CHAM et al. v. ECI MANAGEMENT CORPORATION et al.
S20G0601
In the Supreme Court of Georgia
Decided: March 15, 2021
WARREN, Justice.
In this wrongful death action, the surviving spouse of Franklin Callens and the administrator of his estate (collectively, “Plaintiffs“) sued the owner and manager of an apartment complex (collectively, “Defendants“) where Callens was killed during an armed robbery.1 Plaintiffs alleged that Defendants were negligent in failing adequately to secure their premises from criminal activity. Defendants prevailed at trial, and Plaintiffs appealed, contending, in relevant part, that the trial court erred in giving a jury instruction on the law applicable to “licensees” in premises liability cases. The Court of Appeals affirmed the trial court‘s decision on that issue. We granted certiorari on the following question:
Did the trial court err in charging on the duty a landowner owes a licensee, when there was evidence showing that the plaintiffs’ decedent was a guest of a lawful tenant of the landowner?
For the reasons that follow, we conclude that the answer is “no” and therefore affirm.
1. Background
In December 2015, Callens was shot and killed during an armed robbery in a parking lot of the Concepts 21 Six-Flags apartment complex that was owned and managed by Defendants. It is undisputed that the parking lot was a common area of the apartment complex. At the time of his death, Callens was separated from his spouse and was staying in a three-bedroom apartment in the complex with his girlfriend, Asia Jones. At trial, Jones testified that she and Callens
Other evidence, however, suggested that Callens was not authorized to reside on the property. Jones acknowledged that she did not put Callens‘s name on the rental application that asked the applicant to list the “Name and Relationship of All Other Persons to Occupy Apartment“; instead, Jones marked that space “N/A.” And the rental agreement that Jones signed—first in September 2014 and then again as part of a renewal in October 2015—stated that the apartment “shall be used for Residential purposes only and shall be occupied only by persons named in Resident‘s application to rent.” Similarly, a former property manager testified that the management had a policy that every adult who resides in a rented apartment should be listed on the lease. The purpose of this policy, the manager explained, was to allow the management to obtain a credit report and criminal background check on all adult occupants of the property.
During the charge conference, Defendants requested that the trial court give the jury the pattern charges on the duty of care owed to invitees, licensees, and trespassers in premises liability cases. Plaintiffs opposed the licensee charge, arguing that, based on the evidence presented, Callens was either an invitee or a trespasser, depending on whether the jury believed Jones that Defendants gave Callens permission to live in the apartment. As a result, Plaintiffs contended, “it is appropriate under the facts of this case to charge [the jurors] on invitee and on trespasser, but not as to licensee.”
The trial court ruled in Defendants’ favor and included the following pattern charge on licensees as part of its jury instructions:
The licensee is a person who, one, is not a customer, employee, or trespasser; two, does not stand in any contractual relation with the owner of the premises; and three, is permitted expressly or impliedly, to go on the premises merely for his or her own interests, convenience or gratification.
The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had business relations with the owner of the premises that would cause his or her presence to be beneficial to both. In the absence of some relationship with the owner or occupier of the premises, no invitation may be implied, and the injured person must be regarded as a licensee.
A licensee enters on the premises at his or her own risk, and the owner owes the licensee no duty as to the conditions of the premises, except that the owner should not knowingly let the licensee run into a hidden peril or willfully or wantonly cause him or her injury.
The jury returned a verdict in favor of Defendants, and the trial court entered a judgment on the verdict. Plaintiffs appealed to the Court of Appeals, arguing (among other things) that the trial court erred in instructing the jury on the definition of and duty owed to a licensee.
The Court of Appeals reversed the trial court‘s judgment on two issues for which we did not grant certiorari review, and it remanded the case (with directions) for a new trial. See Cham v. ECI Mgmt. Corp., 353 Ga. App. 162 (836 SE2d 555) (2019).3 On the jury charge issue, however, the Court of Appeals affirmed, holding that the trial court did not err in charging the jury on the duty owed to a licensee. Specifically, the Court of Appeals reasoned that
even if Callens was living in the apartment without Defendants’ permission and in violation of the lease, Callens could still be considered a social guest of Jones, the authorized tenant[,] and therefore permitted on the premises by the tenant for his “own interests, convenience, or gratification” and without any contractual relation to Jones or Defendants.
