Sadlowski v. Beacon Mgmt. Servs., Inc.

348 Ga.App. 585

824 S.E.2d 42

SADLOWSKI

v.BEACON MANAGEMENT SERVICES, INC.

A18A1841

Court of Appeals of Georgia.

February 11, 2019

Bruce Robert Millar, Jonesboro, James Brian Sullivan, Atlanta, for Appellant.

Gene A. Major, Atlanta, for Appellee.

Dillard, Chief Judge.

Eric Sadlowski appeals from the trial court's grant of summary judgment to Beacon Management Services, Inc., on his action to recover damages for personal injuries that he sustained in an attack by an unknown assailant near his condominium complex, which Beacon managed. Sadlowski contends, inter alia , that the court erred by granting summary judgment when there was a genuine issue of material fact as to whether Beacon had a duty to provide security.¹ For the reasons set forth infra , we affirm.

Viewed in the light most favorable to Sadlowski (i.e. , the nonmoving party),² the record shows that at the time relevant to this appeal, he was a new resident in a downtown Atlanta condominium complex, having moved there in February 2014. The declarations for the condominium explained that the complex did not provide, and was not responsible for providing, security to residents. Instead, each resident had responsibility for his or her own safety. Nevertheless, Sadlowski averred that, as part of his decision to purchase his unit, he considered what he deemed security measures surrounding the condominium complex property, including controlled-access vehicle and pedestrian gates.

Sadlowski moved forward with his purchase, but when he closed on his condominium, he did not receive an access-gate key fob from the seller. Instead, he was advised by the seller's real estate agent that the property management company for the complex would provide it to him. Accordingly, both before and during the closing on his unit, Sadlowski's real estate agent contacted Beacon about acquiring an access fob. And Sadlowski was told that he would be provided with a fob no later than a few days after closing. But Sadlowski did not receive a key fob until March 4, 2014, approximately two-and-a-half weeks after closing on his unit. At that time, a fob was given to him by the HOA board president.

Immediately after receiving his key fob, Sadlowski attempted to use it to open the vehicle-access gate. But no matter how close he got to the gate, the fob would not open the gate, and Sadlowski then called and left text messages with the HOA president to inform him of the problem. The president did not respond to these inquiries.

Thereafter, Sadlowski reached out to Beacon, the management company, contacting the owner/CEO, president, and accountant by phone and text message on multiple occasions. In his communications with Beacon's CEO, Sadlowski was told that his fob "should be working," even though it had yet to work.

In the midst of attempting to obtain a working key fob, approximately one month after moving into his unit, Sadlowski was violently attacked on the sidewalk just outside of the condominium complex. And at the time of the attack, Sadlowski's name and number still were not entered into the controlled-access gate system, making it impossible for him to call himself through the pedestrian-gate access box to open the gate via his cell phone, and his vehicle-access-gate key fob still did not work either.³ Thus, without a way to access the complex through a controlled-access-gate mechanism, Sadlowski was limited to waiting for another resident to drive through the parking gate so that he could follow behind.

The attack on Sadlowski occurred after he and his then-girlfriend arrived home a little after 2:00 a.m. on March 9, 2014, following dinner and drinks with friends. That night, Sadlowski once again attempted to enter the complex through the vehicle-access gate, but his key fob still was not working. As a result, Sadlowski and his girlfriend waited 15 to 20 minutes for another vehicle to enter the gate before growing tired and deciding to park on the street.⁴

Sadlowski exited his Mercedes convertible to assist his girlfriend, who was driving, in parallel parking on the street beside the vehicle-access gate. As he was doing so, while standing on the sidewalk alongside the condominium complex, he was approached from behind by an unknown knife-wielding assailant, who pressed the weapon against Sadlowski's throat and demanded his wallet. Believing the man ultimately intended to rob him and to hijack his Mercedes, which still contained his girlfriend, Sadlowski managed to break free of the perpetrator's headlock, and the two fought. During the struggle that ensued, Sadlowski was stabbed three times—on the arm, in the ribs, and in the back—before the assailant fled and took off in a vehicle parked down the street. Sadlowski's girlfriend called law enforcement for help, and he was then transported to the hospital via ambulance to receive medical attention, including surgery. As a result, he incurred medical costs exceeding $ 40,000.

