GEORGE v. HERCULES REAL ESTATE SERVICES, INC.
A16A1090
Court of Appeals of Georgia
DECIDED NOVEMBER 18, 2016
RECONSIDERATION DISMISSED DECEMBER 13, 2016.
795 SE2d 81
DOYLE, Chief Judge.
Debra K. Jefferson, for appellant.
Layla H. Zon, District Attorney, Randal M. McGinley, Patrick A. Najjar, Assistant District Attorneys, for appellee.
Derrick George filed a premises liability action against Hercules Real Estate Services, Inc. (“Hercules“), the manager of the apartment complex in which George lived when he was shot by unknown assailants during a home invasion. George asserted claims for negligence, nuisance, and punitive damages. Hercules answered and filed a counterclaim for unpaid rent and other fees. The trial court granted summary judgment to Hercules as to all of George‘s claims and as to
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
So viewed, the record shows that George moved into an apartment in The Villas at Lakewood in November 2010. On June 11, 2011, while he was not home, George‘s apartment was burglarized between the hours of midnight and 2:00 a.m. In response to the burglary, Hercules repaired George‘s damaged front door and installed a metal burglar guard, which made the door more secure when locked, but also made it difficult to engage the deadbolt. The apartment complex also had an alarm system that was monitored 24 hours per day and included a front-door panic button in each unit, including George‘s. According to George, after the burglary, he obtained a shotgun and kept it beside the front door for protection because he believed the complex was not safe.
In the early morning hours of July 27, 2011, George was home with a friend when someone knocked on his door. George turned on the front porch light, looked through the peephole, and asked who was there; he could see only the silhouette of a single individual, and he could not hear the person on the other side of the door. Although he was not expecting anyone at the time, George opened the door, propping his foot against it out of concern for his safety. When George opened the door, a second individual emerged, and he and the first man tried to force their way into George‘s apartment. George pushed back and tried to lock the door, but he was unable to engage the deadbolt. George grabbed his shotgun and fired at the intruders. The intruders fired back, shooting George four times. The police never apprehended or identified the intruders. After the shooting, George did not return to his apartment nor did he pay rent for the apartment.
Hercules was aware of prior crimes at the apartment complex2 and employed a private security service during day hours. Prior to the shooting, in May 2011, Hercules‘s on-site manager requested that the corporate office provide additional security for the complex, but Hercules did not comply with the request.
George sued Hercules, asserting claims for negligence, nuisance, and punitive damages. With regard to his negligence claims, he alleged that Hercules failed to (1) keep the premises in proper repair; (2) provide adequate security; and (3) keep the premises safe. Hercules asserted a counterclaim against George for unpaid rent and moved for summary judgment on all claims. The trial court granted summary judgment to Hercules on all claims, and this appeal followed.
