SECOND DIVISION MILLER, P. J., HODGES and PIPKIN, JJ.
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October 13, 2021
In the Court of Appeals of Georgia A21A0950. STARKS et al. v. USG REAL ESTATE FOUNDATION III, LLC.
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 SE2d
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 multiple-
member 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
2 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
3 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
4 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 The Plaintiffs amended their complaint in an attempt to add the University System of Georgia Foundation, Inc., and USGREF Manager, LLC as defendants in the action, but the Plaintiffs did not seek leave of court beforehand. Therefore, the trial court determined that these defendants were not properly before the court, and the Plaintiffs do not challenge that ruling in this appeal.
5 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 SE2d 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 SE2d 30)
(2008).
6 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). “[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 SE2d 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.,
7 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). 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 SE2d 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 which [the Plaintiffs’] action is based.”
Webb v. Danforth, 234 Ga. App. 211 (505 SE2d 860) (1998).
The facts of this case are analogous to those in Lake. There, an unknown
assailant shot the victim in the parking lot of a restaurant. Lake, supra, 306 Ga. App.
at 317. The restaurant was owned by APH, but it was leased and operated by Curtis
Marshall. Id at 317-318. Under the terms of the lease agreement, Marshall was
8 responsible for providing security and daily maintenance for the premises including
the parking lot, while APH was responsible for handling “major” repairs such as a
broken air conditioning unit or a leaky roof. Id. at 318. APH’s owner also paid the
property taxes, deducted repair expenses, maintained insurance for the building, and
periodically visited the property to “see[] how things were going.” Id.
In a suit by the victim against APH, this Court affirmed the trial court’s grant
of summary judgment to APH after concluding that there were no genuine issues of
material fact as to whether APH was an out-of-possession landlord. Lake, supra, 306
Ga. App. at 319. We reasoned that, although APH retained a limited right of reentry
or inspection rights, those rights did not evince the necessary dominion and control
of the premises to impose liability under OCGA § 51-3-1. Id. at 319-320. We further
reasoned that the area where the shooting occurred was under Marshall’s exclusive
control and that there was no evidence that APH contracted to remain in possession
of the area where the shooting occurred. Id. at 320. Thus, we concluded that APH was
not liable on the Plaintiff’s negligence claim. Id.
Similarly, in Webb, the owner of a house rented the property to a tenant. Webb,
supra, 234 Ga. App. at 211. The agreement between the parties required the owner
to maintain the structure while the tenant maintained the yard. Id. The tenant took
9 possession of the property, but the owner periodically visited the property. Id. At
some point, the tenant brought a dog onto the property and invited a minor child onto
the property to play in the yard, after which the dog broke free from its chain and
attacked the child. Id.
On appeal, we affirmed the trial court’s grant of summary judgment to the
owner. Webb, supra, 234 Ga. App. at 211. In reliance on OCGA § 44-7-14, we
reasoned that the owner, who had relinquished possession of the property to the
tenant, could not be liable to a third party for damages resulting from the tenant’s
negligence. Id. We further reasoned that the owner’s retention of the right to enter,
inspect, and repair the property was “not inconsistent with a full surrender of
possession to the tenant.” Id.
Here, the record shows that USG leased the entire property, including the
Student Union, to the Board of Regents. The rental agreement gave possession of the
property, including the Student Union, to the Board of Regents, and it required USG
to deliver the entire property to the Board of Regents at the commencement of the
term which began on August 1, 2011. The agreement also provided that the Board of
Regents was to peacefully “have, hold, use, possess, enjoy, and occupy” the entire
property for the duration of the lease. Although USG retained a right of entry onto the
10 property to conduct inspections and was required to conduct necessary repairs, the
record shows that Savannah State University took possession of the Student Union,
it operates the Student Union exclusively, and USG has no authority or control over
access to the Student Union.
Applying Lake and Webb to the instant case, we conclude that the trial court
correctly determined that USG fully parted with possession of the Student Union and
therefore USG is an out-of-possession landlord under OCGA § 44-7-14. Although
USG was obligated to service and maintain the property and retained a right to enter
the property for such purposes, these obligations and rights do not evince the requisite
dominion and control of the premises to impose liability under OCGA § 51-3-1, nor
are they inconsistent with a full surrender of possession of the property. Thus, the trial
court correctly determined that USG is an out-of-possession landlord, and,
consequently, it cannot be held liable on the Plaintiffs’ negligence claim.
The Plaintiffs assert a variety of arguments they contend require a reversal of
the trial court’s summary judgment order. First, the Plaintiffs rely upon our decisions
in Stelly v. WSE Property Mgmt., LLC, 350 Ga. App. 627 (829 SE2d 871) (2019) and
Ladson Investments v. Bagent, 151 Ga. App. 24 (258 SE2d 718) (1979) to support
their claim that USG is liable under OCGA § 51-3-1. These decisions, however, are
11 factually distinguishable from the instant case. In Stelly, we reversed the trial court’s
order granting summary judgment to a property management company in a suit by the
victim who was injured at an apartment complex because the company partially
possessed the property in that it was required to operate an onsite office every day at
the apartment complex. Id. 627-632 (1). In Ladson Investments, a tenant’s employee
sued the landlord under OCGA § 44-7-14’s predecessor statute for injuries sustained
when a freight elevator in which she was riding fell to the bottom of the elevator
shaft. Ladson Investments, supra, 151 Ga. App. at 24. We held that the evidence did
not demand a finding that the landlord fully parted with possession of the premises
because the landlord retained the right to inspect the premises, and a provision in the
lease required the landlord to replace electrical equipment it had installed, including
a switch that might have caused the elevator to malfunction and injure the plaintiff.
