Johnson Street Properties, LLC v. Clure
302 Ga. 51
Ga.2017Background
- Cynthia Clure, a tenant at Johnson Street Apartments (owned/managed by Johnson Street Properties, LLC — JSP), was struck and injured by a tree limb that fell from a limb suspended between a neighboring tree and an apartment gutter while another tenant (Steve Wilburn) attempted to remove it.
- The suspended limb originated from a tree on adjacent land owned by the Smiths; limbs from Smiths’ trees had fallen on JSP property before and at least one tree on Smiths’ land was visibly dead/decaying.
- Clure warned others about the limb, testified she left voicemails for the owners reporting the hazard (owners deny receipt), and saw Wilburn throw a rope over the limb before it swung and struck her. Parties dispute how long the limb had been suspended and how close Clure was when it fell.
- JSP moved for summary judgment (arguing no knowledge, Wilburn not its agent/employee, and Clure had superior knowledge/assumed risk). Clure moved for partial summary judgment seeking dismissal of JSP’s notice apportioning fault to the Smiths and challenged the constitutionality of OCGA § 51-12-33.
- Trial court denied JSP’s summary judgment, granted partial summary judgment to Clure as to non-party fault (finding Smiths too remote), and upheld the apportionment statute as constitutional. Both parties appealed; court of appeals/Georgia Supreme Court reviewed de novo on summary judgment issues.
Issues
| Issue | Clure's Argument | JSP's Argument | Held |
|---|---|---|---|
| Whether JSP was entitled to summary judgment on negligence | JSP had notice or imputed notice (via Wilburn) and genuine factual disputes precluded summary judgment | JSP had no actual or constructive notice; Wilburn not its agent; Clure was comparatively negligent/assumed risk | Affirmed trial court — genuine issues of material fact exist on notice, agency, contributory negligence, and assumption of risk; summary judgment denied |
| Whether Wilburn was JSP’s agent/acting within scope (respondeat superior) | Wilburn acted as maintenance/agent; his knowledge and conduct imputable to JSP | Wilburn was not an employee acting within scope (or was independent contractor — latter not argued below) | Reversed summary judgment for JSP denied; issue is factual for jury — genuine dispute exists as to agency and scope |
| Whether JSP could apportion fault to the Smiths under OCGA § 51-12-33 | Smiths’ dead/decaying trees and prior falling limbs support apportionment — jury should decide proximate cause | Smiths’ acts/omissions too remote to be proximate cause; no competent evidence of Smiths’ notice | Reversed trial court’s grant to Clure; issues of fact (notice, foreseeability, proximate cause) permit apportionment to non-party |
| Whether Clure could challenge constitutionality of OCGA § 51-12-33 | Statute violates due process/equal protection as applied to non-parties | Clure lacks standing to challenge statute on behalf of non-parties | Trial court lacked jurisdiction to decide Clure’s constitutional challenge; judgment vacated and remanded with direction to dismiss that portion for lack of standing |
Key Cases Cited
- Cowart v. Widener, 287 Ga. 622 (summary judgment standard and viewing evidence for nonmovant)
- Woodcraft by MacDonald v. Ga. Cas. and Sur. Co., 293 Ga. 9 (standard for summary judgment review)
- Robinson v. Kroger Co., 268 Ga. 735 (landowner duty to invitees and superior knowledge rule)
- Reynolds v. L & L Mgmt., 228 Ga. App. 611 (scope-of-employment/respondeat superior principles)
- Zaldivar v. Prickett, 297 Ga. 589 (apportionment statute contemplates fault of tortfeasors even with affirmative defenses)
- Martin v. Six Flags Over Ga. II, L.P., 301 Ga. 323 (defendant’s burden to provide rational basis for apportioning fault; jury question on non-party fault)
- Ontario Sewing Machine Co. v. Smith, 275 Ga. 683 (proximate cause generally a jury question)
- Perdue v. Lake, 282 Ga. 348 (standing limitations; party cannot raise another’s constitutional claim)