1. George‘s claims. Because the record is devoid of any competent evidence to create a question of fact on the element of causation, Hercules was entitled to summary judgment as to George‘s claims.3
(a) Negligence. There are four elements to a negligence claim in Georgia:
(1) A legal duty to conform to a standard of conduct raised by the law for the protection
of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff‘s legally protected interest as a result of the alleged breach of the legal duty.4
On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.5
As the movant, Hercules offered evidence that as part of a $7 million renovation of the property, it installed a monitored security alarm equipped with a panic button in each unit; added exterior security cameras around the property; employed security guards in varying hours seven days a week; provided a twenty-four-hour phone number for maintenance and security issues; added an entry gate and landscaping to prevent unauthorized entry; and worked with the resident community, neighborhood watch, and police department to increase involvement and presence in the complex. Hercules also pointed to the lack of expert or other testimony in the record that any additional security measures would have prevented George from being shot after voluntarily opening his door to a stranger after midnight. Stated another way, Hercules argued that there is a lack of evidence on causation — that there is no evidence that its alleged failure to provide adequate security caused George‘s injuries.6
In response, George points only to the testimony of Celina Nyack, Hercules‘s community manager, and Joe Bulat, the owner of the security company. While George states that the security company recommended additional security measures, a review of Bulat‘s deposition belies this assertion. When asked whether he made any recommendations, Bulat replied: “I would have liked to have had more hours, of course, but if I said, do you want to increase the hours? No, they had a budget.”7
Similarly, George claimed that Hercules‘s on-site manager “requested more security and surveillance because the tenants were ‘at the mercy of criminal activity on the property.’ ” A closer look at the e-mail written by Nyack shows that on May 25, 2011, she requested more security on weekend days and weekday evenings “[d]ue to the school year ending and the weather inclement
This evidence is insufficient to create a question of fact on whether George‘s injuries were proximately caused by any act or omission of Hercules.10 For example, in Johns v. Housing Auth. for the City of Douglas,11 a tenant was raped after an assailant entered her apartment through a window in which she had placed cardboard to fill a gap between the window and an air conditioning unit she installed.12 There was no evidence indicating how the assailant entered the complex or whether he was a resident.13
To support its motion for summary judgment, the [defendant] Housing Authority pointed to: the lack of evidence showing that any of the allegedly unsafe conditions presented by its failure to repair the fence or increase common area lighting or security patrols proximately caused the attack; evidence that [the plaintiff] had equal or superior knowledge of the allegedly unsafe conditions; and evidence that the unsafe condition that actually allowed the assailant to enter her apartment (i.e., the manner in which she installed the air conditioner window unit) was created by [the plaintiff].14
The Court pretermitted the issues of superior knowledge and foreseeability of the attack and assumed that the Housing Authority breached its duty by not making the repairs or improvements suggested by the plaintiff.
[A] jury would have to speculate that improvements to security patrols and lighting, and a repair to the fence, would have prevented the assailant from approaching [the plaintiff‘s] apartment unit and reaching through her window to gain entry into her apartment. Speculation that raises a mere conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.15
Here, a request for more security based upon school ending for the summer and inclement weather, along with a comment that the property along the fence lines and behind the buildings was at the mercy of criminals, coupled with the security company‘s desire for more hours (though without any request for more), simply does not provide evidence that Hercules proximately caused George‘s injuries sustained when he was shot after voluntarily opening his door to an unknown person after midnight. Because George failed to meet his burden of demonstrating a triable issue of fact as to proximate cause, summary judgment in favor of Hercules on his negligence claim is proper.
(b) Nuisance. Proximate cause is also an essential element in a nuisance claim.16 As we held in Division 1 (a), George failed to meet his burden of demonstrating a triable issue of fact on this issue; therefore summary judgment in favor of Hercules on his nuisance claim is proper.
(c) Punitive damages. “A claim for punitive damages is derivative in nature and will not lie in the absence of a finding of compensatory damages on an underlying claim.”17 Because George‘s negligence and nuisance claims fail, his claim for punitive damages also fails.
2. Hercules‘s counterclaim. George contends that the trial court erred by granting summary judgment to Hercules on its counterclaim that he breached the lease agreement to pay rent after he was injured. We disagree.
