Starks v. USG Real Estate Foundation III, LLC

361 Ga.App. 406

864 S.E.2d 621

STARKS et al.

v.USG REAL ESTATE FOUNDATION III, LLC.

A21A0950

Court of Appeals of Georgia.

October 13, 2021

Sidney Leighton Moore III, Samuel Lydell Starks, Shean DeCarlos Williams, Atlanta, for Appellant.

Brian C. Smith, Gainesville, for Appellee.

Miller, Presiding Judge.

In this tragic case involving the shooting death of their son at Savannah State University, Sharron and Willie Starks ("the Plaintiffs") appeal from the trial court's order granting summary judgment to USG Real Estate Foundation III, LLC ("USG") on their negligence and nuisance claims. On appeal, the Plaintiffs argue that the trial court erred by granting summary judgment because genuine issues of fact remain on their claims. After a careful review of the record, we conclude that no genuine issues of material fact remain on the Plaintiffs’ claims, and we are therefore compelled to affirm the trial court's order granting summary judgment to USG.

Summary judgment is appropriate if the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.

(Citation omitted.) Moore v. Lovein Funeral Home, Inc. , 358 Ga. App. 10, 852 S.E.2d 876 (2020).

So viewed, the record shows that USG was created on January 14, 2010, as a non-profit limited liability company to facilitate financial transactions for multiplemember institutions of the Board of Regents of the University System of Georgia ("Board of Regents"), including Savannah State University, to avoid the state of Georgia from incurring debt. Under the financing structure, the Georgia Higher Education Facilities Authority ("GHEFA") loaned bond proceeds to USG for multiple projects on a number of campuses.

One such project was the construction of the Student Union building at Savannah State University, which was built on a parcel of land owned by the Board of Regents. On August 12, 2010, USG and the Board of Regents entered into a ground lease agreement whereby the Board of Regents agreed to lease 0.743 acres of land it owned at Savannah State University to USG for 30 years for USG to "construct[ ], own[ ], operat[e] and maintain[ ]" the Student Union. The terms of the ground lease required USG to continuously occupy the land throughout the term of the lease, but USG was permitted to sublet, transfer, or assign the lease with the Board of Regents’ consent. USG was also required to indemnify the Board of Regents, Savannah State, and the State of Georgia and its departments from all claims and costs from "bodily injury (including death), personal injury, property damage," and other expenses arising from performance on the ground lease agreement. The agreement further required USG to, "at its sole cost and expense, keep the [p]remises and the [i]mprovements in good order, condition and repair[.]" USG's obligations also included, "without limitation, all necessary repairs and replacements of the [p]remises, structural or otherwise[.]"

USG and the Board of Regents also simultaneously executed a rental agreement that was to take effect on August 1, 2011. Pursuant to the rental agreement, USG leased the entire property, which consisted of the Student Union and all of the land that was leased to it in the ground lease, back to the Board of Regents for one year, with the option of renewing the agreement on a yearly basis for 29 years. The agreement required USG to deliver the entire property, including the Student Union, to the Board of Regents at the commencement of the term, and it prohibited the Board of Regents from vacating the premises for the duration of the lease. The agreement also provided that the Board of Regents would peacefully "have, hold, use, possess, enjoy, and occupy" the entire property. USG was required to service the property at its expense, and it retained a right to enter and inspect the premises for maintenance and repair purposes. The rental agreement also contained the following provision:

COMPLIANCE WITH LAWS, ORDINANCES, AND REGULATIONS

(a) Landlord shall be responsible for compliance with all applicable laws, ordinances, and regulations, including permitting and zoning ordinances and requirements and local and state building codes, life safety codes, security, and the holding of a current and proper certificate of occupancy.

The agreement further required USG to procure an insurance policy for the premises, which designated the Board of Regents as the certificate holder of the insurance policy, and it made the Board of Regents responsible for paying the insurance policy. Savannah State University makes payments to USG under the rental agreement, and USG uses the proceeds from the rental payments to repay the loan which financed the Student Union.

