construction principles to construe the term so broadly. Doing so would mean that AHA was obligated to “provide a smoke detector to be placed in accordance with the manufacturer’s instructions for each dwelling unit prior to any sale, lease or rental of such unit.” Ordinance § 11-3032.1 (b).
As the majority states, the ordinance defines “owner” for the purposes of the section on smoke detectors as: “Any person, corporation or other legal entity who has legal title or control, in whole or in part, of any real property in the City of Atlanta.” Ordinance § 11-3032.1 (a) (2). In acting as the approving agency for the federal Section 8 program, AHA does not have control of the third party’s rental property. All it can do is withhold approval of it and thereby preclude Section 8 funding, until.the party with control brings it up to Code, i.e., provides a smoke detector.
Plaintiff does not contend that AHA was required to provide a detector. In fact, he makes that clear in his appellate brief: “Plaintiff is not claiming that AHA had a duty to ‘provide’ (and therefore
The alleged breach of statutory duty was in approving the home for rental under a federal program which provided the rent when the home did not comply with the law. The whole purpose of the minimum quality standards requirement before federal funds are available is to assure that housing for poor people is “decent, safe and sanitary.” 42 USC § 1437; 42 USC § 1437 f (a); 24 CFR § 882.102. Landlords who wish to take advantage of the secure and market-based Section 8 source of rent income must meet the standards imposed by law, in this case the city ordinance, and it is the duty of the AHA pursuant to its agreement with the United States Department of Housing and Urban Development and OCGA § 8-3-7 to assure compliance before federal funds are available. AHA has the authority to hold out the carrot, but it may not give the carrot before fulfilling its own responsibility pursuant to federal law to assure that the premises owner to whom the rent will be paid has furnished a decent, safe and sanitary dwelling. In this instance, the AHA has not shown that it approved a house that met a local ordinance requirement for a smoke detector, which is a safety device; yet it authorized the payment of Section 8 funds.
2. As to proximate cause and AHA’s claim of remoteness as a matter of law in this summary judgment posture of the case, “ ‘(t)he inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.’” Collie v. Hutson, 175 Ga. App. 672, 673 (334 SE2d 13) (1985), quoting Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865) (1983).
The governing statute is OCGA § 51-12-9: “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.” Negligence is predicated on what should have been anticipated; a tortfeasor is responsible for a consequence which is “probable, according to ordinary and usual experience . . . which human foresight can foresee.” Jacobs v. Taylor, 190 Ga. App. 520, 526 (379 SE2d 563) (1989); Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982); Moses v. Chapman, 113 Ga. App. 845 (1) (149 SE2d 850) (1966). I agree that in this case the element of proximate cause is a jury question.