In response to Hercules‘s motion,18 George argued that questions of material fact exist as to whether Hercules‘s actions and failure to secure his apartment from criminals relieved him of his contractual obligation to pay past-due rent. Specifically, George argued that he should be excused from paying his rent because Hercules‘s alleged failure to provide adequate security or to adequately repair the lock on his door (1) breached an implied covenant in the lease, and/or (2) constituted constructive eviction.19 For the reasons that follow, neither of these defenses relieved George of his contractual obligation to pay rent.20
(i) “A general warranty of title against the claims of all persons includes three separate covenants: (1) a covenant of a right to sell, (2) a covenant of quiet enjoyment, and (3) a covenant of freedom from
encumbrances.”22 “To constitute a breach of the covenant of warranty, or for quiet enjoyment, an eviction or equivalent disturbance by title paramount must occur, and the mere existence of an outstanding paramount title will not constitute a breach.”23 Further, “[a] covenant for quiet enjoyment of the premises is necessarily implied in every lease and goes to the extent of [representing] that the landlord has a good title and can give a free and unencumbered lease of the premises for the term stipulated.”24
Thus, to establish a breach of the covenant of quiet enjoyment, George had the burden to prove that Hercules did not have good title to lease him the premises or that someone else had paramount title. George‘s complaints about The Villas, however, do not concern the issue of a paramount title and, therefore, do not implicate the covenant of quiet enjoyment. Accordingly, George‘s defense of breach of the implied covenant of quiet enjoyment failed as a matter of law, though for reasons other than those stated by the trial court.25
(ii) In granting summary judgment to Hercules on its claim for unpaid rent, the trial court relied on language in this Court‘s decision in Jaraysi to conclude that the actions of third-party criminal actors could not support a finding that Hercules breached the covenant of quiet enjoyment and, therefore, did not relieve George of his obliga-tion to pay rent in this case. We recognize the basis for the trial court‘s confusion because we have conflated the defenses of breach of the covenant of quiet enjoyment and constructive eviction in our case law, and we take this opportunity to clarify the issue.
The Jaraysi decision, upon which the trial court relied, arose out of a series of cases dating back to a case issued by this Court a century ago — Adair v. Allen.26 In Adair, this Court addressed the implied covenant of quiet enjoyment in a lease and held that the covenant ”does not amount to an undertaking on [the landlord‘s] part that the premises leased are suitable or fitted for the particular use for which they are intended by the lessee[.]”27 This Court then went on to hold that the implied covenant of quiet enjoyment does not apply to a
tenant‘s claims arising from a nuisance created and maintained by a third party — in that case a co-tenant.28
Since 1923, this Court has issued a series of cases that have misinterpreted Adair and have been relied upon for the erroneous proposition that the covenant of quiet enjoyment encompasses non-title based claims, such as the defense of constructive eviction.29
(b) Constructive eviction. We turn now to George‘s argument that Hercules‘s failure to provide adequate security or to properly secure his lock constituted constructive eviction, thereby relieving him of his contractual obligation to pay rent. This argument is also without merit.
A claim for constructive eviction involves the tenantability of leased property and the nature of the repairs required to restore the property to a safe and tenantable condition.31
Two essential elements must be shown to establish the defense of constructive eviction. They are: (1) [t]hat the landlord in consequence of his failure to keep the rented building repaired allowed it to deteriorate to such an extent that it had become an unfit place for the [tenant] to carry on the business for which it was rented, and (2) that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant‘s business.32
In other words, to prove a constructive eviction that excuses the payment of rent, there must be proof of
either an actual expulsion of the tenant, or some act of a grave and permanent character done by the landlord with the intention of depriving the tenant of the [use] of the demised premises. An act may be considered grave in character if it renders the premises untenantable or unfit for the use and benefit of the tenant in accomplishing one or more of the substantial purposes of the lease.33
Thus, for George to meet his burden as the nonmovant with regard to his defense of constructive eviction, he was required to identify evidence showing a fact question as to whether Hercules committed some act or omission with regard to the property so “grave in character . . . it renders the premises untenantable or unfit for . . . use.”34 Based on the record before us, George failed to do so. The defense of constructive eviction cannot be premised upon the action of a third party,35 and there is no evidence that Hercules committed the criminal acts in question. And Hercules‘s alleged failure to provide security or to properly repair his lock do not constitute “act[s] of a grave and permanent character”36 committed with the intention of depriving George of the use of his apartment such “that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption” of
Accordingly, we affirm the trial court‘s grant of summary judgment to Hercules on its counterclaim for unpaid rent.39
Judgment affirmed. Andrews, P. J., Ellington, P. J., Boggs, Ray, Branch, and Rickman, JJ., concur. Dillard, McMillian, Mercier, and Peterson, JJ., concur fully in Division 1 and in judgment only in Division 2. Barnes, P. J., Miller, P. J., Phipps, P. J., and McFadden, J., dissent to Division 1 and concur fully in Division 2.
