*1 (682 (1) 362) (2009). Stаte, v. Pointer 74; 249, SE2d circumstances, Under these considering the combined effect Schofield, errors, trial 812, 1, counsel’s n. supra Gregoire “has his showing met burden of a reasonable probability the result trial have his would been different if the [improper bolstering State, Ward credibility] victims’ had not been allowed. [Cit.]” (b) reversal Accordingly, Mann, required. supra. Decided March April
Reconsideration denied C.
James Wyatt, for appellant. Faulk, T. Joseph Campbell, District D. Attorney, Shelly Assistant Attorney, District appellee. ASSOCIATION,
A10A1955. THE INC. LANDINGS v. WILLIAMS et al. CLUB, THE
A10A1956. LANDINGS INC. v. WILLIAMS et al. Chief Judge.
Ellington, (collec- action, In this the estate and heirs of Gwyneth Williams tively, “the seek to recover appellees”) damages the owners where Williams was killed allegedly by large alligator. The State Court of Chatham denied in County part motion filed owners of the summary judgment joint lagoon, (“the association”) Landings Association, Inc. (“the club”).1
Club, Inc. We filed granted applications owners”) association the сlub “the for an interlocu- (collectively, appeal ruling. from that We have consolidated the association’s tory A10A1955, appeal, Case No. and the club’s Case No. appeal, A10A1956, for disposition.
The owners contend entitled to as a judgment matter of law under premises both nuisance theories of addition, that, In recovery. the owners contend under the doctrine of naturae, animals ferae responsible landowner harm caused a free wild animal the owner’s land. For the reasons below, we affirm in explained part and reverse part. order, granted summary judgment In the court same trial in favor of owners as 51-2-7, appellees’
to the claim under OCGA as discussed below. *2 summary judgment prevail under
In order on a motion § 9-11-56, OCGA genuine moving party exists no must show that there
the undisputed facts, the viewed fact, of material and that issue nonmoving party, light the demand in the most favorable to appeal judgment Moreover, on from the аs a matter law. summary judgment appellate grant of the court is denial or de of the evidence to determine conduct a novo review to whether there exists a
genuine fact, issue of material light undisputed facts, the most viewed whether favorable to the party, judgment nonmoving warrant as a matter of law (Citations Benton, Benton (2006). appellees, light most to the the record
Viewed favorable following. morning of October Williams’ shows the On yards floating lagoon lay body in a about 100 was found daughter son-in-law, Norton, Bill Williams’ home of Susan and Skidaway community Island, on The residential housesitting. years old, The Williams, who had been where was alligator bitten her that an off medical examiner determined causing right forearms, foot, hands her Williams bleed her by Douglas, alligator trapper Jack licensed death within minutes.2 (“DNR”), Georgia Department of Natural Resources searched eight lagoon trapped alligator was and killed an over body long weighed pounds. were still Parts of Williams’ feet alligator’s stomach. inside spoke neighbor was seen alive when she with
Williams last night body approximately found in the 6:00 on the before her was teenaged help boys crying lagoon. heard a woman as Three golf approximately golf path along cart on a course at drove night. 9:00 body found, known
The where Williams’ man-made park-like Lagoon side common area 15, was bordered one golf course, other side the association owned which is owned and operated The and the the club. association jointly lagoon, part interconnected own the which club Landings’ complex approximately lagoons 4,500-acre on The community. previous Camp Corpora- property’s owner, The Union death, expert dispute citing The owners that an attack caused Williams’ drug might opinion died as a of a heart attack or overdose evidence that Williams have result parts body. consumed her before began building drainage tion, 1970s so that the low-lying property developed, Landings’ developer could lagoons. added more association stocks freshwater sport fishing. with fish for lagoon complex Skidaway marshland connects wild Alligators, indigenous Georgia,
Island. which are wild and to coastal freely off island, travel on and between the marsh and The *3 Landings’ system, lagoons. and between The owners were alligators every lagoon aware that were common in and sometimes golf came onto the banks and courses.