Id. at 165-166. To support its reasoning, the Court of Appeals cited the general principle that social guests are deemed to be licensees, rather than invitees. See id. at 166; Brown v. Dickerson, 350 Ga. App. 137, 138 (828 SE2d 376) (2019) (“[Plaintiff] undisputedly was a social guest on [landowner]‘s property and thus was a licensee.“); Thompson v. Oursler, 318 Ga. App. 377, 378 (733 SE2d 359) (2012) (in evaluating landowner‘s liability, noting that “Georgia has adopted the rule that a social guest is not an invitee but is a licensee“) (citation and punctuation omitted). See also Brown v. Clay, 166 Ga. App. 694, 695 (305 SE2d 367) (1983). We granted certiorari to review the licensee charge the trial court gave the jury.
2. Applicable Law
To authorize a jury instruction, “[t]here need be only slight evidence supporting the theory of the charge.” Daly v. Berryhill, 308 Ga. 831, 833 (843 SE2d 870) (2020). And “[t]he evidence supporting the charge does not have to be direct evidence. It is enough if there is something from which a jury could infer a conclusion regarding the subject.” Id. at 833-834 (citation and punctuation omitted). See also Jones v. Sperau, 275 Ga. 213, 213 (563 SE2d 863) (2002) (“If there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue.“) (citation and punctuation omitted). Here, we must decide whether there was at least “slight evidence” that Callens was a licensee, as opposed to an invitee or a trespasser, so as to warrant the jury instruction given at trial. See Daly, 308 Ga. at 833. To answer that question, we first examine the premises liability law applicable to this case.
(a) Background Principles of Landowner and Landlord Liability
Generally, a landowner has a duty to keep its premises safe for visitors, and this duty “depends, to a certain extent, on whether the one entering the property is an invitee, a licensee or a trespasser.” Lipham v. Federated Dept. Stores, Inc., 263 Ga. 865, 865 (440 SE2d 193) (1994). This duty is codified, in relevant part, in
Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.
(a) A licensee is a person who:
(1) Is neither a customer, a servant, nor a trespasser;
(2) Does not stand in any contractual relation with the owner of the premises; and
(3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.
(b) The owner of the premises is liable to a licensee only for willful or wanton injury.
In explaining the distinction between invitees and licensees, we have stated that “the determining question as to whether a visitor is an invitee by implication or a licensee is whether or not the owner or occupant of the premises will receive some benefit, real or supposed, or has some interest in the purpose of the visit.” Anderson v. Cooper, 214 Ga. 164, 169 (104 SE2d 90) (1958). The Court of Appeals similarly has said that “a person may be deemed an invitee if his presence on the property is of mutual benefit to both him and the landowner,” whereas a licensee “falls between” an invitee and a trespasser and “is one who is permitted, either expressly or impliedly, to go on the premises of another, but merely for his own interest, convenience, or gratification.” Matlack v. Cobb Elec. Membership Corp., 289 Ga. App. 632, 634 (658 SE2d 137) (2008). See also Esposito v. Pharr Court Assoc., L.P., 334 Ga. App. 434, 437 (779 SE2d 675) (2015) (“The mutuality of interest required to make one an invitee upon the premises of another does not mean that there must be a commercial business transaction between the parties. It is sufficient to show that each party is moved by a lawful purpose or interest in the object and subject matter of the invitation.“) (citation and punctuation omitted).