PETERSON, Judge, concurring specially.
I join the majority opinion as to Division 1 in its entirety. For the reasons that follow, I concur in the judgment only as to Division 2 of the majority opinion.
The majority may very well be right that our case law regarding the implied covenant of quiet enjoyment went somewhat awry begin-ning in 1923. It may also be wrong.40 But regardless of the merits of that question, the majority‘s analysis does not convince me that the subsequent century of precedent must now be set right. The majority ignores stare decisis, which in my view counsels against overruling what, by this time, some might call a venerable principle of Georgia law. Accordingly, I respectfully disagree with the conclusion of Division 2(a)(ii) overruling a near-century of our case law and, thus, cannot join in the analysis that follows it.41
“The bench and bar are entitled to rely on long-standing case law,” Norred v. Teaver, 320 Ga. App. 508, 515 (740 SE2d 251) (2013) (Andrews, P. J., concurring), and so it is here. The rule the majority overrules today is long-standing case law. The majority does not
attempt to explain why that rule is unworkable, or how the last century of experience has shown it to be unwise. Instead, the majority simply declares that the rule developed in error as though that were the end of the matter. But the principle of stare decisis does not even begin to apply until we have already concluded that a prior decision was wrong. “Indeed, stare decisis has consequence only to the extent it sustains incorrect
Our Supreme Court has identified several factors to consider in deciding whether stare decisis counsels in favor of retaining a prec-edent that differs from what we might hold if approaching the question with a clean slate. These include “(1) the age of the prec-edent, (2) the reliance interests at stake, (3) the workability of the decision, and, most importantly, (4) the soundness of its reasoning.” Harrison v. McAfee, 338 Ga. App. 393, 401 (2) (c) (788 SE2d 872) (2016) (citing State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010)); see also Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563) (2011) (Blackwell, J., concurring dubitante) (considering other factors). The majority considers nothing beyond the correctness of the long-standing case law it now overrules. At no point in the appellate briefing or oral argument did the parties challenge our precedent in any way (a failure that is itself a factor that we have recognized counsels strongly against overruling, see Benefield, 308
Ga. App. at 613 (Blackwell, J., concurring dubitante)), much less explain why stare decisis does not apply. And my own independent weighing of the applicable factors suggests little reason to overrule anything in this case.
A final consideration also supports my conclusion. Stare decisis applies with the least force to constructions of the United States and Georgia Constitutions. See Smith v. Baptiste, 287 Ga. 23, 30 (694 SE2d 83) (2010) (Nahmias, J., concurring) (stare decisis “is less com-pelling when . . . the issue is the meaning of a constitutional pro-vision“). “That is because it is much harder for the democratic process to correct or alter [a court‘s] interpretation of the Constitution than [its] interpretation of a statute or regulation.” Id. And although stare decisis applies more strongly in cases of statutory construction, see id., faithful adherence to the separation of powers counsels us that it is unwise lightly to persist in erroneous constructions of validly-enacted statutes. See Harrison, 338 Ga. App. at 401-02 (2) (c); cf. Jackson, 287 Ga. at 659 (5) n.8 (it is “perilous to rely heavily on legislative silence and inaction to conclude that a court‘s interpreta-tion of a statute is correct“). But here, the precedent we consider has not interpreted the Constitution or a statute; it has instead merely answered questions the General Assembly had not yet addressed. In such a case, separation of powers considerations are at their nadir, leaving stare decisis to operate more forcefully.
The trial court faithfully applied long-standing precedents of this Court. I would leave those precedents undisturbed and affirm. For these reasons, I concur in judgment only as to Division 2.
MILLER, Presiding Judge, concurring in part and dissenting in part.
