Morris v. Real Estate Expert Advisors, LLC

365 Ga.App. 734

880 S.E.2d 218

MORRIS

v.Real Estate Expert Advisors, LLC et al.; and vice versa.

Real Estate Expert Advisors, LCC et al.

v.Morris.

A22A1116, A22A1117

Court of Appeals of Georgia.

October 25, 2022

J. Darren Summerville, Meredith Charlotte Kincaid, Meghan Renee Hatfield Yanacek, The Summerville Firm; Michael Thomas Rafi, Rafi Law Firm, for Morris.

Matthew D. Friedlander, Laurie Webb Daniel, Holland & Knight; Jeffrey Matthew Barnes, Barnes Firm; Adam Charles Joffe, Paul J. Spann, Goodman McGuffey, for Real Estate Expert Advisors, LLC et al.

Doyle, Presiding Judge.

These cases arise from an action filed by professional photographer Whitney Morris against Real Estate Expert Advisors, LLC ("REEA"), real estate broker Tracy Cousineau, and homeowner Belinda Brooks, seeking damages for injuries Morris sustained when he was shot by Brooks as he attempted to photograph the interior of her house. The trial court granted summary judgment to REEA and Cousineau, and Morris appeals in Case No. A22A1116, arguing that the defendants owed a duty to Morris and that the trial court erred by concluding that there is no genuine issue of fact supporting vicarious liability on the part of REEA and Cousineau for the conduct of Sherri Wilson, a real estate agent working for REEA. In Case No. A22A1117, Cousineau and REEA filed a conditional cross-appeal, arguing that the trial court erred to the extent that it held that they owed a duty to Morris to prevent the shooting by third-party Brooks and that their conduct was the proximate cause of Morris's injuries. For the reasons that follow, we affirm the grant of summary judgment to Cousineau in her personal capacity, we vacate the grant of summary judgment to REEA on the ground of lack of vicarious liability, and we remand for further proceedings.

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. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.¹

The relevant factual background was summarized in the initial appearance of this case in our Court in Morris v. Real Estate Expert Advisors² (" Morris I "), following an earlier grant of summary judgment to REEA and Cousineau:

Viewed in the light most favorable to Morris (i.e., the nonmoving party), the record shows that Brooks hired REEA to sell her Winston, Georgia home. Cousineau, a real estate agent [and broker], is the owner and manager of REEA. REEA told Brooks that when it was time for her home to be photographed, she would be contacted to set up an appointment; but that did not happen.

REEA hired Advantage Home Tours to photograph Brooks's home for her real-estate listing and submitted a work order to the Advantage Homes website. Thereafter, an Advantage Homes employee corresponded with a REEA employee [listing coordinator Sarah Grillo] to schedule a photography appointment. Advantage Homes confirmed that Brooks's home would be photographed at 9:00 a.m. on February 2, 2018. In turn, Advantage Homes scheduled Morris, a freelance real-estate photographer, for the job.

According to Morris, when he photographs a home, the way he enters the house depends "first and foremost" on the instructions in his work order. These work orders ask real-estate agents to submit all pertinent information to Advantage Homes Tours, and the company then passes that information along to the photographer. And according to Morris, if the instructions say to call the homeowner, knock on the door, or ring the doorbell, he follows those instructions. So, generally, the work order tells Morris everything that he needs to know for a photo shoot.

Here, REEA placed an electronic lockbox on the door to Brooks's home, and the box contained a key to the house. This type of lockbox is accessible via an electronic key or cell-phone application, which allows the real-estate agent to remotely control who accesses the home and when. The work order for Brooks's home included the code to her lockbox, but did not include any instructions to call the homeowner or agent before entering or any instructions related to a security alarm.

Morris arrived at Brooks's home just before 9:00 a.m. and took photographs of the house's exterior. He looked through the windows of the home and believed it appeared staged but unoccupied by an inhabitant. Then, shortly before 9:00 a.m., Morris used the application on his phone to open the lockbox. And at 9:00 a.m. sharp, he retrieved the key and opened the front door. But as the door swung open, a security alarm began to sound loudly. Surprised, Morris immediately looked back in the lockbox for a piece of paper with the security code. He found nothing inside. Morris then entered the home to look for the keypad and any paper containing the security code, but shortly thereafter he was shot from behind by Brooks.