Alligators normally animals, fish, snakes, feed on small as such frogs, turtles, in the water or within a few feet of the water’s edge. ordinarily Alligators humans, avoid and attacks on humans are very alligators people rare but oсcur when lose their fear of they people throwing foraging them, a result of food to when are night, they nesting protecting young. and when are their Alligators begin nesting long six when are about feet and reach maturity. their sexual Most attacks on humans that result in a injury fatality by alligators eight long. serious or over feet Before alligator death, Williams’ there never been an a human Landings. at The policy arranging trapper has a association to have the any alligator long, prevent
remove over that is seven feet them nesting any alligator areas, from near residential as well as that aggression people pets. Although or shows toward the association regularly inspects vegetation Landings’ in The and maintains (whether both), lagoons association, club, or owned does patrol inspect alligators. Instead, or the associa- trapper alligator tion сalls for the remove whenever resident employee reports seeing large alligator. aggressive or In the four preceding death, months Williams’ the association called for the trapper long, alligators to remove at least eleven that were over seven feet nearly
in addition to several others that size. Just one trapper alligator death, month before Williams’ removed an nearly long weighed pounds. was over ten feet directory annually, publica- At least its resident or another alligators tion, the association warns residents that live on the alligators people and that that are fed and female alligators guarding young extremely dangerous that are their can be people pets. way, In the same the association advises residents removing policy large alligators. Neither the association nor posts signs the may warn сlub at the visitors that present lagoons. competent be or near the There might evidence record that Williams knew there longer long than seven feet that Williams knew although Lagoon any size
that there were possibly she had seen on two or three occasions was evidence that the road.3 near complaint, appellees that the owners are In claimed wrongful pain suffering death under liable for Williams’ appellees alleged premises liability and nuisance. theories ways, including negligent in know- in several the owners were creating maintaining ingly in close an ideal habitat for Landings’ and, proximity and recreational areas to The residential steps failing having habitat, to take reasonable such created appellees attacks. residents and visitors “[a] provides 51-2-7, which a claim under OCGA also asserted dangerous keeps person kind animal owns or vicious who go management by allowing the animal to who, careless and liberty, person provoke injury who does not to another causes damages *4 injury by so to the his own act be liable injured.” the club nor the The court determined that neither trial alligator keeper the as a matter owner or association was the judgment granted summary in favor of the therefore, and, law appellees’ 51-2-7.4The trial claim under OCGA owners as to the summary judgment filed the motions for owners denied the court remaining appellees’ claims. alligator that, because attacks humans 1. The owners contend alligator prior had been no attacks on rare and because there are human at jury Landings, could The there is no evidence from which alleged In the on Williams was foreseeable. find that the attack they that, could alternative, contend to the extent that the owners they anticipated knew the attack because have Landings’ lagoons, knowledge of the risk not in The was superior Williams, who also knew that there were to that of lagoons. is that, addition, In the owners contend because there in the particular alligator regarding long how the attacked no evidence Lagoon from which the had there is evidence Williams been prevented they jury find that could have the could alligator Specifically, had an Bill Norton testified that he knew that Williams seen car, alligator sitting they passed the when an on the side The “once or twice” from opined sightings, Based on he that Williams knew there were of the road. these Landings, Bill with her. Norton not asked but he never discussed (or alligator alligators) length had He of the that he and Williams seen. to estimate testified, however, feet he although, more than seven believed he never seen stated, In long Lаndings, to tell size he “it’s hard from distance.” Williams, addition, son, that, driving at while he and Williams were Williams’ Russell testified was not had seen one side of road. Russell Williams alligator. length to asked estimate the appellees appeal ruling. did not from that inspecting removing large alligators. Georgia occupier law,
Under an owner of land is liable to injuries ordinary [its] “for invitees caused to failure exercise care keeping premises approaches safe.” An OCGA 51-3-1.5 obligation keep premises duty owner’s to safe “includes a inspect premises possible dangerous to discover conditions precautions [it] which protect does not know and to take reasonable dangers the invitee from which are foreseeable from the (Citation arrangement omitted.) premises.” punctuation and use of the Depot U.S.A., Thomas v. Home Ga. (2007). duty ordinary Still, owner’s exercise care “is absolutely prevent injury proprietor
not (Citation omitted.) safety ensurer of the itsof customers.” Id. “The ground proprietor’s knowledge superior true is the instrumentality perilous danger persons going therefrom to (Citation upon property.” punctuation Id. Gener ally, ordinary learns, when an invitee or in the exercise care the premises learned, invitee should of a thus, have hazard on the personal safety, the exercise of for his or can care her avoid being injured, the owner is not if the liable invitee fails to exercise injured. Kroger Co., such care and is Robinson v. statutory duty keep premises
Further, the owner’s safe physical property; not limited to defects in the owner’s extends upon premises in “risks the nature of vicious animals *5 ill-tempered likely upon visiting individuals to inflict harm invitees (Citation omitted.) upon premises.” punctuation Beard v. (346 (1986).6 901) Fender, 465 that, 179 Ga. SE2d It is axiomatiс general proposition!,] negligence, contributory
as a of issues negligence ordinary safety and lack care for one’s own are susceptible summary adjudication not but should be ordinary . resolved able minds trial manner. . . Where reason- differ as
can to the conclusion to be reached with regard questions owner/occupier to an whether breached duty to invitees an care and whether invitee exercised personal safety, summary adjudication reasonable care for is appropriate. not 5 purposes argument, For of this the owners do an not contest Williams’ status as invitee. (2010-2011 ed.); generally Adams, Georgia Torts, § See Charles R. Law of 4-5 Restate (Second) (A 2010) (1965, Torts, updated August possessor may ment be to of land liable likely doing to
visitors its failure to exercise reasonable care discover that animals are warning give adequate tо do acts that are harmful to visitors to enable the visitors it.); protect against the harm or them avoid otherwise to see also Division infra. omitted.)
