Johnson Street Properties, LLC v. Clure, 302 Ga. 51

Background

Cynthia Clure, a tenant at Johnson Street Apartments (owned/operated by Johnson Street Properties, LLC — JSP), was struck and injured when a tree limb suspended on an apartment gutter swung down while a maintenance man attempted to remove it.
The limb originated from a dead/decaying tree on adjacent property owned by the Smiths; limbs from that property had fallen onto JSP land previously.
Steve Wilburn, a fellow tenant who sometimes performed maintenance for JSP, threw a rope over the limb and pulled it; the limb swung and struck Clure. Parties dispute how long the limb had been suspended and whether owners were notified.
Clure sued JSP for negligence; JSP filed a notice to apportion fault to the Smiths under OCGA § 51-12-33 and moved for summary judgment. Clure moved for partial summary judgment challenging the non-party apportionment and alleging insufficient causation proof; she also challenged the constitutionality of the apportionment statute as to non-parties.
The trial court denied JSP’s summary-judgment motion (finding factual disputes on negligence/knowledge/agency/contributory negligence), granted partial summary judgment to Clure on apportionment to the Smiths, and upheld the apportionment statute as constitutional.
On appeal the Supreme Court of Georgia: affirmed denial of JSP’s summary judgment, reversed the trial court’s grant barring apportionment to the Smiths, and vacated/remanded the trial court’s constitutional ruling because Clure lacked standing to challenge the statute as a non-party.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether JSP was entitled to summary judgment on Clure’s negligence claim	Clure argued JSP breached duty to invitees and factual disputes preclude summary judgment	JSP argued lack of knowledge, Wilburn not its agent, and Clure had superior knowledge/assumed risk	Denied — genuine factual disputes exist on notice/agency/contributory negligence/assumption of risk; jury question
Whether Wilburn’s actions (removing limb) are imputed to JSP (agency/respondeat superior)	Clure argued evidence supports that Wilburn acted as JSP’s agent/maintenance man and his knowledge and acts can be imputed	JSP contended Wilburn was not acting within scope of employment (and below raised independent-contractor argument)	Issue for jury — evidence raises fact questions about employment/agency and scope; summary judgment inappropriate
Whether fault can be apportioned to the Smiths (non-party apportionment under OCGA § 51-12-33)	Clure argued insufficient competent evidence that Smiths breached duty or proximately caused injury	JSP sought to apportion fault to Smiths because limb came from their dead tree and prior fallen limbs gave notice	Reversed trial court’s grant to Clure — factual issues existed about Smiths’ notice, foreseeability, and proximate cause; apportionment is for jury
Whether Clure could challenge constitutionality of the apportionment statute on behalf of non-parties	Clure argued statute deprives non-parties of due process/equal protection	JSP argued Clure lacked standing to assert non-parties’ constitutional rights	Vacated/remanded — Clure lacked standing to bring constitutional challenge on behalf of non-parties; trial court lacked jurisdiction to decide that claim

Key Cases Cited

Cowart v. Widener, 287 Ga. 622 (summary judgment standard; view evidence for nonmovant)
Woodcraft by MacDonald v. Ga. Cas. and Sur. Co., 293 Ga. 9 (standard of review on summary judgment)
Robinson v. Kroger Co., 268 Ga. 735 (premises-liability duty; notice and inspections)
Martin v. Six Flags Over Ga. II, L.P., 301 Ga. 323 (apportionment statute and who is a contributor)
Zaldivar v. Prickett, 297 Ga. 589 (apportionment permits considering fault of tortfeasors despite defenses)
Ontario Sewing Machine Co. v. Smith, 275 Ga. 683 (proximate cause is generally a jury question)
Perdue v. Lake, 282 Ga. 348 (standing to challenge statute; limits on bringing others' constitutional claims)