Wendall Walton, as the administrator of the estate of Wallace David Abernathy, sued UCC X, Inc. d/b/a Cedar Heights Apartments (“Cedar Heights”) and Chastity L. Fincher for Abernathy’s wrongful death. The trial court granted Cedar Heights’ motion for summary judgment, and Walton appeals. We affirm for the reasons set forth below.
To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins,
So viewed, the evidence shows that Abernathy rented an apartment from Cedar Heights in March 2001. Apartments at the complex were available for rent only to low-income persons who were 62 years of age or older. The United States Department of Housing and Urban Development (“HUD”) made rental assistance payments on behalf of the tenants. The apartments were not a nursing home, and the residents were self-sufficient.
On November 20, 2003, apartment manager Rachel BobbittRedding notified residents that the parking lot was scheduled to be resurfaced. According to the notice, “[residents] will all have to park [their] vehicles across the street,” beginning on the afternoon of November 24, 2003, and all day on November 25, 2003. On the evening of November 25, 2003, 82-year-old Abernathy parked his truck in a lot across the highway that ran in front of the entrance to the apartment complex, and he was struck and killed by a motorist’s car as he attempted to cross the highway on foot. The lot on which Abernathy had been directed to park was owned by a third party, Roger Tillary, but neither Bobbitt-Redding nor any other Cedar Heights’ representative had sought Tillary’s permission for apartment residents to park on his property.
1. Walton contends that the trial court erred in concluding that HUD regulations do not support a cause of action for negligence per se in this case. We do not agree.
Generally, a plaintiff may assert a claim of negligence per se arising from violations of federal or state statutes as long as (1) that plaintiff falls within the class of persons the*848 statute was intended to protect; (2) the harm complained of was the same harm the statute was intended to guard against; and (3) the violation of the statute proximately caused the plaintiff’s injury. The violation of a regulation, no less than that of a statute, can likewise establish that a defendant breached a duty owed to a plaintiff as a matter of law.
(Footnotes omitted.) McLain v. Mariner Health Care,
The lease agreement between Cedar Heights and Abernathy shows that HUD provided Cedar Heights with financing under section 202 of the Housing Act of 1959 and rent subsidies under Section 8 of the Housing Act of 1937. See 12 USC § 1701q; 42 USC § 1437f. Walton contends, and Cedar Heights does not dispute, that certain federal regulations are therefore applicable to the apartments. 24 CFR § 5.703 provides that “HUD housing must be decent, safe, sanitary and in good repair. Owners . . . must maintain such housing in a manner that meets the physical condition standards set forth in this section in order to be considered decent, safe, sanitary and in good repair.” See also 24 CFR § 891.180. These standards include, as relied upon by Walton, that “[t]he site must not be subject to material adverse conditions,” 24 CFR § 5.703 (a), and “[a] 11 areas and components of the housing must be free of health and safety hazards.” 24 CFR § 5.703 (f).
Walton also points to the fact that applicable regulations require that “[t]he owner must maintain the unit in accordance with [Housing Quality Standards].” 24 CFR § 982.404. These “HQS” regulations include that “[t]he site and neighborhood must be reasonably free from . . . dangers to the health, safety, and general welfare of the occupants.” 24 CFR § 982.401 (1) (1). Further, “[t]he site and neighborhood may not be subject to serious adverse environmental conditions, natural or manmade, such as . . . excessive noise, vibration or vehicular traffic.” 24 CFR § 982.401 (1) (2). Finally, “[t]he dwelling unit must be able to be used and maintained without unauthorized use of other private properties.” 24 CFR § 982.401 (k).
We agree with the trial court that Walton’s allegations do not afford a basis for Walton to show that Cedar Heights was negligent per se. Even if Abernathy was within the class of persons intended to be protected by the HUD regulations, the harm complained of is not the harm that the regulations were intended to guard against. Under
2. Walton further contends that evidence of Cedar Heights’ violation of OCGA § 30-5-8 (a) (1), which provides that “it shall be unlawful for any person to abuse, neglect, or exploit any disabled adult or elder person,” was sufficient to support his claim of negligence per se. We disagree.
For purposes of OCGA§ 30-5-8 (a), an “elder person” is defined as “a person 65 years of age or older who is not a resident of a long-term care facility.” OCGA § 30-5-3 (7.1). Neglect requires “the absence or omission of essential services” to an elder person, and abuse includes “the willful deprivation of essential services” to an elder person. OCGA § 30-5-3 (1), (10). “Essential services” are defined as “social, medical, psychiatric, or legal services necessary to safeguard the ... elder person’s rights and resources and to maintain the physical and mental well-being of such person. These services shall include . . . protection from health and safety hazards. . . .” OCGA § 30-5-3 (8).
Walton contends that Cedar Heights deprived Abernathy of an “essential service” by taking away a safe means of ingress and egress to his apartment. Although Cedar Heights barred Abernathy for a temporary period from parking his car on the apartment property, we cannot conclude that continuous and uninterrupted parking privileges constitutes an essential service under OCGA § 30-5-8 (a) such that its negligent or intentional deprivation constitutes a violation of
3. Walton further contends that Cedar Heights breached a common law duty not to injure Abernathy. Again, we disagree.
“Whether a duty exists upon which liability can be based is a question of law.” (Citation and punctuation omitted.) Barnes v. St. Stephen’s Missionary Baptist Church,
Walton shows no special or fiduciary relationship between Cedar Heights and Abernathy; rather, the relationship was one of landlord and tenant. As previously indicated, Cedar Heights’ duty to exercise ordinary care in keeping its premises and approaches safe for invitees did not extend to the public highway on which Abernathy was injured because there was no evidence that Cedar Heights exercised any control over the highway. See OCGA§ 51-3-1; Zumbado,
Walton does not, however, attempt to show that Cedar Heights’ duty arose under any principle of premises liability. Citing Bradley Center v. Wessner,
4. Walton also contends that he established a cause of action pursuant to OCGA§ 51-1-8, which states: “Private duties may arise from statute or from relations created by contract, express or implied. The violation of a private duty, accompanied by damage, shall give a right of action.” We are unpersuaded.
Walton argues that Abernathy had a contractual right to use the parking lot and that Cedar Heights’ breach of the contract further violated its independent duty to avoid harming Abernathy. However, the right to parking was not part of the lease agreement. Even if we assume that uninterrupted use of a parking lot was necessarily implied by the lease, and that Walton breached the lease by temporarily closing the lot for resurfacing, “recovery in tort requires proof of not merely a breach of a contract term, but breach of a duty imposed by law — i.e., either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of our appellate courts.” (Citations and punctuation omitted.) Peterson v. First Clayton Bank &c.,
5. Finally, Walton contends that the trial court erred in ruling that Abernathy assumed the risk of injury or death by crossing the highway, even if Cedar Heights did breach a legal duty owed to him. In light of our previous rulings, we need not address this contention.
Judgment affirmed.
Notes
See generally Banks v. Dallas Housing Auth.,