USG delivered possession of the Student Union to the Board of Regents at the commencement of the term in the rental agreement. Savannah State University took possession of the Student Union and operates it exclusively for the benefit of its students. USG does not have the authority to control access to the Student Union or any other portion of the property at the university. Savannah State University is responsible for providing security at the Student Union, which it provides through the Savannah State University Police Department.

The Plaintiffs’ son, Christopher Starks, was a student at Savannah State University. While inside the Student Union on August 27, 2015, he was shot and killed by an unknown assailant. Following their son's death, the Plaintiffs filed the instant suit against USG, asserting claims for negligence and nuisance.¹ After answering the complaint, USG filed a motion for summary judgment and argued that it could not be liable on the Plaintiffs’ claims because it is an out-of-possession landlord and that it was not obligated to provide security for the Student Union. The Plaintiffs contended that USG was not an out-of-possession landlord because it did not fully part with the premises. The trial court granted USG's motion for summary judgment after a hearing, and this appeal followed.

1. First, the Plaintiffs argue that the trial court erred by granting summary judgment to USG on their negligence claim because USG did not fully part with the Student Union, and therefore it is not an out-of-possession landlord. We conclude that the trial court properly granted summary judgment to USG on the Plaintiffs’ negligence claim because USG is an out-of-possession landlord.

"Generally, a landowner has a duty to keep its premises safe for visitors, and this duty depends, to a certain extent, on whether the one entering the property is an invitee, a licensee or a trespasser." (Citation and punctuation omitted.) Cham v. ECI Mgmt. Corp. , 311 Ga. 170, 173 (2) (a), 856 S.E.2d 267 (2021). This duty is partially codified in OCGA § 51-3-1, which provides: "Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." "Liability under OCGA § 51-3-1 may arise when an [owner] [or] occupier of land has personal charge of or exercises the right of management or control over the property in question." Westmoreland v. Williams , 292 Ga. App. 359, 361 (1),665 S.E.2d 30 (2008).

As the Supreme Court of Georgia has acknowledged, the aforementioned principle becomes more "complicated" when the property owner is also a landlord who leases the property to tenants. Cham , supra, 311 Ga. at 174 (2) (a), 856 S.E.2d 267. "[W]hen the [landowner/landlord] cedes possession of the property to a tenant, the landowner's control over the property and the concomitant ability to make the property safe becomes limited." Id. In such instances, "[a] landlord's liability to a third person who is injured on property which was relinquished by rental or under a lease is determined by OCGA § 44-7-14." Colquitt v. Rowland , 265 Ga. 905, 906 (1), 463 S.E.2d 491 (1995). That statute provides:

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

OCGA § 44-7-14. The rationale is that

the use of the tenements really belongs to the tenant during the lease; they are his property to use for the term for which they are rented; and the landlord has no right to enter upon them, except by permission of the tenant, during the term for which they are rented. To rule otherwise, i.e., to impose liability on a landlord for the negligent acts of his tenant, would yield a harsh and unwanted rule.

(Citation and punctuation omitted.) Colquitt , supra, 265 Ga. at 906 (1), 463 S.E.2d 491. Accordingly, this Court has held that "a landlord's right to inspect is not the equivalent of the right to possess premises, so as to make the landlord liable under OCGA § 44-7-14." (Citation and punctuation omitted.) Lake v. APH Enterprises, LLC , 306 Ga. App. 317, 319, 702 S.E.2d 654 (2010). Indeed, "landlords still fully part with possession of leased premises when they retain limited entry or inspection rights for landlord-related purposes." Id. This is so, because a landlord's retention of the right to enter the leased premises "for landlord-related purposes does not evidence such dominion and control of the premises so as to vitiate the landlord's limited liability imposed by OCGA § 44-7-14 and replace it with the liability imposed by OCGA § 51-3-1, the premises liability statute upon...