[Based on an explicit reassurance made by her real estate agent, Wilson,] Brooks expected that [Wilson] would notify her before a photographer came to her home, but that never happened. So, when Morris entered the home, Brooks believed that he was an intruder, retrieved her firearm, and fired in his direction. She missed Morris the first time; but shot again, striking him in the buttocks and causing serious injuries.

Morris later filed suit against Brooks, REEA, and Cousineau, alleging that Cousineau and REEA "had a duty to act as a reasonable person would under the circumstances" and "take reasonable and ordinary steps to ensure Morris would be safe at Brooks's home." The complaint further alleged that REEA and Cousineau breached their duty of care by failing to inform Brooks that Morris would enter her home at approximately 9:00 a.m. on the date in question.³

Various procedural disputes ensued, but eventually REEA and Cousineau filed their first motion for summary judgment, arguing that: Cousineau herself was not involved in the real estate listing for Brooks's house, so she could not be held liable; and REEA and Cousineau owed no duty to Morris nor did they proximately cause the shooting.⁴ The trial court granted summary judgment to REEA and Cousineau based on their discovery admissions that they owed no duty to Morris, and they did not cause the shooting. This Court reversed because the defendants’ admissions are not binding on a nonmoving plaintiff on summary judgment.⁵

On remittitur, additional discovery ensued, and Cousineau and REEA again moved for summary judgment, arguing that they owed no duty to Morris and did not proximately cause the shooting. Following a hearing, the trial court granted summary judgment to REEA and Cousineau, explaining as follows:

Wilson is the only person who undertook to render the service of notifying ... Brooks prior to a photographer visit.... Defendants R[E]EA and Tracy Cousineau pointed to an absence of evidence on file to support a finding that Ms. Wilson was their employee [such that they would be vicariously liable for Wilson's conduct]; and Plaintiff did not point to evidence to create an issue of fact concerning whether Ms. Wilson was an independent contractor. Accordingly, Defendants have shown that no genuine issue of fact exists for the t[r]ier of fact on [Morris's] vicarious liability claims against R[E]EA or Tracy Cousineau.

Morris now appeals the ruling as to the lack of vicarious liability on the part of REEA and Cousineau, who conditionally cross-appeal, arguing a lack of duty and proximate causation.

1. Vicarious liability ruling. Morris contends that the trial court erred by granting summary judgment to Cousineau and REEA on the ground that Morris failed to point to evidence creating a factual question as to vicarious liability on the part of Cousineau and REEA for the conduct of Wilson. Based on the procedural posture in the trial court, we agree in part.

(a) Cousineau's personal liability. As a starting point, we note that the complaint, as amended, alleges three counts of negligence: one count against Cousineau, one count against REEA, and one count against Brooks (who was not a party to the summary judgment order or this appeal). With respect to Cousineau individually, the complaint alleges that she failed to notify Brooks when the photographer would be coming, that she failed to notify Morris that he needed to call Brooks before arriving, that she negligently hired/trained/supervised the REEA staff, and that she failed to create or enforce policies that would prevent unannounced appointments. But as noted by the trial court, it is undisputed that Cousineau did not personally participate in the listing and communication process for Brooks's home, so the record fails to create a factual issue as to her personal liability in handling the communications with Brooks. With respect to any other theory of Cousineau's individual liability as a result of her status as the brokerage's member and manager, there is neither evidence nor argument that the corporate form should be disregarded. Further, corporate officers are not personally liable for acts they themselves did not participate in,⁶ nor for inadequate training or policies created on behalf of the corporation.⁷ Thus, pretermitting any argument regarding respondeat superior, which Morris contends was an improper ground relied upon by the trial court, the record supports the trial court's grant of summary judgment to Cousineau in her individual capacity.

(b) REEA's vicarious liability. With respect to REEA, the complaint similarly alleges that REEA was responsible for notifying Brooks about the timing of the photography appointment or telling Morris to contact Brooks or otherwise ensure that he had permission to enter the home at the appointed time. It further alleges that REEA negligently trained or hired employees, and it...