(Citations
Kroger
punctuation
Co., 268
v.
Ga.
Robinson
(1).
occupier
closely
Thus,
how
an owner
739-740
issues about
par-
premises
approaches,
whether
of land should monitor its
vigilant
foreseeable, and
invitees must
hazards are
how
ticular
questions
settings
safety
that,
“are all
own
various
by juries
general,
as a matter
fact rather than
must be answered
by judges
Brown,
American Multi-Cinema v.
as a matter
law.”
(2)
442, 445
“The trial court can conclude
negligence on
the facts do or do not show
as a matter
law that
plain,
plaintiff only
part
is
where
evidence
of the defendant
(Citations
undisputable.”
punctuation
palpable and
(1).
Kroger Co.,
v.
Ga. at 739
Robinson
alligators pose risk
case,
In
evidence that
this
there
some
circumstances, as noted above.
harm to humans under certain
reported
although
Further,
there
been no
attack
person
is evidence that
the owners were
We-
that the owners
this case failed to
aware of
risk.7
conclude
upon
danger arising
was a
show that
arrangement
premises
and use of their
which
not
from the
law,
matter of
precautions
such that the owners had
foreseeable as a
danger.
In
invitees
take reasonable
that,
addition, we
the owners failed
show
as a
conclude that
equally
dangers
might
she
law,
of Williams
understood the
matter
walking
failed
near the
and that she nonetheless
encounter
disputed
safety.8 Given
care
her own
exercise
evidence, we
that reasonable minds could reach different
conclude
prem-
regarding
appellees’
the essential elements of
conclusions
correctly
Consequently,
claims.9
as the trial court
ises
adjudication
summary
appropriate
concluded,
on these
is-
sues.10
(1) (b)
Snowden,
Piggly Wiggly
Southern
See
(Although plaintiff
that conditions on the owner’s
show that
owner knew
subjected
by showing
invitees to an unreasonable risk of criminal attack
that the
*6
plaintiff
prior substantially
activity
property,
criminal
on the owner’s
a
owner knew
may
similar
foreseeability
ways.).
establish
8
other
inconsistency
particular,
logical
the
the
that it is
In
we note
between
club’s contention
appreciated
danger presented by
undisputed
alligators
the
that
the
owners’
Williams
citing only
alligators
lagoons,
had
one or two
near the
to evidence that Williams
seen
small
any knowledge
danger
the
and the club’s claim that it lacked
roads
lagoons,
though
alligators
dealing
presented
the
in its
had been
on its
even
with
lagoons
years.
golf courses and in its
for over 35
9
agrees
jury
danger
that
of an
Wenote that the dissent
that a
could conclude
the
that,
going
In
find
on a
was
foreseeable to the owners.
on to
as a
law,
protect
danger
precautions
the
owners
their
from that
matter of
taken
the
to
invitees
circumstances,
view,
dissent,
jury.
usurps
reasonable under the
the
in our
the role
10
(Where
(3)
Brown,
was
See American Multi-Cinema v.
327 2. The owners contend that the on their property were indigenous and, therefore, that, wild animals under the doctrine of naturae, animals ferae the had owners to Williams from harm from an alligator. contend, the owners Consequently, the trial court erred in denying their motions for on summary judgment all of the claims. appellees’ animal,
An animal a is, ferae naturae is wild that one that not is (9th classed as 2009); “domesticated.” Black’s Law Dictionary ed. (179 Smith,
Candler v. App. 667 SE Sо as long the owner or possessor land does not own or an keep indigenous wild animal, case, as in this “the law does not or require owner of land possessor anticipate of[,] or guard an invitee (Citation from[,] harm against animals ferae naturae.” and punctua- (182 Gibbs, tion 123 Williams v. Ga. SE2d App.
