DocketNumber： A06A0108
Citation Numbers： 633 S.E.2d 426, 280 Ga. App. 106, 2006 Fulton County D. Rep. 2118, 2006 Ga. App. LEXIS 765
Judges： Barnes, Johnson, Blackburn, Miller, Ellington, Bernes, Andrews
Filed Date： 6/23/2006
Status： Precedential
Modified Date： 10/19/2024
Helen Marie Mason rented land in Smokecreek Community from Chateau Communities, Inc., upon which she lived in a mobile home that she owned. She sued Chateau for premises liability damages resulting from a rape, asserting that the landlord breached its duty of care to keep the premises safe from reasonably foreseeable unlawful acts. She also sued her attacker, Terry Lee Goolsby, for battery and punitive damages. Chateau answered, denying liability, and moved for summary judgment following discovery. The trial court granted summary judgment to both Chateau and Goolsby, and Mason appeals. For the reasons that follow, we reverse.
1. Mason argues that the trial court erred in granting summary judgment to Goolsby, who had no motion pending before the court. Chateau agrees that the trial court erred in that regard. Although the trial court subsequently amended its summary judgment order to delete reference to Goolsby, the court was without jurisdiction to do so at the time because Mason’s appeal was pending in this court. Dalton American Truck Stop v. ADBE Distrib. Co., 146 Ga. App. 8, 11 (4) (245 SE2d 346) (1978). Thus we reverse that portion of the original order granting summary judgment to Goolsby.
2. After reviewing the record and the law, the trial court held that
there are no disputes as to genuine issues of material fact on the issue of Defendants’ duty to provide security to Plaintiff. As the evidence is undisputed that Defendants were not required to provide security for the tenants of Chateau Communities, Inc., and therefore, no act of Defendants caused or contributed to any damage to Plaintiff, summary judgment in favor of Defendant Chateau Communities, Inc. ... is therefore granted.
The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, a court must give the opposing party the benefit of all reasonable doubt, and the evidence and all inferences and conclusions therefrom must be
Viewed in this light, the evidence shows that Chateau Communities, Inc. is the property manager for the Smokecreek Community, which is owned by CWS, Inc. Approximately 264 mobile homes are located in Smokecreek, and the residents own the homes and rent the lots. Homeowners are not allowed to rent out their homes, and guests may stay only 15 days consecutively and 30 days total in a year; if they stay longer, they must apply for permission and receive approval to become a resident. Long-term guests must be registered with the office, and the “management reserves the right to terminate the Tenancy At Will of any Resident whose guest(s) do not comply with these covenants.” Management also reserves the right to terminate the tenancy of a resident for any violations of the covenants or misstatements in the residency application. Before anyone is allowed to buy a mobile home in Smokecreek, they must sign permission for credit and criminal background checks, prove they have made timely rental or mortgage payments for the previous 24 consecutive months, prove they have a minimum of two years’ employment history in the same field earning at least a minimum established amount, and all residents must obtain the Chateau community director’s approval before buying their home. Residents agree to abide by particular rules and by the community covenants.
The community covenants control numerous aspects of the residents’ lives, by, for example, forbidding residents to erect fences except those approved “in writing by the Community Director”; own dogs over a certain size or of certain breeds; install a doghouse outside; hang laundry or store tools, toys, or lawn care equipment so that they are visible outside; perform anything but minor repairs on motor vehicles; or acquire swing sets, trampolines, pools, or basketball goals. The speed limit inside the community is 15 mph and street parking is not allowed. The covenants further provide that
[a] 11 dangerous instruments, including but not limited to, guns, BB guns, paint guns, air guns, as well as sling shots, bows and arrows, and other dangerous instruments are not permitted in the Community. Throwing dangerous instruments including, but not limited to rocks, knives, eggs, sticks, and any other items is strictly forbidden.
A former senior regional manager for Chateau confirmed that the community covenants state that “[a]ll reasonable means have been taken to insure that your residency is pleasant and enjoyable.” If a neighbor told a manager or the manager himself, who lived on the premises, saw that someone was living in the community who was not approved, management would ask them to fill out an application. A letter from the company president included in the employees’ safety manual states that “Chateau Communities, Inc. is committed to the safety of its employees, residents, and guests.” The manual states that “[sjafety is one of the highest priorities at Chateau Communities,” and company policy provides that the community manager must complete an incident report and send it to risk management each time an incident or accident occurs. Some communities have security guards, and the decision to have one was made by the regional manager and division president based on their review of current and previous criminal activity on the property. Security guard pay comes from the community budget, and the company rewarded managers for keeping their operating expenses below budget.