These principles become more complicated when the landowner is also a landlord who is leasing parts of the property to tenants. A landowner‘s duty to visitors is imposed “because the landowner has control over the property and is thus able to act in order to protect others from conditions on the property which might cause harm.” Lipham, 263 Ga. at 865. See also Robinson v. Kroger Co., 268 Ga. 735, 736 (493 SE2d 403) (1997) (the “fundamental basis for an owner or occupier‘s liability” under
For this reason, Georgia law has long excepted landlords from general landowner liability with respect to premises possessed by tenants; this exception is now codified in
Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.4
See also Colquitt, 265 Ga. at 906 (“A landlord‘s liability to a third person who is injured on property which was relinquished by rental
or under a lease is determined by
In many instances, a landlord‘s plot of land contains both areas that are possessed by the landlord (such as the common areas of an apartment complex) and areas possessed by tenants (i.e., the apartments themselves). In such cases, a landlord‘s tort liability for a danger on its property is determined by the area where that danger lurks. If the dangerous condition that ultimately causes an injury is located in an area the landlord still possesses, then liability under
Conversely, if the dangerous condition exists in an area possessed by the tenant (such as in the tenant‘s residence), then a landlord‘s liability derives from
defective construction or failure to repair under predecessor to
(b) Decisional Law Relating to Premises Liability
A number of decisions from the Court of Appeals on which the parties in this case rely
The Crossgrove court then stated the following proposition: “Members of a tenant‘s family, his guests, servants, employees, or others present by his express or implied invitation, stand in his shoes, and are controlled by the rules governing the tenant as to the right of recovery for injuries arising from failure to keep the premises in repair.” Id. To support this proposition, the Court of Appeals cited three cases from this Court that dealt with an out-of-possession landlord‘s liability under the predecessor statute to
Crossgrove‘s statement about guests standing in the tenant‘s “shoes” applied under the facts of that case to determine an out-of-possession landlord‘s liability under what is now
possession. See Paul v. Sharpe, 181 Ga. App. 443, 444-445 (352 SE2d 626) (1987) (citing the stands-in-the-shoes proposition where plaintiff-visitor was injured by a defective railing on a bridge in the common area of an apartment complex); Rothberg v. Bradley, 85 Ga. App. 477, 481, 483-485 (69 SE2d 293) (1952) (referring to the proposition where plaintiff-visitor was injured after falling into an unguarded shaft on the roof of an apartment building that was used as a common area). See also Scully v. Bd. of Regents of Univ. Sys. of Ga., 332 Ga. App. 873, 875-876 (775 SE2d 230) (2015) (citing the proposition where plaintiff-visitor was injured on a university campus, outside a residence hall).
Crossgrove aside, the Court of Appeals has, in other cases, referred to the invitee/licensee distinction—derived from the language in
Another case that has improperly conflated the duties of landlords and landowners is Brown v. Clay, 166 Ga. App. 694 (305 SE2d 367) (1983), which the Court of Appeals discussed in this case
and whose significance the parties fervently debate on appeal. In Brown, the plaintiff was injured when he jumped from a second-story window of a rooming house to escape a fire, and he sued the landlord for “negligence in failing to provide safe premises for tenants,” though the nature of the alleged defect, or where that defect was located, is unclear from the opinion. See id. at 694-695. The room in question was leased by a friend of the plaintiff, and the friend allowed the plaintiff to stay there occasionally, albeit without the knowledge or consent of the landlord, who had prohibited tenants from having overnight guests. See id. at 695.In affirming the grant of summary judgment to the landlord, the Brown court first cited the stands-in-the-shoes proposition, and then proceeded to analyze the case under
Brown‘s reasoning is flawed for at least two reasons. First, the Brown court should have made clear where the alleged cause of the injury lay—whether in an area possessed by the tenant or in an area possessed by the landlord—because that fact determines the source of the landlord‘s liability: either
Having reviewed the relevant background principles of premises liability and the historical patchwork of sometimes-misguided decisional law in this area, we now turn to the question at hand: whether there was “slight” evidence presented at trial that Callens was a licensee, so as to warrant a jury instruction on licensees. See Daly, 308 Ga. at 833. Plaintiffs contend that there was no such evidence and insist that Callens was either an invitee or a trespasser. They argue that Callens was a guest of the tenant (Jones), and that a “social guest” of a tenant generally is an invitee of the landlord—just as the tenant herself is an invitee of the landlord—because the guest of a tenant “stands in the shoes” of the tenant with regard to the duty owed by the landlord. Defendants respond that, among other things, the stands-in-the-shoes principle does not apply in cases brought under
As an initial matter, there is no dispute that Callens was killed due to criminal activity that took place in a parking lot—a common area of the apartment complex—and that the source of the Defendants’ liability is
In the same vein, characterizing Callens as a “social guest” of Jones also would not automatically make Callens a licensee of Defendants, as the Court of Appeals below suggested. As discussed above, in assessing the landlord‘s liability to a visitor on landlord-occupied premises, the touchstone is not the visitor‘s relationship to the tenant, but his relationship to the landlord (i.e., the “owner or occupier of land“). See
To begin, we acknowledge that some evidence was presented that Callens was an invitee (and not a licensee) of the landlord, independent of any status as a social guest. That evidence included Jones‘s testimony, which indicated that the apartment-complex management expressly (or at least implicitly) authorized Callens to reside on the premises, and that this permission directly benefited
On the other hand, evidence that Callens was not listed on the rental application did not necessarily establish that he was a trespasser. Testimony showed that Defendants had a “policy” that every adult who resides in a rented apartment should be listed on the lease. But a “policy” can mean something less than an absolute mandate. See Black‘s Law Dictionary (11th ed. 2019) (defining “policy” as a “standard course of action that has been officially established by an organization, business, political party, etc.“). And the lease agreement itself—including the provision that “this apartment shall . . . be occupied only by persons named in resident‘s application to rent“—on its face was not binding on Callens, who had not signed it. In any event, the jury could have concluded that the Defendants chose not to enforce the named-occupant provision.15 Thus, the lease agreement does not necessarily render Callens a trespasser in the parking lot where he was killed.
