FOURTH DIVISION DILLARD, P. J., RICKMAN and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
March 12, 2024
In the Court of Appeals of Georgia
A23A1387, A23A1388. MARQUITA JORDAN, AS PERSONAL REPRESENTATIVE OF SINCERE JORDAN, DECEASED v. H. J. RUSSELL & COMPANY et al; and vice versa.
RICKMAN, Judge.
Following the shooting of a minor, S. J., inside a leased apartment, the mother,
Marquita Jordan, sued H. J. Russell & Company, Etheridge Court Redevelopment
Partnership I, LP, Etheridge Court Redevelopment Partnership I, LP, and John Does
Nos. 1-5 (collectively, “the Defendants”), the owners and managers of the apartment
complex. The mother asserted a claim under Georgia’s premises liability statute. The
case proceeded to a jury trial and, following the grant of a directed verdict as to one
of the mother’s theories of liability, the jury returned a defense verdict. The trial court
subsequently entered a judgment in favor of the Defendants. Both sides appeal. The Defendants contend that the trial court erred by failing
to grant a directed verdict as to the mother’s entire case and the mother contends,
inter alia, that the trial court erred by granting the directed verdict. For the reasons
that follow, we agree with the Defendants that the trial court erred by failing to grant
a directed verdict as to the mother’s entire case and thus, in Case No. A23A1387, we
affirm and in Case No. A23A1388, we reverse.
In reviewing the grant or denial of a directed verdict, we recognize that
[a] directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.
(Citation and punctuation omitted.) Moran v. Kia Motors America, 276 Ga. App. 96,
96 (622 SE2d 439) (2005). See OCGA § 9-11-50 (a) (“If there is no conflict in the
evidence as to any material issue and the evidence introduced, with all reasonable
deductions therefrom, shall demand a particular verdict, such verdict shall be
directed.”).
2 So viewed, the record showed that Rolling Bends Apartments was a subsidized,
affordable housing complex in Atlanta. The apartments were owned and managed by
the Defendants. The mother lived at Rolling Bends with S. J. and her other children.
It is undisputed that one evening in the summer of 2017, S. J. went to another
apartment in Rolling Bends with some other children to play video games. While at
the apartment, another minor retrieved a handgun from his mother’s closet. The
details of the actual incident are not clear, but it is undisputed that the minor retrieved
the gun and it eventually fired, killing S. J.. The minor’s mother pled guilty to murder
in the second degree and cruelty to children in the second degree as a result of the
incident.
At trial, S. J.’s mother presented evidence from three other Rolling Bends’
residents that a few days prior to the incident, they each saw the minor who retrieved
the gun, with something resembling a gun in his hand at Rolling Bends: on a balcony;
on a sidewalk; and outside an apartment building. All three residents testified that they
told security guards about seeing the minor with what appeared to be a gun.
The mother filed suit against the Defendants alleging, inter alia, that
Defendants had a legal duty to keep the premises safe and to protect its tenants from
3 unlawful acts thereon and that the Defendants breach of these duties was a proximate
cause of S. J.’s fatal injures. The Defendants filed a motion for summary judgment
and, in their reply brief, argued that Georgia’s premises liability statute, OCGA § 51-3-
1,1 was inapplicable in this case, and the case was properly analyzed under Georgia’s
landlord-tenant statute, OCGA § 44-7-14.2 The trial court denied the Defendants’
motion for summary judgment.
The case proceeded to trial, and following a directed verdict in favor of the
Defendants as to the mother’s theory of liability alleging a violation of the landlord-
tenant statute, the jury returned a defense verdict.
The Defendants contend that the trial court erred by failing to grant a directed
verdict as to the mother’s entire case and the mother contends, inter alia, that the trial
court erred by granting the directed verdict.
1 “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.” OCGA § 51-3-1. 2 “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. 4 When considering whether liability applies under OCGA § 44-7-14 or OCGA
§ 51-3-1, our Supreme Court has explained,
in many instances, a landlord’s plot of land contains both areas that are possessed by the landlord (such as the common areas of an apartment complex) and areas possessed by tenants (i.e., the apartments themselves). In such cases, a landlord’s tort liability for a danger on its property is determined by the area where that danger lurks. If the dangerous condition that ultimately causes an injury is located in an area the landlord still possesses, then liability under OCGA § 51-3-1 et seq. applies, and OCGA § 44-7-14 does not apply by its own terms.
