The Landings Club, Inc. v. Russell Williams

• Court: Court of Appeals of Georgia
• Decided: November 27, 2012
• Docket: A10A1956
• Status: Published

Opinion

WHOLE COURT

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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

November 27, 2012

In the Court of Appeals of Georgia A10A1955. THE LANDINGS ASSOCIATION, INC. v. WILLIAMS JE-090 et al. A10A1956. THE LANDINGS CLUB, INC. v. WILLIAM S et al. JE-091

E LLINGTON, Chief Judge.

In this action, the estate and heirs of Gwyneth Williams (collectively, “the

appellees”) seek to recover damages from the owners of a lagoon where Williams was

allegedly killed by a large alligator. The State Court of Chatham County denied in part

the motion for summary judgment filed by the joint owners of the lagoon, The

Landings Association, Inc. (“the association”) and The Landings Club, Inc. (“the

club”) (collectively, “the owners”). In an earlier appeal, we concluded, inter alia, that

a question of fact remains as to whether the owners failed, pursuant to the law of

premises liability, to take reasonable steps to protect Williams from being attacked

and killed by an alligator on their premises. See The Landings Assn. v. Williams, 309 Ga. App. 321, 324-326 (1) (711 SE2d 294) (2011). The Supreme Court of Georgia

granted certiorari to determine whether we erred in reaching this conclusion. The

Landings Assn. v. Williams, _ Ga. _ (728 SE2d 577) (2012). The Supreme Court

found that the record shows that Williams had equal knowledge of the threat of

alligators within the community and, therefore, that the owners are entitled to

judgment as a matter of law on the appellees’ premises liability claims and reversed.

Id. at _. Accordingly, our decision in The Landings Assn. v. Williams, 309 Ga. App.

at 324-326 (1), is vacated, and the judgment of the Supreme Court is made the

judgment of this Court.

The grant of certiorari did not reach Division 2, 3, or 4 of our opinion.

In Division 2, we considered the owners’ argument that, under the common law

doctrine of animals ferae naturae, a landowner is not responsible as a matter of law for

any harm caused by a free wild animal on the owner’s land. Id. at 327-329 (2). We

held that, under Georgia law, the doctrine of animals ferae naturae does not operate

as an exception to Georgia’s general principles regarding a landowner’s duty to

exercise ordinary care in keeping its premises safe such as would confer a blanket

immunity from liability for any harm caused by a free wild animal on the owner’s

land. Id. We held that, “[a]lthough a defendant [owner or occupier] may be entitled

2 to summary judgment where, as in Williams v. Gibbs, [123 Ga. App. 677 (182 SE2d

164) (1971) (physical precedent only),] there is no evidence that the [defendant]

should have anticipated the presence of the wild animal that injured the plaintiff,”

where there is evidence from which a jury could find that the defendant should have

anticipated the presence of the wild animal and that it was reasonably foreseeable that

its presence would render the premises unsafe for visitors, the defendant will not be

entitled to judgment as a matter of law purely on the basis of the doctrine of animals

ferae naturae. The Landings Assn. v. Williams, 309 Ga. App. at 328-329 (2). We have

reviewed Division 2 and conclude that it is consistent with the Supreme Court’s

ruling, which likewise applied Georgia’s general principles of premises liability to the

owners’ appellate arguments.

In Division 3, we considered the association’s argument that it was entitled to

judgment as a matter of law on the appellees’ nuisance claim and held that the

appellees’ complaint failed to state a claim for nuisance. Id. at 329-330 (3).

Accordingly, we reversed the trial court’s summary judgment order in part. We have

reviewed Division 3 and conclude that it is also consistent with the Supreme Court’s

ruling.

3 As a result, our holdings in Divisions 2 and 3 of The Landings Assn. v.

Williams, 309 Ga. App. at 327-330 (2, 3), became binding upon return of the

remittitur and remain the judgment of this Court. Shadix v. Carroll County, 274 Ga.

560, 563-564 (1) (554 SE2d 465) (2001); Kaminer v. Canas, 294 Ga. App. 669, 670

(671 SE2d 175) (2008).

In Division 4 of our opinion, we considered the club’s argument that the trial

court erred in considering certain experts’ depositions. The Landings Assn. v.

Williams, 309 Ga. App. at 330 (4). Because we concluded that the owners were not

entitled to judgment as a matter of law on the appellees’ premises liability claims,

even when the challenged testimony was not considered, we concluded that the issue

of whether the trial court abused its discretion in considering the testimony was moot.

Id. Although it is not clear from the opinion of the Supreme Court whether it

considered the challenged testimony, in the absence of an express ruling on the club’s

argument, we find no basis for vacating that division of our opinion.

Judgment reversed. Ellington, C. J., Barnes and Phipps, P. J., and M iller, J.,

concur. Dolyle, P. J., Andrews and McFadden, JJ., concur specially. A10A1955. THE LANDINGS ASSOC IATIO N, INC . v.

WILLIAMS et al. A10A1956. THE LANDINGS CLUB, INC. v.

WILLIAM S et al.

A NDREWS, Judge, concurring specially.

In The Landings Assn. v. Williams, 291 Ga. 397 (728 SE2d 577) (2012), the

Supreme Court stated that it granted certiorari to address this Court’s holding in The

Landings Assn. v. Williams, 309 Ga. App. 321 (711 SE2d 294) (2011), that “a

question of fact remained as to whether The Landings entities failed, pursuant to the

law of premises liability, to take reasonable steps to protect Gwyneth Williams from

being attacked and killed by an alligator in the planned residential community and golf

club owned and/or managed by the Landings entities.” The Landings Assn., 291 Ga.

at 397. The Supreme Court reversed the above holding and held that the Landings

entities were entitled to summary judgment on the premises liability claims brought

against them “[b]ecause the record shows that Williams had equal knowledge of the

threat of alligators within the community.” Id. Accordingly, I concur with the

statement in the present majority opinion that “our decision in The Landings Assn. v. Williams, 309 Ga. App. at 324-326 (1), is vacated, and the judgment of the Supreme

Court is made the judgment of this Court.”

Because the Supreme Court decided the premises liability claims solely on the

basis of the equal knowledge rule, this rendered unnecessary and dicta any discussion

in division 2 of our prior decision in The Landings Assn., 309 Ga. App. 321, regarding

application of the doctrine of animals ferae naturae. Zepp v. Brannen, 283 Ga. 395,

397 (658 SE2d 567) (2008). Accordingly, I disagree with the present majority opinion

to the extent it states that division 2 of our prior decision now establishes the binding

law of the case or law of the State of Georgia regarding application of the doctrine of

animals ferae naturae. Not only is the majority discussion of the doctrine of animals

ferae naturae in our prior decision in The Landings Assn., 309 Ga. App. 321, non-

binding dicta, it is erroneous dicta for the reasons stated in my prior dissenting

opinion. Id. at 330-336.

I am authorized to state that Presiding Judge Doyle and Judge McFadden join

in this opinion.

2 A10A1955. THE LANDINGS ASSOCIATION, INC. v. WILLIAM S et al.

A10A1956. THE LANDINGS CLUB, INC. v. WILLIAM S et al.

M CF ADDEN, Judge, concurring specially.

I agree with Judge Andrews that Division 2 of our original majority opinion is

now dicta. But, as I concurred fully in our prior majority opinion and as the Supreme

Court did not address the analysis in Division 2 of our prior majority opinion, I

continue to agree with that analysis.