Given all of the above, we cannot say that the only plausible view of the evidence presented at trial was that, at the time Callens was robbed and shot in the apartment parking lot, Defendants had expressly or implicitly invited Callens to be on the property or, conversely, prohibited him from being there. And that left space for at least “slight” evidence that Callens met all of the definitional requirements of a “licensee” under
More specifically, in light of all of the evidence presented at trial, the jury was authorized to conclude that the rental agreement and management policy discussed above indicate that the Defendants had no interest in having people (such as Callens) live in the apartment complex and continually use the common areas without signing the lease or being listed on the rental application (as opposed to just visiting as guests). And the jury could have inferred from Jones‘s testimony that Defendants never told Callens he could not be on the property and did not otherwise prohibit him from being there, while also discrediting other aspects of Jones‘s testimony that could have constituted evidence that Callens was an invitee. At least slight evidence was presented that Callens‘s extended stay in Jones‘s apartment and his concomitant use of the common areas occurred with the Defendants’ permission but “merely for his own interests,” see
Judgment affirmed. All the Justices concur, except Boggs, Peterson, and Ellington, JJ., who dissent.
PETERSON, J., dissenting.
In a thoughtful and scholarly opinion, the majority correctly explains the distinction between the two primary sources of landlord liability —
The authority to host guests in your home is for many people a key element of what it means for a home to be yours. When you rent a home, the landlord can impose restrictions on your authority to host guests. But when a landlord imposes such restrictions, some potential renters will pass the property by and rent from a different landlord who offers more freedom. The fewer the potential renters, the more difficult the landlord will find it to rent the property at the desired amount. Accordingly, a landlord who allows a renter to host guests in the rented property generally stands to benefit financially from that arrangement.
The majority acknowledges the truth of this reasoning. And, indeed, in our first case to consider a similar issue under what is now
In my view, this generally means that when renters are allowed to host guests, the guests are thus implicitly invited by the landlord (who has already benefitted financially by extending the implicit invitation). Accordingly, those guests are invitees of the landlord, who thus owes them the duty imposed by
What this reasoning does not generally allow is a third category of guest as licensee. Either the renter is allowed to host the guest, or the renter is not allowed to host the guest. Absent at least slight evidence of some separate permission from the landlord to the guest for reasons unconnected to the renter, the guest‘s presence is permissible or not based entirely on the authority the landlord has granted the renter. And if the renter is allowed to have guests, but the guest exceeds the scope of the landlord‘s implied invitation, then the guest is a trespasser. The majority points to no evidence, slight or otherwise, that the landlord gave Callens permission to be present in the parking lot for reasons unconnected to Jones. In the absence of such evidence, I see no basis for a licensee charge.17
Accordingly, I respectfully dissent.