I must respectfully dissent to Division 1 of the majority‘s opinion because there is a genuine issue of material fact for the jury to resolve on the element of causation. Although the trial court found that Hercules breached its duty to George, the trial court‘s order clearly made no finding as to causation. Where a jury question remains, summary judgment is improper. Consequently, I would reverse the trial court‘s judgment.
George‘s apartment complex, The Villas, was infected by ram-pant crime. These crimes included a homicide, a sexual assault, armed robberies, and 66 break-ins to both occupied and vacant units. Hercules‘s management was aware of each of these crimes at the apartment complex, yet it still failed to notify the tenants that many of these crimes occurred. Moreover, despite these numerous crimes, Hercules‘s manage-ment refused to employ security guards after hours or overnight, when the crimes were most prevalent, and it even rejected its own on-site manager‘s specific request for additional security. In fact, Hercules‘s management failed to tell its tenants that the security guards who were present were hired only for the purpose of protecting the property in units that were being refurbished, not for the purpose of protecting tenants and guests.
Although the apartment complex was a “gated community,” the front “gate” was only a 1x6 inch board, which did not deter foot traffic. Moreover, even though Hercules‘s management knew that the prop-erty adjacent to the apartment complex had a high crime rate, and that the areas behind the complex and along its fence line were “at the mercy” of criminals, the management only sporadically repaired the frequent holes in the fence. Importantly, the night before George‘s home invasion, an armed robber fled through a hole in the fence after robbing someone, and a police report completed after George was shot showed that the suspects fled on foot toward a road adjacent to one of the holes in the fence. Although there were security cameras on the property, the cameras were positioned too high to distinguish faces or license plates in the recordings, and for reasons unknown Hercules had rejected a former property manager‘s request to fix that problem.
Given the evidence in the record that Hercules‘s management knew that its security measures had failed to remedy the rampant crime at the apartment complex, this Court should not conclude that this is a “clear and indisputable case” that removes the issue of causation from the jury‘s purview. See Woodbury v. Whitmire, 246 Ga. 349, 350 (1) (271 SE2d 491) (1980). Accordingly, the majority‘s conclu-sion that summary judgment is proper on this ground as to George‘s claims for negligence, nuisance, and punitive damages is legal error.
This conclusion does not end this Court‘s inquiry, however, because the trial court based its ruling on its erroneous finding that George assumed the risk of harm as a matter of law. With regard to assumption of the risk, Georgia law is clear that “[i]f the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant‘s negligence, he is not entitled to recover.”
The important focus in this analysis is the scope of George‘s knowledge of the risk he faced at the apartment complex. For George‘s recovery to be barred, he must have had knowledge of “the specific, particular risk of harm associated with the activity or con-dition” that proximately caused his injury. (Citation and punctuation omitted; emphasis supplied.) Monitronics Intl. v. Veasley, 323 Ga. App. 126, 139 (4) (746 SE2d 793) (2013). As with causation, assump-tion of risk is ordinarily a question for the jury. Desai v. Silver Dollar City, 229 Ga. App. 160, 166 (5) (493 SE2d 540) (1997).
Here, the trial court erred in finding that George assumed the risk of harm as a matter of law. Certainly, a jury could find that George‘s decision to open the door that night bars his claims; however, a jury could also find that George did not appreciate the specific
The trial court‘s reliance on Landings Assn. v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012) is misplaced because that case is entirely distinguishable on its facts. In Landings, our Supreme Court relied on the plaintiff‘s knowledge that alligators are dangerous to conclude that the plaintiff knowingly assumed the risk of harm by walking around areas she knew were inhabited by wild alligators. Id.
Here, George was injured when he opened the door to his own home and was shot by unknown criminals. To conclude that George assumed the specific risk of harm would establish a standard in which a person opening the door to his own home is, as a matter of law, at the mercy of whomever lurks on the other side. This is not the current state of the law in Georgia, and thus the trial court erred in granting summary judgment on this ground.
For the above reasons, the trial court‘s order must be reversed. Accordingly, I respectfully dissent to Division 1 of the majority opinion.