Cham v. ECI Mgmt. Corp., 311 Ga. 170, 176 (2) (a) (856 SE2d 267) (2021).
“Conversely, if the dangerous condition exists in an area possessed by the tenant
(such as in the tenant’s residence), then a landlord’s liability derives from OCGA §
44-7-14 and not from OCGA § 51-3-1.” Id.
Cham explains that in determining the source of a landlords liability, the main
question is “where the alleged cause of the injury lay.” See Cham, 311 Ga. 179, 2 (b)
Assuming that the minor was seen with a gun in common areas in the weeks before the
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FOURTH DIVISION DILLARD, P. J., RICKMAN and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
March 12, 2024
In the Court of Appeals of Georgia
A23A1387, A23A1388. MARQUITA JORDAN, AS PERSONAL REPRESENTATIVE OF SINCERE JORDAN, DECEASED v. H. J. RUSSELL & COMPANY et al; and vice versa.
RICKMAN, Judge.
Following the shooting of a minor, S. J., inside a leased apartment, the mother,
Marquita Jordan, sued H. J. Russell & Company, Etheridge Court Redevelopment
Partnership I, LP, Etheridge Court Redevelopment Partnership I, LP, and John Does
Nos. 1-5 (collectively, “the Defendants”), the owners and managers of the apartment
complex. The mother asserted a claim under Georgia’s premises liability statute. The
case proceeded to a jury trial and, following the grant of a directed verdict as to one
of the mother’s theories of liability, the jury returned a defense verdict. The trial court
subsequently entered a judgment in favor of the Defendants. Both sides appeal. The Defendants contend that the trial court erred by failing
to grant a directed verdict as to the mother’s entire case and the mother contends,
inter alia, that the trial court erred by granting the directed verdict. For the reasons
that follow, we agree with the Defendants that the trial court erred by failing to grant
a directed verdict as to the mother’s entire case and thus, in Case No. A23A1387, we
affirm and in Case No. A23A1388, we reverse.
In reviewing the grant or denial of a directed verdict, we recognize that
[a] directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.
(Citation and punctuation omitted.) Moran v. Kia Motors America, 276 Ga. App. 96,
96 (622 SE2d 439) (2005). See OCGA § 9-11-50 (a) (“If there is no conflict in the
evidence as to any material issue and the evidence introduced, with all reasonable
deductions therefrom, shall demand a particular verdict, such verdict shall be
directed.”).
2 So viewed, the record showed that Rolling Bends Apartments was a subsidized,
affordable housing complex in Atlanta. The apartments were owned and managed by
the Defendants. The mother lived at Rolling Bends with S. J. and her other children.
It is undisputed that one evening in the summer of 2017, S. J. went to another
apartment in Rolling Bends with some other children to play video games. While at
the apartment, another minor retrieved a handgun from his mother’s closet. The
details of the actual incident are not clear, but it is undisputed that the minor retrieved
the gun and it eventually fired, killing S. J.. The minor’s mother pled guilty to murder
in the second degree and cruelty to children in the second degree as a result of the
incident.
At trial, S. J.’s mother presented evidence from three other Rolling Bends’
residents that a few days prior to the incident, they each saw the minor who retrieved
the gun, with something resembling a gun in his hand at Rolling Bends: on a balcony;
on a sidewalk; and outside an apartment building. All three residents testified that they
told security guards about seeing the minor with what appeared to be a gun.
The mother filed suit against the Defendants alleging, inter alia, that
Defendants had a legal duty to keep the premises safe and to protect its tenants from
3 unlawful acts thereon and that the Defendants breach of these duties was a proximate
cause of S. J.’s fatal injures. The Defendants filed a motion for summary judgment
and, in their reply brief, argued that Georgia’s premises liability statute, OCGA § 51-3-
1,1 was inapplicable in this case, and the case was properly analyzed under Georgia’s
landlord-tenant statute, OCGA § 44-7-14.2 The trial court denied the Defendants’
motion for summary judgment.
The case proceeded to trial, and following a directed verdict in favor of the
Defendants as to the mother’s theory of liability alleging a violation of the landlord-
tenant statute, the jury returned a defense verdict.
The Defendants contend that the trial court erred by failing to grant a directed
verdict as to the mother’s entire case and the mother contends, inter alia, that the trial
court erred by granting the directed verdict.