164) (1971) case, In (physical precedent only).11 that a service station agents up sign just large patrons owner’s an set such area before a concentration of would exit, sign patron collapsed cross area that and that a did not see the floor until it was it, tripping summary judgment too late to avoid over the owner not was entitled to on the claim.); patron’s premises liability Augusta Country Blake, App. Club Ga. 655-656 (1) (Where 812) (2006) magnolia was evidence that club owner knew that property constantly dropped pods walkways, trees on its seed and other debris onto walkways inspected mоrning slipped pod were not cleaned the visitor on a seed falling, that was fell, step pod on a that the visitor did not see the seed owner before claim.); premises liability not entitled to a directed verdict on the visitor’s Sutton v. Winn Dixie 245) (1998) (Where Stores, App. Ga. there was evidence store knowledge owner had actual that several hours hard rain caused rain water to entrance, sign voluntarily place warning near accumulate that the owner undertook minutes, employee mop every and floor mat at the entrance and to have an employee five directed, mop puddled failed to floor and that a customer did not see the water warning sign slipped fell, summary before she owner was entitled to claim.); judgment premises liability Snowden, Piggly Wiggly on the customer’s Southern v. (Where (1), that, Ga. at 149-150 there was evidence before customer was abducted attacked, parking violently many previous from a store lot and the store owner knew of having purses frequent presence menacing incidents customers snatched and of the entrance, many employees parking loiterers near the store the store’s considered the lot unsafe, lot, prior parking and that the customer did not know of the crimes in the claim.). premises liability owner was not entitled to a verdict on directed the customer’s hand, keeps On the one other who owns or a wild animal which is its inherent nature dangerous presumed “a fierce and beast” to know of the animal’s ferocious habits and subject any injury through any nature and is sustained others vicious acts naturally Smith, (2); that the animal is inclined to commit. Candler v. at 670-672 (liability any keeper dangerous see also OCGA 51-2-7 owner of “a animal of vicious domesticated). kind[,)” is, above, granting that wild or we As noted the owners’ motions for 51-2-7, summаry judgment appellees’ claim under OCGA the trial court concluded kept any alligators property, that there was no evidence that the owners owned (The (b) including Georgia §§ one that killed Williams. See also OCGA 27-1-3 State of owns state.); (Possessing propagating regulated by all State.). wildlife this 27-2-10 addition, appellees appeal ruling. that, although did not this In we note the owners hospitable created maintained that were stocked the with fish, there is no evidence that took these or other actions to exert an owner-like *7 purpose providing alligators. control over the or even for the intended a habitat for (Mich. 1987) (Under Co., 36, Michigan v. See Glave Terminix 407 NW2d 37 the doctrine poisonous injured
patron snake on a encountered a when she leading Id. at 677. The service station’s restroom. to the sidewalk duty keep grass proprietor patron the breached a claimed that the prevent building in order to snakes from around the mowed short coming upon Id. held that the owner’s failure the sidewalk. We only keep grass be mowed short “could near the sidewalk the [owner] negligence have foreseen that there were if the should encouraged by would be hazards in the area which snakes other using persons grass menace to which would constitute a hand, owner, “in If, Id. 678. on the other sidewalk.” ordinary care, the condition could not have discovered exercise duty injury, [patron’s] proximately it breached no caused the (Citation punctuation [patron].” Id. care owed to premises snake on the no one seen a owner testified that property, during years and there was no he had owned the the six contrary. undisputed evidence established as Id. The evidence to therefore, of a snake on the law, a matter of reasonably Id. In the absence of not foreseeable. sidewalk was part danger, duty knowledge held, was no a we such keep grass short in order owner to mowed of the against therefore, the owner was not liable and, that hazard visitors patron’s injuries. for the Id. of animals ferae not view the common law doctrine
We do requiring departure Georgia’s general naturae, therefore, from as duty principles regarding to exercise care a landowner’s keeping premises have To extent the owners would us safe.12 the exception of animals ferae naturae out an under the doctrine carve and find that an owner or immunity
occupier enjoys of land a blanket liability any harm a free wild animal on the caused may Although land, do a defendant be owner’s we decline to so.13 tamed, naturae, confined or otherwise controlled of animals ferae where dеfendants never animals, departure, keepers encouraged the defendants were not the animals.); but fact (Under (N.C. Tillett, 297, the doctrine of animals Swain v. 152 SE2d 301-302 naturae, keeper person manage, “undertakes to is a of an animal where the ferae do[,]” by tending, control, general are accustomed or care for the animal owners life.”). boarding, “supplying feeding, pasturing, animal] with necessaries of and otherwise (Ariz. 2004) (The State, doctrine of animals ferae See also Booth v. 83 P3d injuries negligence wild animals otherwise does bar claims based on caused naturae injuries analysis negligence such which remains focused alter the traditional the of a claim for injury protected of whether the defendant could have foreseen issue (The (Alaska 1979) it.); State, against have few cases that been Carlson v. 598 P2d damage published animal the animal is not issue of causеd when agree, that, “appear a wild if a landowner knows that under the control the defendant creating dangerous property, has either to remove the situation on his he animal danger danger.”). people who or warn the threatened 2008) (Because (N.H. Zilm, requiring that a A2d Cf. Belhumeur animals, neighbors by indigenous plants potentially posed to his landowner “abate all harm
329 summary judgment where, Gibbs, entitled to as in Williams v. there anticipated presence is no evidence that owners should have plaintiff, injured that of wild animal no issue this regarding anticipated case whether the owners should have presence lagoons. in their Rather, of the evidence is undisputed knowledge that the owners had actual that commonly present throughout lagoon system. Because the undisputed evidence does not establish as a matter law that the owners could not courage alligators fоresee would en- people using
that would constitute a menace to adjacent golf supra, courses, 1, common areas and see Division judgment owners are not entitled as to a matter of law under the doctrine of animals ferae naturae.