I am authorized to state that Presiding Judge Barnes, Presiding Judge Phipps, and Judge McFadden join in this dissent.
BARNES, Presiding Judge, concurring in part and dissenting in part.
I concur fully and completely with the majority in Division 2, disapproving the cases conflating the doctrines of quiet enjoyment and constructive eviction but finding no constructive eviction in this case. I fully join Presiding Judge Miller‘s well-stated dissent to Division 1, as I am also unprepared to hold as a matter of law that opening the door at night automatically absolves a landlord of all responsibility for its failure to stem a pervasive crime wave or to effect adequate repairs. I write to further emphasize that, in addition to evidence that the management company breached its duty of ordi-nary care with its tepid response to the rampant crime wave on its property, a jury could also find that it breached its duty by making a substandard repair to George‘s door after burglars kicked it in. George presented evidence that the shoddy repairs made it difficult to lock the door and prevented him from throwing the deadbolt to secure the door against the invaders, who then pushed their way inside and shot him. Photographs of the door and strike plate taken by the police after the home invasion reveal just how badly the repair was made. The strike plate was crooked, was missing screws, and partially blocked the hole in the doorframe into which the deadbolt should seat. The deadbolt was the only lock on George‘s front door; the knob was for a passage door, “like a closet,” and did not have a lock built into it.
Expert testimony is not required to determine whether the burglar wrap was installed in a way that could make it difficult for the bolt to seat into the doorframe. Determining whether the hole into which the deadbolt should seat is misaligned or partially blocked by a metal wrap is akin to a child determining whether a round block fits into a square hole. See Demarest v. Moore, 201 Ga. App. 90, 91-92 (410 SE2d 191) (1991) (alleged statement by police at local meeting that deadbolt was insufficient to prevent break-ins unless the hardware was secured to a structural member of doorframe with 3 1/2” screws was sufficient to create jury question where the deadbolt to plaintiff‘s burgled apartment was attached with 3/8” and 1/2” screws). Whether that repair — which caused the deadbolt to become misaligned with the hole into which it should seat — caused or contributed to George‘s inability to close and bar the door against the armed intruders is a question well within the ken of an ordinary juror.
For these reasons, as well as those expressed in Presiding Judge Miller‘s dissent, I dissent in part to the majority opinion.
I am authorized to state that Presiding Judge Miller, Presiding Judge Phipps, and Judge McFadden join in this dissent.
DECIDED NOVEMBER 18, 2016 — RECONSIDERATION DENIED DECEMBER 15, 2016 —
Deitch & Rogers, Gilbert H. Deitch, Andrew T. Rogers, Kara E. Phillips, W. Michael D‘Antignac; David H. Glass, for appellant.
Insley & Race, Brynda R. Insley, James P. Myers, Gregory Y. Shin, for appellee.
Notes
Good Afternoon All[,] Due to school year ending and the weather inclement, I want to be able to have more coverage either with additional security or more hours. The current schedule is as follows[:] Mon- Thursday -1pm-11[;] Friday- Sunday- 8pm-6am or 7am[.] Ilona or Joe please correct me if I‘m wrong[.]
My concern is the weekends during the day and the weekdays in the evenings.
Also, we have roughly 6-10 cameras still down and also the cameras that are working need[] to be repositioned and refocused[.] Due to my observations and feed back from residents and staff we have reach[ed] the conclusion that the above is necessary to better reduce liabilities on the property. We need to step up security and surveillance. We are limited right now to foot patrol and observation and along the fence line and behind buildings, we are at the mercy of criminal activity on the property.
(Emphasis supplied.)[Hercules] does not offer or provide security or law enforcement services for resident‘s protection or protection of resident‘s personal property. [George] agrees to look solely to public law enforcement, emergency services, or fire services for security services or protection. [George] acknowledges that he has an obligation to exercise due care for his own safety and welfare and that [Hercules] is not liable for the criminal acts of other persons.