TUSCANY CONDOMINIUM ASSOCIATION, INC. v. C.P., AN ADULT FEMALE
376 Ga. App. 238
Ga. Ct. App.2025Background
- Tuscany Condominium Association (TCA), a nonprofit association governing Tuscany Condominiums, appealed the denial of its motions for summary judgment, to dismiss, and for a mental examination in a lawsuit brought by C.P., a renter injured during a criminal assault on the property.
- TCA’s declaration includes a "no security" provision stating the association does not provide security for residents and is not liable for losses due to insufficient security measures.
- C.P., a tenant (not an owner), was assaulted on the premises after an assailant entered through an unsecured common gate; she sued TCA and others for negligent security and related torts.
- The lower court refused to enforce the "no security" provision against C.P., allowed her various tort claims to proceed, and denied TCA’s request for a court-ordered mental exam.
- TCA appealed, arguing the declaration’s "no security" clause, recent Georgia code changes, and technical pleading deficiencies barred C.P.’s claims and fee requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of "no security" clause | Provision is not explicit or communicated to tenants; not enforceable against C.P. | Applies to all unit occupants via the declaration and lease; bars claim | Clause not enforceable against C.P.; not explicit in lease |
| Attorney fees under OCGA § 13-6-11 | Fees allowed in tort as well as contract cases | Post-2021 amendments limit fees to contract cases | Fees are still available in tort; precedent stands |
| Sufficiency of tort/negligence/nuisance claims | Factual allegations sufficient under liberal notice pleading | Specific pleadings/statute references required; claims fail | Pleading standards met; claims are not dismissed |
| Motion for mental examination | Willing to provide records; motion was premature | Asserted mental harm places condition in controversy; examination justified | Denial upheld; discovery process and discretion appropriate |
Key Cases Cited
- Bradford Square Condo Ass'n v. Miller, 258 Ga. App. 240 (Enforceability of association disclaimers against owners, not tenants)
- Marshall v. King & Morgenstern, 272 Ga. App. 515 (Summary judgment standards favor nonmovant)
- Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323 (Premises liability for third-party crimes)
- Sacker v. Perry Realty Svcs., Inc., 217 Ga. App. 300 (Duty of care for invitees on property)
- Junior v. Graham, 313 Ga. 420 (Attorney fees in tort cases allowed under OCGA § 13-6-11)