3. The association contends that there is evidence from which jury and, therefore, a could find that it a maintained nuisance it is judgment appellees’ entitled to as a matter lawof on the nuisance claim. general agreement incapable any “There is that nuisance is (Citation comprehensive punctuation
exact or ted.) definition.” omit (1) (522 Co., Fielder v. Rice Ga. Constr. 239 365 SE2d (1999).14 13) Although Georgia Nuisances Code defines a nui very broadly “anything hurt, inconvenience, sance damage as that causes grounded another[,]”15 nuisance law fundamental premise everyone right property has the his or use her as he provided doing occupier fit, she sees so the owner does unreasonably corresponding right invade the others use property Co., their own see fit. Wilson Evans Hotel Ga. (1) (4 155) (1939); Empire Laundry 498, 501 Holman v.Athens 207) (1919).16 private Co., Thus, SE Ga. nuisance naturally upon property impose insects located his would an enormous and unwarranted burden!,]” neighbors negligence independent a landowner “cannot be to their liable [landowner],” and, possessed therefore, of wild acts animals that are not or harbored summary neighbor’s judgment the defendants were entitled to on a nuisance claim that was negligently allowing property.); based landowners’ wild bees to nest in a on their tree (II) (Tex. Smith, (Requiring Nicholson v. 986 SW2d 63-64 that a landowner affirmatively indigenous guests patterns species every warn “about the and behavior plants potential pose person’s safety, wild animals and which threat as well threatf,]” impose еxtent on as the would an “enormous” burden the landowner and (dicta). establishing liability.”) “would border an absolute 782) (1979) Gunnells, City See also Bowman v. 810-811 (“Neither court, knowledge, give precise legal this nor other to our has been court able apply pornography definition of nuisance that would all situations. It has been said that you you category.”). cannot defined but know it when see it. A is in similar nuisance OCGA 41-1-1. 16 private nontrespassory A nuisance is a invasion of another’s interest in private enjoyment enjoyment [interests . use of land. . . in the use and protected by private [are] land . . . the interests that are When actions nuisance. occupier’s activity real
exist when an owner
*9
type
generates
smoke,17
of
noxious
amount
an unreasonable
something else
invades the real
odors,18water,19 noise,20or
property, injury
causing damage
property
to a
another,
to the
of
property, or other harm.
fаtally
complaint,
appellees
In
the
claim that Williams
allege
anything
property, they
injured
do not
on the owners’
property
generated
the
on their
invaded
the owners’ activities
peaceful
thereby infringed
right
appellees’
of
on their
and
judgment
Accordingly,
enjoyment.
as a
association is entitled to
the
appellees’
claim,
trial
and the
court
matter of law on the
nuisance
ruling
664,
104
Jarnette,
in
v. De
Ga.
otherwise. Cox
erred
(a) (123
16) (1961) (Because
plaintiffs pur-
SE2d
675-676
private
slipping
ported
nuisance,
was based on her
for
which
claim
premises,
falling
no invasion of an
on the defendant’s
involved
enjoyment
plaintiffs
land,
of
interest
use
nuisance.);
complaint
for
see
Johnson v.
state
claim
also
failed to
103) (1983)
(1) (307
App. 585,
SE2d
Co.,
Ga.
585-586
Ga.
