What’s Your Status? A Recent Update on Landlord Liability
By: Marvis Jenkins
Third-party assault cases, commonly referred to as negligent security cases, have been on the rise for decades and are known for their exaggerated verdicts. These cases involve a victim (plaintiff) being “attacked” in some manner by an assailant while on the property of another. The property owner and/or company hired to manage the property are usually named as the defendants and the assailant often remains unidentified or unapprehended when the civil suit is filed (defense counsel routinely file a notice of non-party fault to allow a jury to apportion fault to the actual perpetrator(s) should the case go to trial).
The legal framework for third-party assault cases requires a plaintiff to prove the traditional elements of negligence: (1) duty; (2) breach; (3) causation; and (4) damages. Lau's Corp. v. Haskins, 161 Ga. 491 (1991). The general rule regarding premises liability is that a property owner/landlord does not ensure an invitee’s safety against third-party criminal attacks and any liability from such attacks must be predicated on a breach of duty to exercise ordinary care in keeping the premises safe. Johns v. Hous. Auth. for the City of Douglas, 297 Ga. App. 869, 871 (2009). However, the status of the victim on the property will determine the type of duty owed by a property owner/landlord.
Under the law, an invitee is defined as one who has business relations with the landlord or whose presence is beneficial to both parties, while a licensee is one who is “permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.” Cham, et al. v. ECI Mgmt. Corp. 2021 WL 954754, *3 (Supreme Ct. of Ga., March 2021). A licensee enters a premises at their own risk and the property owner owes no duty as to the conditions of the premises, except that the owner should not knowingly let a licensee run into a hidden peril or willfully or wantonly cause injury. Id. A third category is trespasser, who has no permission to be on the property and to whom a landlord owes no duty “except to refrain from causing a willful or wanton injury.” Id.
In March 2021, the Supreme Court of Georgia clarified the first prong of the negligence analysis in third-party assault cases by comparing and defining a landlord’s duty to a tenant, who is an invitee on the property, and its duty to a guest of a tenant. In Cham, et al. v. ECI Management Corp., the guest of a tenant of an apartment complex was killed during an armed robbery in the apartment complex’s parking lot. Suit was filed against the apartment complex owner and management company, alleging the defendants negligently failed to secure the premises from criminal activity. The trial court jury returned a defense verdict, which was appealed on three issues. The Supreme Court of Georgia certified just one question: Did the trial court err in charging the jury 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?
A divided Supreme Court of Georgia found there was no error and upheld the lower courts’ rulings that allowed jury instructions on the landlord’s responsibilities to both an invitee and a licensee. In Cham, the deceased lived with his girlfriend at the apartment complex. Conflicting evidence was presented at trial as to whether the living arrangement was known to or permitted by the landlord (the deceased was not a signatory on the lease, though the tenant claimed he was present when touring the apartment and when the lease was signed, and that management agreed to allow him to live on the premises). The Supreme Court of Georgia explained that, under the facts, at least slight evidence was presented at trial from which the jury could have concluded the deceased guest was a licensee with respect to the landlord, rather than an invitee.
The Cham decision reaffirms the general rule that a social guest of a tenant is, in most instances, an invitee of the landlord while in common areas of the apartment complex because the landlord generally receives some benefit or has some interest in the guest’s presence on the property. However, in disapproving several prior Georgia premises cases, Cham clarifies that the liability of a landlord under the premises liability statute must be determined by the visitor's relationship with the landlord, rather than the relationship between the visitor and the tenant. Depending upon the unique factual circumstances presented, there remains a possibility that the guest of a tenant may actually be considered a licensee of the landlord, and a jury charge on the duty owed to a licensee would be proper. While uncertainty surrounding one’s status on a property may preclude summary judgment in some cases, the potential for jurors to be instructed on the lesser duty owed to a licensee (or even a trespasser) under a particular set of facts may lead to a more favorable outcome for defendants at trial.
Attorney Contact Info
Marvis Jenkins
marvis.jenkins@swiftcurrie.com
404.888.6174