Id. at 26 (2). In the instant case, however, there was no evidence presented to show
that USG partially possessed the Student Union or that some equipment it was
contractually responsible for caused the injury. Thus, our decisions in Stelly and
Ladson Investments are factually distinguishable and do not compel a reversal of the
trial court’s order.
12 Next, the Plaintiffs argue that genuine issues of material fact remain as to
whether USG is an out-of-possession landlord because the ground lease agreement
required USG to “occupy” the property for the duration of the lease. We disagree. It
is true that the ground lease agreement, which was executed to allow USG to
construct and own the Student Union, provided that USG was to “occupy the
[p]remises continuously throughout the [t]erm of this lease and shall not desert,
surrender, abandon or cease using the [p]remises during the term of this [l]ease.” As
previously stated, however, the ground lease permitted USG to transfer or assign the
entire lease with the Board of Regents’ consent, and the record shows that USG and
the Board of Regents executed the rental agreement which required USG to surrender
its possession of the land and the Student Union to the Board of Regents. There is
nothing in the rental agreement to show that USG contracted to remain in possession
of any portion of the property or the Student Union after its surrender of the property
to the Board of Regents. Consequently, the Plaintiffs’ argument that the ground lease
agreement presents a genuine issue of material fact as to whether USG is an out-of-
possession landlord fails.
The Plaintiffs further argue that USG is not an out-of-possession landlord
because the rental agreement allegedly required USG to provide security for the
13 Student Union, but we reject this interpretation of the contract. The provision at issue
states the following: “[l]andlord 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.” In
examining this particular provision, we first note that it is titled, “Compliance with
Laws, Ordinances, and Regulations.” See Giles v. Nationwide Mut. Fire Ins. Co., 199
Ga. App. 483, 484 (1) (405 SE2d 112) (1991) (holding that clause language must be
read together with clause heading when construing contract.) (citation omitted). The
provision then goes on to state that USG, as landlord, is responsible for complying
with all applicable laws and ordinances regarding security. Read in context, we do not
interpret this provision as itself requiring USG to provide security for the Student
Union to impose liability under OCGA § 51-3-1. Instead, this provision merely states
that USG is required to comply with any specific laws or ordinances in regard to
security. Notably, the Plaintiffs fail to identify any particular law, ordinance, or
regulation that required USG to provide security for the property, and, according to
the record, the city and the county where the Student Union is located have not yet
enacted legislation requiring USG to implement security measures or to take any
14 action to comply with this provision of the agreement regarding security.
Accordingly, this provision of the rental agreement also does not provide a basis for
a reversal of the trial court’s summary judgment order.
Lastly, the Plaintiffs contend that parol evidence demonstrates that USG did
not fully part with possession of the Student Union and that it was actively involved
in operating the facility. To support their claim, the Plaintiffs first point to the
deposition of Cynthia Alexander, a Board of Regents employee, who testified that she
handled “virtually all of the operational aspects of [USG]” regarding its maintenance
obligations to the Student Union. The Plaintiffs also point to an email exchange
between the chief business officer for Savannah State University and a project
manager for the Board of Regents regarding repairs for the Student Union, which they
claim indicates that USG was “very active” in the management and operation of the
facility. This evidence, however, fails to support the conclusion that USG did not
fully part with possession of the Student Union. Both pieces of evidence merely
revealed that USG was “very active” in complying with its responsibilities for
maintenance and “repairs and replacements” for the Student Union. There was
nothing in either piece of evidence to show that, apart from its maintenance
obligations, USG controlled or operated the Student Union in any manner. The mere
15 fact that a landlord is active in repairing a property does not lead to the conclusion
that the landlord has not fully parted with possession of the premises under OCGA
§ 44-7-14. Accordingly, for all of the reasons stated above, we conclude that the trial
court properly determined that USG is an out-of-possession landlord under OCGA
§ 44-7-14, and therefore USG was entitled to summary judgment on the Plaintiffs’
negligence claim.
2. Next, the Plaintiffs argue that the trial court erred by granting summary
judgment to USG on their nuisance claim because genuine issues of fact remain as
to whether USG maintained a nuisance on Savannah State University’s campus. We
disagree. The law is well settled that an out-of-possession landlord cannot be held
liable for creating or maintaining a nuisance on the premises. See Diffley v.
Marshall’s at East Lake, 227 Ga. App. 343, 345 (489 SE2d 123) (1997) (holding that
the limited liability of OCGA § 44-7-14 encompasses “uses of leased premises that
create a nuisance”). As discussed above in Division 1, USG fully parted with
possession of the Student Union and, consequently, it cannot be held liable on the
Plaintiffs’ nuisance claim. See Younger v. Dunagan, 318 Ga. App. 554, 555-556 (733
SE2d 81) (2012) (holding that landlord was not liable on the plaintiff’s nuisance
claim regarding a vicious dog on the premises, where the landlord relinquished
16 possession and control over the premises to the tenant); Diffley v. Marshall’s at East
Lake, 227 Ga. App. 343, 344-345 (489 SE2d 123) (1997) (holding that the landlord
was not liable for nuisance because the tenant was in full possession of the premises).
Therefore, the trial court properly granted summary judgment to USG on the
Plaintiffs’ nuisance claim.
Accordingly, although the circumstances of this case are extremely unfortunate,
which is further underscored by the result we have reached in this matter, for the
reasons stated above, we are constrained by the record and we must affirm the trial
court’s order granting summary judgment to USG.
Judgment affirmed. Hodges and Pipkin, JJ., concur.