(physical precedent
167
Kraft
(accord).
only)
transcripts
appellees filed
that,
4.
because the
The club contends
Dudley
Joseph
depositions
Maffo,
and Dale
O’Quinn,
Joel
summary judgment
hearing
the owners’ motions
after
on
in
consent,
trial court erred
or the owners’
without leave
court
considering
testimony.
concluded, even without con-
We have
sidering
testimony
experts,
are not
owners
these
potential liability
judgment
as a matter of law their
entitled to
supra. Accordingly,
§
1
See Divisions and
under OCGA 51-3-1.
considering
in
trial court abused
discretion
issue whether the
testimony
challenged
is moot.
part.
Judgment
part
J.,
Barnes,
in
in
E
and reversed
affirmed
McFadden,
Phipps,
J.,
J.,
Miller,
J.,
Andrews and
P.
P
concur.
part.
part
Doyle, JJ.,
in
dissent
concur
dissenting
part.
Judge, concurring
part
ANDREWS,
happened,
Although
saw
there
evidence that
one
what
alligator present
lagoon
eight-foot-long
in a
interests,
only
[appellee] may
these
recover not
harm
an invasion of
it,
arising
enjoyment
itself
but
from acts that affect the land
and the comfortable
family
and to his chattels.
also
harm members
his
2010).
(Second) Torts,
(1979,
through April
821D
current
Restatement
17
(6).
Co.,
Empire Laundry
At the time of the Ms. Williams was at the by daughter owned her house and son-in-law at The gated community 8,500 residential of about residents located on Skidaway 4,500 Island, acres a coastal barrier island near Landings developed The on swamps Savannah. land which The was included lagoons natural with fresh and brackish and water was by prime marshes, bordered of saltwater all which was habitat for alligators indigenous alligators to the area. Wild have lived occupied by Landings Landings land The now before The was developed, during Landings developed the time The was in the day. develop Landings, swampy 1970s, and to this The To areas were shaped by system developers drained and then into a of about lagoons, including lagoon allegedly Ms. where Williams was alligator. necessary attacked The serve the function of providing management Landings drainage storm water for The preventing reverting swamp. those areas from back to Before the lagoon system swampy built, lived in or near the areas nesting nearby and moved from areas to these areas marshes. built,
After the were live in continued to lagoons Landings swamps before, where the moved across The lagoon lagoon nearby and to marshes. history
This makes clear that have existed at the site Landings developed The of before and since it was because are lagoon showing alleged There is evidence that the or near occurred in number Landings Landings lagoon portion 15. The The Association and Club each own a of 15. The Landings areas, Landings Association is the homeowners association at The and owns common including lagoon bordering portion lagoon abutting a common area of 15 and the that area. Landings golf Landings, including golf The Club owns and other recreational facilities at The bordering lagoon portion lagoon abutting Landings 15 and course the course. The Lаndings of Association maintained all 15under a contract with The As set Club. forth opinion, majority purpose appeals, in the Landings The these Association and The assumed, owners, jointly are Club sometimes referred to as the it is without deciding, alleged that Ms. Williams was an invitee of the owners at time attack. (77).
indigenous 27-1-2 As set forth “wildlife,” as defined OCGA (b), and are not owned Landings these are wildlife in OCGA 27-1-3 Association, Club, or or controlled private entity. any other ownership jurisdiction all of, over, and control of title, declared to be
wildlife, as defined in this sovereign Georgia, capacity, controlled, be in its State regulated, disposed of in with this title. accordance for the benefit of is held trust the state Wildlife ownership private be and shall not reduced citizens except specifically provided All for in title. wildlife this custody Georgia to within the is declared be the State Resources] [Georgia Dеpartment pur- of Natural regulation poses management accordance with Georgia, department, However, the State this title. from suit and shall not be immune and the board shall person, any damage life, caused liable directly indirectly wildlife. *11 (b). only Georgia 27-1-22, 27-1-3 Pursuant to OCGA
OCGA (DNR), persons Department authorized Resources Natural authority capture, take, or DNR, with the have the contract alligators Landings. transport indigenous The wild at living population alligator Despite of wild Landings developed moving 1970s, in the in The since was about alligator Landings at The never been an attack on there had alleged in October 2007. No attack on Ms. Williams until alligators posted lagoons warnings at the or about were on-site Landings Landings property, The Association The but elsewhere printed publications and on-line that wild residents warned dangerous. alligators Landings The Neither Land- at The could capture, Landings attеmpted ings nor The Club Association restrict the movement remove, or otherwise control or custody manage- alligators owned the State and under policy Landings ask The was to any ment of the DNR. Association aggressive alligators long over seven feet DNR to remove larger aggressive alligators pose alligators could on the basis that Landings danger. or The made The Association No effort was large inspect Landings or other areas to look Club to — policy aggressive alligators to ask the DNR to remove they reported. By permit, alligators the DNR were seen these alligators. policy trapper was also authorized a to remove they directly report alligator DNR an that residents could call thought they report alligator to The removed, or could should be Landings Association, which would confirm location of policy, and then cedithe to ask for this DNR removal. Under Landings by numerous have been removed from The trapper. DNR-authorized daughter May 2000, Ms.
