Kim Jackson appeals the trial court’s order granting Post Properties, Inc.’s (Post) renewed motion for summary judgment in this premises liability action. Jackson was raped by an unknown assailant after moving from an upper level unit to a ground level unit at Post Brook Apartments. She contends that issues of material fact involving inadequate security preclude summary judgment. We agree that issues of matеrial fact exist and, therefore, reverse the trial court.
We review de novo a trial court’s grant of summary judgment.
Bandy v. Mills,
Thе general rule is that a landlord is not an insurer of his tenant’s safety,
Here Jackson knew of the risk of third-party criminal attack. Before Jackson was raped, another tenant had been raped in a ground floor apartment at Post Brook. When this rape occurred, Jackson lived at Post Brook in an upper level apartment where she had previously been the victim of an unsolved burglary. Post, in response to the rape, conducted town hall-type meetings with the residents and distributed community newsletters to address the residents’ safety concerns. Jackson learned by attending these meetings and receiving the newsletters
“[0]rdinary [care] is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” OCGA § 51-1-2. “Exactly what constitutes ‘ordinary сare’ varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm.” (Citations and рunctuation omitted.)
Lau’s Corp. v. Haskins,
supra at 493 (2). Whether a party has failed to exercise ordinary care may be decided by the court only in cases in which “undisputable, plain and palpable faсts exist on which reasonable minds could not differ as to the conclusion to be reached.” (Punctuation omitted.)
Bishop v. Mangal Bhai Enterprises,
1. A question of fact exists as to the proper use of the window locks. Jackson alleges that the assailant entered through her sun-room window which was closed and locked. She claims that the night she was raped, the sunroom window was locked with the manufactured “spoon lоck” and the “thumbscrew” locks which Post provided to all ground floor residents. Post contends that Jackson was improperly using the “thumbscrews” and, as a result, the assailant was able to gain entry through her sunrоom window.
Our review of the record reveals a factual issue regarding the proper use of the “thumbscrews.” Jackson admits in her deposition that she had been told by Post to place the “thumbscrews” at the bottom of the top frame. The night she was attacked the “thumbscrews” in her sunroom window were six to eight inches above the base of the frame so that she could more easily open the window for fresh air. The Executive Vice President of Services for Post deposed that Post had previously disseminated information in newsletters to residents regarding a proper use of the “thumbscrews.” The newsletters indicated that a proper use of the “thumbscrews” required placing them at a point approximately six inches from the bottom. When Jackson was raped, her “thumbsсrews” were placed at a point in compliance with this instruction.
2. Post contends that Jackson was responsible for reporting defects in the window locks, and her failure to make any report precludes its liability. Post required all residents, including Jackson, to sign a document stating that residents are responsible for their own safety and that they will report any defect in apartment lоcks to Post in writing. Based on this document, Post contends that because Jackson did not report any defect in her locks, it is not responsible for her injuries. This contention presupposes that Jackson objectively knew of a defect in her window locks. Jackson deposed that she knew the windows were “flimsy.” Post had reason to know of this defect prior to Jackson’s rape because residents had complained about the flimsy nature of the windows at one of the town hall meetings after the first rape.
In
Demarest v. Moore,
3. Post contends that Jackson failed to exеrcise ordinary care by moving to a ground floor apartment. Post avers that it is significant that Jackson moved from an upper level apartment to the ground floor while aware of the risk of criminal attack on the ground floor. This argument is untenable. By its very nature, it suggests that Post admits that its apartments were defectively designed for even having first floor apartments and that any tenant who lives оn the first floor assumes all risk of criminal attack. In any event, a jury must determine whether Jackson’s move to a ground floor apartment was a failure to exercise ordinary care for her own safety.
4. The trial court improperly relied on our decision in
Post Properties v. Doe,
5. Issues of fact remain as to whether the courtesy officer was utilized in a negligent manner. In response to the crimes against persons and property at Post Brook, Post employed a.courtesy officer for resident and property protection. When a landlord acts to provide security, it must do so in a non-negligent manner.
Cooperwood v. Auld,
6. Additionally, a jury determination is required as to the аdequacy of Post’s maintenance of the property’s lighting and landscaping. Summary adjudication on an element of negligence is appropriate only where “undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.” (Punctuation omitted.) Bishop, supra. We conclude that the record contаins no such set of facts.
Viewing the undisputed evidence in a light most favorable to Jackson, the non-movant, there are questions of fact to be resolved by a jury. Accordingly, the trial court improperly granted summary judgment to Post. Therefore, we reverse and remand this case for further proceedings not inconsistent with this opinion.
Judgment reversed.