1 “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.” OCGA § 51-3-1. 2 “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. 4 When considering whether liability applies under OCGA § 44-7-14 or OCGA
§ 51-3-1, our Supreme Court has explained,
in many instances, a landlord’s plot of land contains both areas that are possessed by the landlord (such as the common areas of an apartment complex) and areas possessed by tenants (i.e., the apartments themselves). In such cases, a landlord’s tort liability for a danger on its property is determined by the area where that danger lurks. If the dangerous condition that ultimately causes an injury is located in an area the landlord still possesses, then liability under OCGA § 51-3-1 et seq. applies, and OCGA § 44-7-14 does not apply by its own terms.
Cham v. ECI Mgmt. Corp., 311 Ga. 170, 176 (2) (a) (856 SE2d 267) (2021).
“Conversely, if the dangerous condition exists in an area possessed by the tenant
(such as in the tenant’s residence), then a landlord’s liability derives from OCGA §
44-7-14 and not from OCGA § 51-3-1.” Id.
Cham explains that in determining the source of a landlords liability, the main
question is “where the alleged cause of the injury lay.” See Cham, 311 Ga. 179, 2 (b)
Assuming that the minor was seen with a gun in common areas in the weeks before the
shooting incident, that does not change the analysis here. On the date of the tragic
incident, the minor retrieved a loaded gun inside his mother’s apartment, where S. J.
5 was fatally shot. Thus, the cause of the injury lay inside the apartment and the
Defendants’ potential liability therefore derives from OCGA § 44-7-14, not OCGA
§ 51-3-1. See Cham, 311 Ga. at 176 (2) (a)
The mother argues that Martin v. Six Flags Over Ga. II, 301 Ga. 323, 329 (801
SE2d 24) (2017), mandates that this case be decided under OCGA 51-3-1. We
disagree. Martin answered a narrow question, whether Six Flags can escape liability
for the foreseeable consequence of its failure to exercise ordinary care to keep its
premises safe after a continuous string of gang related activity simply because the
patron move off the premises to keep himself safe from his attackers. Martin does not
involve landlord-tenant law or require that a choice be made between applying OCGA
§ 51-3-1 or OCGA § 44-714.
The mother further argues that the defendants had not fully parted with
possession of the apartment where the shooting occurred because the model lease
provided that the mother of the minor with the gun agreed not use the unit for
unlawful purposes or engage in unlawful activities. The mother also points to language
in the model lease that the defendants “shall have the right to enter any apartment at
6 reasonable hours . . . as they shall deem necessary for safety . . . or for the safety or
convenience of the occupants.”
The mother’s argument, however is misplaced because “[t]hat the landlord
retains 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.” (Citations and punctuation omitted.) McCullough v. Reyes, 287
Ga. App. 483, 486–87 (1) (651 SE2d 810) (2007); see Starks v. USG Real Estate
Foundation III, 361 Ga. App. 406, 410 (864 SE2d 621) (2021). See Lake v. APH
Enterprises, LLC, 306 Ga App. 317, 319 (702 SE2d 654) (2010) (“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. . . . Landlords still fully part with possession
of leased premises when they retain limited entry or inspection rights for
landlord-related purposes. “) (citation and punctuation omitted.).
Accordingly, while we recognize that the circumstances here are tragic, under
the plain language of OCGA 44-7-14, the Defendants are not liable for the negligence
of the minor’s mother in leaving the loaded weapon around her unsupervised children
7 because the Defendants had fully parted with possession of the apartment. See Starks,
361 Ga. App. at 414 (1) (holding that USG Real Estate Foundation had leased the
entire property, including the Student Union, to the Board of Regents of the
University and, despite maintaining a right of entry, thus was not liable for the
shooting death of a student inside the Student Union); McCullough, 287 Ga. App. at
486 (1) (affirming the trial courts grant of summary judgment in favor of the
defendants under OCGA § 44-7-14 because the landlords were not in possession of
the property and thus not responsible for the negligence of their tenants in allowing
a loaded shotgun to be left accessible to teenage boys resulting in the death of one of
the boys).3
Judgment affirmed in Case No. A23A1387; Judgment reversed in Case No.
A23A1388. Dillard, P. J., and Pipkin, J., concur.
3 Because we find that the trial court should have directed a verdict in favor of the defendants on the entire case, we need not address the remainder of the mother’s arguments or the additional arguments asserted by the Defendants. 8