Since Williams’s and son-in-law owned Landings at The house where Ms. Williams had over the visited years many staying occasions, sometimes for two or three months housesitting daughter at a time. Ms. Williams was while her away alleged alligator son-in-law when the the attack occurred park-like house, October 2007. Behind common area bordered lagoon golf 15 on one side and a course bordered it on the other side. lagoon itself was about 300 feet behind the house. There is support walking
evidence to the contention that Ms. Williams was lagoon alone somewhere in these areas near the around 9:00 on an night alligator. October when she was attacked Ms. Williams’s daughter they testified son-in-law were aware at The and in 15. Ms. Williams’s son-in-law remem- being bered Ms. Williams with him on one or two occasions at The riding when saw while his car and he stopped alligator. the car so she As could look the to Ms. Williams’s knowledge appreciation danger posed by alligators Landings, her testified: son-in-law your knowledge
Q: And to then Ms. Williams was aware Landings? that there were A: Yes. — you
Q: instance, Did she ever I comment about have a fear of snakes. Did she have fear
anything you like that that knew of? *12 specifically, you I mean, than, know, A: Not other respecting in normal one animals. wild right. you any
All Q: Did ever have her discussion with any alligators, comments how one about should around alligators, get close, for instance don’t feed the don’t too anything like this? — quite frankly,
A: No. There was never there was never person. intelligent reason to. I mean was she an She — — question my guess I would I have to answer that as was mind talking year not a
it’s like to five old stay away alligators. child . . . from
Similarly,
visiting
that,
Ms. Williams’s son testified
while
with his
driving
he
sister The
recalled
at The
with his
alligatоr.
“[W]e
when
an
on
mother
saw
He testified:
did see one
my
saying
you
that,
know,
the side of
road. And I do
recall mother
alligators,
something
like
she would not
that she did not
to the effect
go anywhere
knew
to
near them.” Ms. Williams
want
staying.
she was
behind the house where
with
located
premises liability
application
require
law in
These facts
relating
conjunction
naturae”
to
of “animals ferae
with
doctrine
duty
protect
an
to
an invitee from
a land owner’s
premises.
indigenous
51-3-1,
OCGA
animal on the
Under
wild
protect
duty
premises
to
to
exercise
care
owner has a
premises
of which
risks of harm
invitees from unreasonable
Kroger
superior knowledge.
Co., 268 Ga.
Robinson v.
the owner has
require
duty
This
does
735, 740
not
safety
premises
invitees, but to
“reason-
to
take
owner
ensure
dangers
precautions
protect
from
invitees
foreseeable
able
premises.”
arrangement
Id. The doctrine оf
or use of the
recog-
meaning
nature,
wild
naturae,”
animals of a
“animals ferae
premises
owns and
nizes
rather than the
owner
state
premises,
provides
indigenous
animals on
controls
general
wild
liable for the acts of
“a landowner cannot be held
occurring
indigenous
animals,
is,
wild
naturae, that
animals ferae
his or her
actually
reduced the
unless the landowner has
non-indigenous
possession
control, or
introduced
wild animals
(Tex.
Smith,
SW2d
the area.” Nicholson v.
animal into
1999).
require
“Generally,
App.
the owner or
the law does not
(an)
(the)
guard
anticipate
possessor
invitee
of land to
Supp.,
against
Animals,
from animals ferae naturae. 3 CJS
harm
(Tex.