Mason bought her mobile home from Chateau in August 2002, and rented the lot on which the mobile home was located. She lived there with her two children, who were eleven and twelve at the time. The manager told her it was the safest place to live, that mostly single women, children, and elderly people lived there, and that this was a safe environment for children. She asked about security, and the manager responded that the community was secure. Mason was concerned about safety because trailer parks are “usually considered not the best place,” but the manager told her there were no problems. Her street had one streetlight, and the area was “pretty dark,” although another light was added after her attack. She thought that more lighting might have made the community safer.
The evidence shows that Mason’s rape was preceded by an assault and another rape in the community by the same man. The first victim, S. P., reported to the community manager in early September 2002 that she woke up one night to find a man standing in her bedroom. He grabbed her breast and then left. While the manager reported the event to his company’s risk management division, he thought S. P. had been dreaming. After this incident, Mason called the manager and said she had heard from neighborhood children that S. P. had been hurt, but the manager assured her that S. P. was elderly
Rosa Estrada, who lived across the street from Mason and next door to Goolsby, testified that she moved to the community in 1998. Before Chateau took over the property management, the neighborhood was “one of the nicest places,” with good screening, security, and frequent police patrols at night. A policeman who was a friend of her son-in-law had been patrolling the area part-time, but after Chateau took over, the patrols stopped. When Estrada asked the new manager about it, he said that the community could not afford to pay for the patrols but that the county police would drive through the neighborhood on patrol. The new owners built new lots that brought in “all kinds of new people,” and the lot rental increased. Teenagers began gathering nearby, and she asked management to install more lighting because it was so dark and the existing lights were continually broken. Management said they would look into the lighting issue. When she heard about the first assault on S. R, she asked the manager about it, but he said that S. P. was hallucinating, and at 80 was “just a senile person that is imagining things happening.”
Two or three weeks after this first incident, a resident called the manager to tell him that many police were at S. P.’s trailer. The manager went down there, and an officer told him that S. P. had been assaulted. He discovered later that day that she had been raped, and he gave another resident permission to post bulletins about it. The manager then reported the incident to the company.
Estrada called the manager and asked him what he knew about the new couple living next door, and he said it was not a couple, only a single mother and her child living next door. Estrada insisted that a man lived there too, and she wanted to know if the manager had “run a report” on him before he moved in. Estrada explained that she had not only seen the man living there, at home all day long, but also the woman who previously lived there told her she sold her trailer to a young couple who were expecting a baby. The manager said he would call the resident and check it out. When Estrada asked him again about the man, the manager said he had left a message for the resident but had not heard back and would go personally and tell her to report whoever else was living there. Estrada thought the man was suspicious because he never went to work, drank all day, and when he first moved in, he was extremely rude to her husband so she wanted to know if the manager had checked him out before he moved in. She did not call the police herself and report her suspicions that the man, Goolsby, could be S. P.’s rapist, because she thought that she did not
Wayne Thomas, a Smokecreek resident since October 2002, is a retired Fulton County sheriffs deputy. He said that when he moved in, signs at the community entrance, clubhouse, and houses for sale advertised that Smokecreek was a “safe retirement community.” Before Thomas moved in, he asked the manager if he could provide security for the community in exchange for the lot rental fee, but the manager said he already had a security officer on the property day and night. The manager also said that Smokecreek was a retirement community. After S. P. was raped, Thomas reminded the manager that he said the community had security, and the manager said it did, as well as increased county police patrols in the area. The manager told residents at a subsequent neighborhood watch meeting that he had provided security and would provide more security in the form of more frequent county police patrols; however, many residents walked out of the meeting because they knew the property had no security.
On December 21, 2002 around 4:00 or 5:00 a.m., Mason heard a noise in her mobile home and got up to see where it came from. She went to the front door, then turned and saw Goolsby silhouetted behind her. She fought with him, but he dragged her into the bedroom, tied her hands, and raped hér. He told her-he had watched her for a long time. Afterward she managed to escape from him, and grabbed her car keys as she ran out the door. She drove to a nearby service station, where an employee called 911. The police transported Mason to a rape crisis center. She thought Goolsby entered through the front door, because when she returned to her trailer, she saw that it was damaged as if someone tried to pry it open, although the investigating detective thought Goolsby came in the back door which he said she must had not have locked correctly. She replaced the front door because it was “bent up and chewed up,” and outside the door the wooden part was broken out.
