Tara Bridge Apartments, LP v. Benson

365 Ga.App. 647

879 S.E.2d 531

TARA BRIDGE APARTMENTS, LP et al.

v.BENSON.

A22A0744

Court of Appeals of Georgia.

October 7, 2022

Reconsideration Denied October 20, 2022

Barbara Anne Marschalk, Lisa Renee Richardson, Drew Eckl & Farnham, Matthew Farish Barr, Hawkins Parnell & Young, Atlanta, for Appellant.

Eugene Felton, Atlanta, Quinton Spencer Seay, Janet C. Scott, Seay Felton, Atlanta, for Appellee.

Markle, Judge.

After Millicent Benson was sexually assaulted when an intruder broke into her apartment, she sued Tara Bridge Apartments, LP; Tara Bridge GP, Inc.; Tara Bridge Atlanta Apartments, LLC; Ventron Management, LLC; and Camille Fisher, individually (collectively, "Appellants").¹ The trial court denied Appellants’ motion for summary judgment, and certified its order for immediate review. We granted the interlocutory application, and this appeal followed. On appeal, Appellants argue the trial court erred by denying their motion because Benson failed to (1) present evidence to create a jury question regarding the duty and causation elements of her negligence claim; (2) show that Appellants knew of a pattern of similar crimes that made the instant attack foreseeable; (3) establish that a breach of contract claim existed due to repair issues related to the entrance gate to the complex and window locks; and (4) show that punitive damages were appropriate. After a thorough review of the record, we agree with Appellants and, therefore, reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Cleveland v. Team RTR2 , 359 Ga. App. 104, 854 S.E.2d 756 (2021).

So viewed, the record shows that Benson lived at the Tara Bridge Apartments in Jonesboro, Georgia. In the early morning hours of June 8, 2019, an intruder broke into Benson's apartment and sexually assaulted her. Following the attack, the police discovered an open window near the front door of Benson's apartment. Benson stated that before going to bed that night, she double-checked to ensure the front door was locked and that her window was closed.

Benson told the police she believed the window was the assailant's point of entry.

Following the attack, Benson sued Appellants, asserting claims of premises liability; vicarious liability; breach of contract; breach of implied warranty of habitability; punitive damages; and attorney fees and expenses. To support her negligence claim, Benson pointed to her own deposition testimony, work requests made to Appellants, as well as testimony from a security expert. In her deposition, Benson testified that the only complaints she made to Appellants were related to the window lock, the front gate, a building light that was out before she moved in, and a light that was out in the parking lot. With regard to the window lock, Benson explained that she made maintenance requests in 2016 when she first moved, but, after receiving confirmation from Appellants that the window was repaired, she never checked it to ensure that it, in fact, was working properly. Although Benson believed the assailant entered her apartment through the unsecured window, she admitted the possibility that he likewise could have entered through her front door while she was out walking her dog earlier that evening.

Benson also relied upon a number of work requests submitted to Appellants related to improperly functioning windows. Appellants’ employees admitted in their depositions that some windows in the complex, including Benson's, could at times appear to be locked, but were not. Benson's expert, Michael Hodge, testified in a deposition that this could occur when the windows were not completely pushed down.

It further appeared that there was a single point of entry by vehicle to and from the complex through the security gate at the front of the apartments, and that this entrance was often inoperable, both prior to and after the attack. Benson's expert opined that, given the condition of the front gate, Appellants should have employed uniformed security to patrol the premises. Nevertheless, there is no evidence as to how the assailant actually entered the apartment complex.

Benson submitted police reports showing there were at least 29 prior break-ins at the apartment complex over the 5-year period prior to Benson's attack. These included a physical assault in 2017; a rape in 2013; and at least nine incidents of breaking or damaging an apartment window to gain entry.²

Appellants moved for summary judgment, and submitted testimony from their own expert, Elizabeth Dumbaugh. Dumbaugh opined that the security gate was a potential threat, but that this was common for any residential facility. She also opined that, prior to and at the time of Benson's attack, there was no recent or frequent history of violent attacks at the complex indicative of the type of assault on Benson, and that Appellants had provided reasonable security measures via resident patrol officers on site, adequate lighting, and surveillance cameras. Appellants also submitted the property manager's deposition, in which she stated that she was unaware of any prior criminal activity on the premises that would have alerted her to a possible sexual assault. Appellants further asserted that any prior maintenance reported and work performed on the window in Benson's apartment was completed prior to the attack, and that, at the time of the incident, the window was in working order.

After a hearing, the trial court denied Appellants’ motion. We granted the application for interlocutory review, and this appeal followed.

In related enumerations of error, Appellants argue that they were entitled to summary judgment because Benson failed to (a) establish the duty and causation elements of her negligence claim as there was no evidence that the window in question was malfunctioning; and (b) show that Appellants knew of a pattern of similar crimes such that the instant attack was foreseeable. Appellants also asserted (c) the trial court should have granted summary judgment as to Benson's breach of contract and punitive damages claims. We agree that Appellants were entitled to summary judgment.

Under Georgia law, to state a claim for negligence, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk 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.

(Citation and punctuation omitted.) Shadow v. Federal Express Corp. , 359 Ga. App. 772, 775 (4), 860 S.E.2d 87 (2021).

It is well settled in Georgia that a proprietor owes its invitees a duty "to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. A landowner, however, "is not an insurer of an invitee's safety. An intervening criminal act by a third party generally insulates a landowner from liability unless such criminal act was reasonably foreseeable." (Citation and punctuation omitted.) Rautenberg v. Pope , 351 Ga. App. 503, 505 (1), 831 S.E.2d 209 (2019).

Put another way, if the owner has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters. But, an owner is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable. Indeed, without foreseeability that a criminal act by a third party will occur, the proprietor has no duty to exercise ordinary care to prevent the act.

(Citation and punctuation omitted.) Retail Property Trust v. McPhaul , 359 Ga. App. 345, 347-348 (1), 857 S.E.2d 521 (2021) ; see also Med. Center Hosp. Auth. v. Cavender , 331 Ga. App. 469, 473-474 (1), 771 S.E.2d 153 (2015). Accordingly, a premises liability claim based on attacks by a third party requires both foreseeability of an attack and a showing that the landlord's conduct is the contributing cause of the attack. With these principles in mind, ...