Notes
A related statute applicable to landlords is
To put a finer point on it, Defendants’ interest in Callens‘s presence in the parking lot was not the same as Jones‘s interest in his presence in her apartment. A person who comes to a tenant‘s apartment for a social visit will in most cases be an invitee of the landlord in the common area of an apartment complex, because the landlord generally “receive[s] some benefit” or has “some interest” in the guest‘s presence on the property. See Anderson, 214 Ga. at 169. After all, a landlord of an apartment complex is in the business of providing residences to tenants, and a common and natural use of a residence is to invite social guests; it is thus normally in the landlord‘s interest to lease residences that can be used to entertain social guests, rather than to limit their use by prohibiting or discouraging guests. See Reardon v. Shimelman, 128 A. 705, 706 (Conn. 1925) (a “right of ingress and egress” for lawful guests of tenant “is essential, not merely to the enjoyment of the rented premises by the tenants, but also to the renting of them by the landlord; it is part of that for the use of which he is paid, and it exists for the mutual benefit of landlord and tenants alike“); Stanley v. Town Square Co-op., 512 NW2d 51, 54 (Mich. App. 1993) (the landlord receives “some pecuniary benefit” from the visits of tenant‘s social guests because “[p]art of the rent paid to the landlord is the consideration for giving to the tenants the right to invite others onto the property“).
Similarly, in the commercial context, the customer of a business is typically an invitee of the business owner, and our courts generally have agreed that a guest or companion of a customer may also be considered an invitee on business premises, even though the guest has no business relationship with the owner or proprietor. See Anderson, 214 Ga. at 169 (child who accompanied his father into the bakery shop was an invitee of the shopkeeper; bringing a child into a shop “is a customary use of the premises and is conduct on the part of parents which the occupant was bound to have known,” and the shopkeeper gained an opportunity to make a sale by allowing the father to bring his child inside); Esposito, 334 Ga. App. at 437 (jury was authorized to find that plaintiff was invitee of the nursing home when she was injured while visiting her husband at the home; there was evidence that plaintiff “provided much of the daily care for her husband, which obviously lightened the burden of the nursing home staff” and that the home‘s “own director of nursing considered visitors to be customers“); Freeman v. Eichholz, 308 Ga. App. 18, 22 (705 SE2d 919) (2011) (visitor of a prison inmate was invitee of the prison because “visitation between inmates and their authorized and properly admitted visitors benefits both the visitor and the defendants so that a ‘mutuality of benefit’ exists“). Compare Jones v. Asa G. Candler, Inc., 22 Ga. App. 717, 717 (97 SE 112) (1918) (plaintiff was a licensee of the owner of an office building—where she was injured in the hallway—because undisputed facts showed that the plaintiff was visiting a business tenant inside the building to solicit a donation, as opposed to transacting business) (citing Plummer v. Dill, 31 NE 128, 128 (Mass. 1892) (plaintiff was licensee inside office building because she “did not go there to transact with any occupant of the building any kind of business in which he was engaged, or in the transaction of which the building was used or designed to be used“)).
On the whole, these cases illustrate how the mutuality of benefit between a tenant‘s social guest and a landlord or a customer‘s companion and a business owner typically result in the guest or companion being invitees of the landlord and the business owner, respectively. But they do not control the different (and dispositive) issue here: whether there was at least slight evidence that a person who visits a tenant in an apartment continually—not once, a few times, or even regularly—and who was at the same time not prohibited from visiting the tenant, exceeded the scope of any invitation the landlord expressly or impliedly extended to him such that he was neither an invitee nor a trespasser.
I agree with the majority that the reasoning of Brown v. Clay, 166 Ga. App. 694 (305 SE2d 367) (1983), was wrong, although for a different reason. The Court of Appeals clearly stated in Brown that the landlord prohibited overnight guests. See id. at 695. Accordingly, the renter lacked authority to host the guest, and the guest was a trespasser, not a licensee.
I also note that the pattern jury instruction on licensee law, while correctly stating general principles of law, is the wrong instruction to give even under the majority‘s theory of the case. The instruction‘s focus on whether there was a business relationship between the guest and the landlord does not acknowledge the implied invitation most guests have from the landlord by virtue of the landlord‘s authorization to the renter to host guests. This would likely mislead a jury into finding many guests to be licensees when they should properly be understood as invitees. The majority‘s observation that the trial court “may consider tailoring” the charge is a good one, but does not go quite far enough.