App.
citing
Willenborg,
Exactly “ordinary what constitutes care” varies with magnitude danger the guarded against. circumstances of the to be impossible prescribe Since it definite every rules in advance combination of circumstances may arise, which the details the standard must be filled in particular negligent, But, each case. to be the conduct must light recognizable be in unreasonable of the risk harm. particular applied be standard of care to and whether usually
the owner breached that standard issues to be by jury. However, decided these issues be decided plain palpable in the court cases where reasonable minds cannot differ as to the conclusion to reached. (Citations punctuation Corp. Haskins, Lau’s
491, 493
The doctrine of animals ferae
by recognizing
naturae informs this
issue
nature of the risk
posed by indigenous
alligators
unpredictable
wild
is often
indigenous
alligators
uncontrollable. The
in
wild
Landings obviously posed
generalized
midst
alligator
risk of
person,
magnitude
attack on a
but
risk was
given
history
minimal
that no attack had ever
in
occurred
of The
Landings
development
alleged
in
from
the 1970s until the
lagoons
Ms. Williams
2007. There is no evidence that
dangerous
created
condition which
caused
act
unexpected
ways
or abnormal
caused
to be where
normally
were not
Nicholson,
62-63;
found. See
986 SW2d
(Alaska
(factual
compare
State,
Carlson v.
manage, Landings. remove the The lack along owners, control with fact that population constantly moving and out adjacent marshes,
and out of The into makes unreason- imposed able to find that care the owners *14 large Landings continuously patrol all The to look and remove dangerous alligators shifting population. potentially There is prior knowledge of existence or owners had no evidence that the eight-foot-long alligator allegedly wild which attacked of the location require ordinary Williams, did not them to find Ms. care alligator prior reasonable, not It is also to the attack. remove the custody management possibly wildlife, odds with DNR duty ordinary required the owners to fence care find alligators lagoons, or to otherwise fence off into the barricade duty Landings alligators. find of care from the To The required similar measures to to undertake these or the owners alligator attempt attack is or reduce the risk of wild to eliminate extraordinary imposing care and to exercise tantamount duty imposed safety.22 making ensurers of the owners invitees’ ordinary care, not to exercise on owners under OCGA 51-3-1 is require extraordinary owners to ensure care, and does not safety of invitees. precau- palpable that the this case make clear and facts against guard minimal risk of an owners to
tions taken
—
light
of the nature of the risk
reasonable
attack were
alligators
presence
at The
residents of the
of wild
the owners warned
Landings
pursued
policy
requesting
DNR,
whiсh
large
aggressive
custody
managed
alligators,
to remove
reported.
though
they
Ms. Williams
seen and
Even
were
received the
there is no evidence that she
a resident and
warnings
alligators given
she
to residents of
about
frequently at The
risk. Ms. Williams visited
was aware
Landings staying
time,
aware of the
months at a
and she was well
lagoons,
Landings
and in the
wild
at The
specifically
she was
knew
were
where
alleged
appreciated
walking
night
attack,
the fact
many
dangerous. Although
are
circumstances
that
may require
risk,
there is no
to warn an invitee
a latent
owner
requirement
risk
invitee knows
about an obvious
which the
warn
Corp.,
I find as matter of law
Finally, assuming found even the owners could be failing protect Ms. from the to exercise care to Williams Association, As of The the resident homeowners members could, course, extraordinary to reduce the risk of an conclude that measures undertaking. worth *15 alleged alligator knowledge I attack, conclude that risk her precluded recovery summary judgment. and entitled the owners imposing liability Because the fundamental basis for on an owner superior knowledge risk, under OCGA 51-3-1 is the owner’s no of the imposed equal knowledge be can where the invitee had consequences risk and could have avoided the of the defendant’s negligence ordinary Crum, with exercise of care. Davis v. Ga. 849) (2003). App. 682, 684 When Ms. Williams walked night alone at near the she was aware of the risk she alligator, regardless dangerous could encounter anticipate wild she whether alligator.23“[A]lthough could size exact of the the issue plaintiffs diligence safety of a ordinarily exercise due for his оwn question summarily jury, adjudicated plaintiffs knowledge palpable.” where the risk clear and (Citation punctuation Id. 685. at Ms. Williams had knowledge equal of wild The dangerous. By and knew wild walking night lagoon, alone at near the either risk she assumed the encountering dangerous alligator in dark failed Gay Co., exercise care to avoid it. Clark Dress v. Carla App. 157, Judge Doyle joins opinion. I am authorized to state that in this Decided March April 14, Reconsideration denied Ballew, Ill, Windsor,
Barrow & Walter W.Ballew Travis D. Landings Association, Inc. Savage Turner, Turner, Britt, & Robert B. C. Dorian M. David Snipes, Conner, B. Daniel for Williams et al. Johnny
Forbes, Pool, Forbes, G. Foster, Foster & Morton A. Landings Club, Inc. support only I find no evidence to the claim Ms. Williams saw “small” Landings. The record size of she while does show the saw son-in-law, riding riding in a car her son with or son-in-law. Ms. Williams’s who was with Ms. alligator, only Williams on one occasion when saw an did not he testified he believe any alligators long, but seen over seven feet he conceded “it’s hard to tell the size from a distance.”