Estrada gave Goolsby’s name to the police when they canvassed the neighbors following Mason’s attack. The police subsequently arrested him at the trailer across the street from Mason, where the neighbor previously reported to management that he had been living. The manager testified that he now knew Goolsby had been living there, as Estrada said he was, although he said the resident of the trailer where Goolsby was living told him when he asked earlier that Goolsby was just visiting his child from time to time. Mason identified
Mason’s expert witness, a crime prevention analyst, testified that Chateau Communities managed the property in a manner that demonstrated a consistent pattern of inadequate crime prevention planning and inadequate security and safety management, in direct contradiction to their stated objectives. The company represented in its resident application forms that it controlled who lived in the community and that it performed criminal background checks of prospective residents. The operations manual directed Chateau employees to explain to residents that the company “works toward providing a safe living environment, . . . that we have an excellent relationship with local law enforcement officials.” The company exerts an extraordinary level of control over residents, including limiting certain personal safety measures such as fencing, dog size and breed, guns, and doghouses, but does not adequately compensate for these strictures by providing alternative security. The company did not avail itself of the free crime prevention survey service of the Gwinnett County Police Department, which includes a site survey and recommendations. Despite a consistently increasing crime rate of 150 percent in 2001-2002, management failed to establish a procedure to request information from local law enforcement about crime in the area. In contrast, crime in the Atlanta metropolitan area decreased 3.9 percent, and in the state of Georgia, 3 percent.
The expert witness testified that, while the manager acknowledged-the importance of informing residents of criminal activity, he had no procedure in place to do so, and even if residents learned of crimes in their community from other sources, those sources may be replete with rumor and innuendo. Chateau failed to establish a procedure to adequately identify nonauthorized residents of the community and enforce the relevant guidelines. Their employees received little training about crime prevention and security, and Chateau failed to gather and assess information regarding the area’s criminal activity. Finally, Chateau should have developed a plan of action to address assessed needs for crime prevention and security.
When asked what Chateau could have done to prevent Mason’s attack, the expert noted that security surveys of 75 to 100 multiple-unit dwellings showed that the best deterrent to crime is fear of detection. Security patrols increased the likelihood of discovery during a crime. The company could have told residents of the increase in crime and been proactive in advocating caution or even hypervigilance; it could have aggressively addressed the issue of guests on the property, determined who they were, and limited their presence; and it could have considered instituting an after-hours security presence.
Mason contends that Chateau, as her landlord, breached its duty of care to keep its premises safe from reasonably foreseeable unlawful acts. Chateau responds that it breached no duty to Mason because it had fully parted with possession and control of her home and had never undertaken or promised to provide security for the community. OCGA § 51-3-1 imposes a nondelegable duty upon a landowner to keep his premises in a reasonably safe condition, and a landowner must use ordinary care to do so. Hickman v. Allen, 217 Ga. App. 701, 702 (458 SE2d 883) (1995).
The general rule regarding premises liability is that a landlord does not insure tenants’ safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to “exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. A landlord’s duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal acts. See Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995). The difficulty arises in determining which criminal acts are foreseeable.
(Emphasis in original.) Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 785-786 (482 SE2d 339) (1997). Further,
[a] proprietor’s duty to invitees is to “exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. The proprietor is not the insurer of the invitee’s safety, Pound v. Augusta Nat., 158 Ga. App. 166 (279 SE2d 342) (1981), but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (394 SE2d 345) (1990). If the proprietor has reason to anticipate a criminal act, he or she then has a “duty to exercise ordinary care to guard against injury from dangerous characters.” Atlantic C. L. R. Co. v. Godard, 211 Ga. 373, 377 (86 SE2d 311) (1955).
Lau’s Corp. v. Haskins, supra, 261 Ga. at 492. Thus the incident causing injury to the plaintiff “must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to
In this case, Mason has established that a question of fact exists as to whether the landlord should have reasonably foreseen the criminal attack upon her, based on the evidence presented regarding a stranger’s intrusion into another tenant’s apartment at night and that tenant’s subsequent rape by Goolsby, the same man who raped Mason. These incidents are substantially, if not completely, similar to each other, and Chateau was put on notice that the possibility of such an attack could occur.
Once a plaintiff shows that a question of fact exists on whether the landlord should have reasonably foreseen a criminal attack upon its tenant, the next issue is whether the evidence establishes a question of fact on whether the landlord exercised ordinary care to protect its tenants. Lau’s Corp. v. Haskins, supra, 261 Ga. at 492.
“Exactly what constitutes ‘ordinary care’ varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm.” (Citations and punctuation omitted.) Lau’s Corp., supra at 493.
Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 SE2d 290) (1994), aff'd, Days Inns of America v. Matt, supra (summary judgment for innkeeper reversed because genuine issues present on whether security measures adequate or performed negligently).
In this case, a question of fact exists on whether Chateau exercised ordinary care in response to a reasonably foreseeable criminal attack. When S. P. told Chateau that a strange man entered her house and assaulted her, the manager said she was a senile old woman who was imagining things. After S. P. was raped, a neighbor suspected Goolsby. Despite the neighbor’s request that management investigate Goolsby because she suspected him and wanted the manager to give Goolsby’s background information to the police,
Given these facts, a jury question exists as to whether Chateau should reasonably have foreseen a criminal attack against the plaintiff in her mobile home, and whether Chateau exercised ordinary care to protect its tenants.
Judgment reversed.