Tisdale v. United States

838 F. Supp. 592, 1993 U.S. Dist. LEXIS 16849, 1993 WL 497552
CourtDistrict Court, N.D. Georgia
DecidedNovember 15, 1993
DocketCiv. No. 1:92-cv-268-ODE
StatusPublished
Cited by1 cases

This text of 838 F. Supp. 592 (Tisdale v. United States) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tisdale v. United States, 838 F. Supp. 592, 1993 U.S. Dist. LEXIS 16849, 1993 WL 497552 (N.D. Ga. 1993).

Opinion

ORDER

ORINDA D. EVANS, District Judge.

This case is before the court on Defendant United States’ motion for summary judgment. Plaintiff, Beverly Tisdale, brought this action under the Federal Tort Claims Act (“FTCA”),. 28 U.S.C. § 1346(b) and § 2671 et seq., alleging that the United States Department of Housing and Urban Development (“HUD”) was negligent in failing to maintain certain property that it owned in a safe condition.

[594]*594 FACTS

This action arises from an incident which occurred at a house which was owned by HUD and located at 1380 McPherson Avenue, Atlanta, Georgia. On February 7, 1990, Plaintiff visited this home to determine whether she wished to purchase it from HUD. Plaintiff was accompanied by her son, Christopher Tisdale-Lugo (“Christopher”), and Christopher’s grandmother, Láveme Tisdale. The grandmother had seen the HUD home at 1380 McPherson Avenue listed for sale in an advertisement in the Atlanta Journal Constitution.

After inspecting the front of the premises, Plaintiff and her son went to the back of the home. Christopher then began to climb a metal staircase which was attached to the rear of the house. Upon reaching the steel and concrete landing at the top of the stairs, the staircase and landing collapsed beneath Christopher without warning. Christopher fell approximately fifteen feet breaking his left ankle. Metal screws were surgically placed in his ankle to try to repair the fracture.

The United States, through its agency HUD, acquired title to the McPherson Avenue property on August 5, 1987 by Special Warranty Deed from Thomas & Nettleton Company. On September 29, 1989, HUD entered into an Area Management Broker (“AMB”) contract with Defendant Coleman Realty Company (“Coleman”). Area Management Brokers (or “AMBs”) are real estate brokers or other qualified individuals who contract with HUD to arrange for and supervise the management, rehabilitation, and maintenance of HUD-acquired properties.

Under the terms of the AMB contract, Defendant Coleman was responsible for managing certain HUD-owned properties, including the McPherson Avenue property. As an AMB, Defendant Coleman was required to oversee the repair and maintenance of the McPherson property. In addition, Coleman was responsible for continually inspecting the property and eliminating any safety hazards. More specifically, the AMB contract states that Coleman was to (1) post warning signs; (2) notify police, taxing authorities, utility companies, and owner’s associations of HUD’s interest in the property; (3) notify HUD of damage due to vandalism, fire, and other causes; (4) remove and dispose of interior and exterior trash; (5) secure property to prevent unauthorized entry and damage by elements; (6) winterize operating systems and equipment; (7) order termite and other pest control inspections; (8) eliminate conditions which present safety hazards within five days of assignment of property and thereafter as required; (9) complete and provide HUD with lead based paint hazard report; (10) assume responsibility for keys and/or lock boxes; (11) ensure that grass and shrubbery are cuVtrimmed, clippings are removed, and snow is removed from walkways and sidewalks; (12) obtain tax and special assessment bills ■ and forward to HUD for processing/payment; (13) complete form HUD-9516 (Property Disposition Listing Report) and provide to HUD; (14) provide listing of needed repairs, with cost estimates; (15) solicit bids for repairs; (16) inspect completed repairs and ensure that repair contract is properly fulfilled; (17) post HUD “For Sale” sign; (18) routinely inspect properties and document such inspections with HUD inspection Report (9519 or 9519a) every 15 days after initial inspection; (19) determine fair market rental rate; (20) execute month-to-month leases; (21) collect and deposit rent; (22) investigate tenant complaints and provide recommendations to HUD; (23) initiate and administer eviction actions; (24) have operating systems tested and furnish report of condition to HUD; (25) provide assistance to interested parties regarding properties available for sale; (26) provide transportation to HUD representative for property inspections no more than once a month (randomly selected properties); and (27) monitor, inspect, and approve lawn maintenance contractor for area. See Coleman Deposition — Plaintiff’s Exhibit A.

Under the terms of the AMB contract, Coleman was required to inspect property newly acquired by HUD within five days of its assignment to Coleman. After this initial inspection, Coleman was required to routinely inspect any HUD property under the contract every fifteen days. Coleman was au[595]*595thorized to make any necessary repairs up to $1,000.00, but any repairs in excess of $1,000.00 required prior authorization from -HUD. '

HUD’s own actions with respect to properties managed by an AMB were as follows. HUD was responsible for placing advertisements in an attempt to sell the properties. Thus, HUD was the party that advertised the McPherson Avenue property for sale by placing an ad in the Atlanta Journal Constitution. In addition, HUD determined the sales disposition of certain property, including the price of the property, whether it was sold as-is, or with or- without insurance or escrow repairs. In addition, HUD authorized any repairs that needed to be made in order to sell the property. HUD was required to reassess the property every thirty days if the property was not sold and determine whether to authorize the AMB to do further repairs in an effort to sell the property. Also, as stated, above, HUD was responsible for approving all repairs in excess of $1,000.00.

Under certain circumstances, HUD permitted some of its acquired properties to be rented. In these situations, HUD was the party who authorized the rental of the property. HUD was the designated landlord on any lease regarding HUD owned property, and HUD was the party who set the rental rate. HUD was also the party who determined whether an eviction proceeding should be authorized on a leased HUD property.

HUD’s duties included overseeing the performance of AMBs such as Coleman. HUD employees referred to as Realty Specialists were required to review documents submitted by an AMB to determine if they were accurate and complete. These HUD Realty Specialists were required to oversee the performance of AMBs. In addition, Realty Specialists were required to inspect at least ten percent of the properties assigned to each AMB. The purpose of these inspections was to make sure the AMBs were complying with the terms of the contract. -

ANALYSIS

Plaintiff alleges in her complaint that Defendant United States, through its agency HUD, was the owner and party in control of the McPherson Avenue property, and, therefore, owed a duty to Plaintiff as invitee to exercise ordinary care in keeping the premises safe. Plaintiff further alleges that the collapse of the staircase and landing which injured her son was the direct result of Defendant’s negligence in failing to maintain the premises in' a safe condition. In addition, Plaintiff alleges that Defendant United States had a duty to inspect, supervise, and evaluate the-performance of Defendant Coleman under the AMB contract. According to Plaintiff, if Defendant United States had properly performed this duty, the dangerous condition posed by the staircase and landing would have been discovered and Plaintiffs son would not have been injured.

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Related

Yeary v. United States
921 F. Supp. 549 (S.D. Indiana, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
838 F. Supp. 592, 1993 U.S. Dist. LEXIS 16849, 1993 WL 497552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tisdale-v-united-states-gand-1993.