Sadlowski filed suit against Beacon in 2015, seeking to recover damages related to allegations of negligence in its provision of security to the complex. But Beacon filed a motion for summary judgment in 2017, denying that it was responsible for providing security. In response, Sadlowski argued that the condominium declarations' disclaimer regarding security measures applied only to the complex HOA, not Beacon, and that Beacon's assumption of security responsibilities modified the declarations anyway. Following a hearing, the trial court granted Beacon's motion for summary judgment. This appeal follows.

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."⁵ And we review a grant or denial of summary judgment de novo , viewing all evidence in the light most favorable to the non-moving party.⁶ Furthermore, the party opposing summary judgment is "not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact."⁷ With these guiding principles in mind, we turn now to Sadlowski's arguments on appeal.

1. Sadlowski argues that the grant of summary judgment was erroneous when there are genuine issues of material fact as to whether Beacon had a duty to provide security to the condominium complex. Additionally, in a separate enumeration of error, Sadlowski challenges the trial court's conclusion that Beacon was not providing "security" to the complex and had no duty to provide security on a public sidewalk (i.e. , the court's conclusion that Sadlowski was not within the approaches of the condominium). We disagree with Sadlowski that Beacon was providing security to the residents of the condominium complex or had a duty to provide security to the residents.

In bringing his complaint, Sadlowski sought to recover damages under theories of negligence and gross negligence as to Beacon's failure to provide him with a working key fob for the vehicular-access gate to the condominium complex. And it is well established that, in order to state a cause of action for negligence in Georgia, the following elements must be shown:

(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.⁸

In granting summary judgment to Beacon, the trial court concluded that (1) Beacon owed no duty to provide security on a public sidewalk, (2) Sadlowski had equal or superior knowledge that his access fob was inoperable at the time of the incident, and (3) Sadlowski assumed the risk of injury when he decided to physically engage with his attacker. As to the HOA, which again is not a party to this appeal, the trial court granted summary judgment for these same reasons but also for the additional reason that the condominium declarations included a valid and binding exculpatory clause as to the provision of security, relieving the HOA of the duty to provide same.

In Sadlowski's enumerated errors on appeal, he asserts, inter alia , that the "trial court erroneously held as a matter of law that Beacon owed no duty to provide security to Eric Sadlowski."⁹ But in the argument section of his brief, he abandons this assertion by failing to support it with argument, citation to authority, or citation to the record.¹⁰ Indeed, Sadlowski fails to cite any authority to support the assertion that Beacon had such a duty. And duty, of course, is a threshold element of any negligence claim.¹¹

Sadlowski also challenges the trial court's conclusion that Beacon was not providing "security" to the complex and that it had no duty to provide security on a public sidewalk. But setting aside the issue of whether or not the sidewalk was within the condominium's approaches, Sadlowski still was required to demonstrate that Beacon had a duty to provide security to the residents.¹² Thus, even if Sadlowski had supported his argument that Beacon owed a duty to provide any security with citation to authority and cogent argument, the "Declaration of Condominium" for the complex explicitly placed the responsibility for each resident's security solely with the resident.¹³

To begin with, the Declaration of Condominium was submitted to the governing provisions of the Georgia Condominium Act,¹⁴ which provides that "[e]ach unit owner shall automatically be a member of the [homeowners] association [,]"¹⁵ and unit owners agree to be bound by the provisions of their condominium instruments.¹⁶ Additionally, under the Act, any purchaser of a unit at Sadlowski's condominium complex "has an absolute right to void a sales contract within a period of seven days after receiving the condominium instruments containing the terms under which the purchaser agrees to be bound...