The Burden on Landlords to Protect Tenants Has Been Diminished

Late one night in the summer of 2011, Derrick George heard a knock on the door of his apartment in southwest Atlanta. He saw a lone man standing out front and slightly opened the door to inquire. Suddenly a second man appeared and the two strangers forced themselves into the apartment and shot Mr. George four times. Mr. George survived the incident, but he never returned to the apartment and stopped paying the rent.

Mr. George went on to file claims against the manager of the apartment complex, Hercules Real Estate Services (“Hercules”), for nuisance and negligence. Hercules responded with counterclaims against Mr. George for failing to pay his rent. Similar to other forms of negligence, Georgia law allows a tenant to sue a landlord for negligence if the landlord fails to keep the tenant safe. Hercules won in Fulton Superior Court and the case was appealed to the Georgia Court of Appeals. The ruling of the Court of Appeals puts into jeopardy a critical protection tenants are given under Georgia law.  

Hercules Can’t Be Liable, The Tenant Voluntarily Opened the Door

At first glance it seems obvious that Hercules shouldn’t be liable because Mr. George should have known not to open his door. A homicide, sexual assault, several armed robberies, and 66 break-ins all occurred at the complex. Hercules stated that they spent $7 million addressing these issues by installing security cameras and gates around the complex. Mr. George’s unit had actually been vandalized less than a month prior to him being shot, which prompted Hercules to install a burglar guard on the door and a panic button in the unit.

Villas at Lakewood

The Apartment Complex – Villas at Lakewood

However, evidence suggests that many of these security features were in disrepair and grossly inadequate. The company repeatedly failed to inform tenants of crimes and wouldn’t provide security guards at night. The gate at the front of the complex consisted of a meager 1 by 6 foot board and the fence surrounding the property was riddled with holes that frequently went unfixed. In fact, a burglar had recently used one of those holes to commit a crime in the complex. Police reports suggest that the burglar guard was improperly installed by Hercules and prevented Mr. George from fully engaging the deadbolt. The security cameras, though present around the property, were too high to capture faces or license plates. Evidence also suggests that corporate management failed to take the advice of the apartment staff to fix these problems and upgrade security.

The opposing evidence is critical in this case. In a negligence action it must be proved that:

  1. the defendant (Hercules) owed a duty to the plaintiff (Mr. George);
  2. the defendant breached the duty;
  3. the plaintiff suffered a harm; and
  4. the breach caused the plaintiff’s harm.

The first and third elements are not in dispute: Georgia law already recognizes that landlords have a duty to keep tenants safe and Mr. George suffered a harm when he was shot. To satisfy the other requirements, Mr. George must show that Hercules was aware of the criminal activity, failed to take reasonable actions to protect Mr. George, and this failure caused Mr. George’s harm.

But Hercules’ Shoddy Repairs Led to Mr. George Being Shot

In proving the causation element, Hercules can still be liable through their negligent actions (or inactions) even though someone else intervened and actually caused the harm to Mr. George (the shooters). If a tenant being shot by intruders was a reasonably forseeable outcome of Hercules’ negligent acts then we can say that Hercules proximately caused harm to Mr. George. [1] Even if the answer is yes, Hercules did proximately cause the harm, Hercules could escape liability by showing that Mr. George assumed the risk of being shot; that is, Mr. George knew the risk and failed to take ordinary care to prevent the harm.

Under Georgia law, when a genuine issue of material fact is present then the case should go to a jury. The judge will instruct the jury on the legal definition of negligence and proximate cause and then the jury will determine if the facts constitute negligence on the part of Hercules. However, if a jury could only find Hercules liable through pure speculation and conjecture then a court can grant summary judgment to Hercules; meaning the court can rule, as a matter of law, that Hercules is not liable and conclude the case without a jury.

Simply put, if the evidence allows a jury to reasonably find that the landlord breached their duty to the tenant and that the harm was a reasonably forseeable outcome of the negligence then the case should be submitted to a jury to decide liability.

The Court Too Easily Dismisses The Opposing Evidence

The Georgia Court of Appeals found this to be an easy case. The court upheld the Fulton Superior Court’s finding that given the evidence, a jury could only find Hercules as the cause of Mr. George’s harm through pure speculation. Even so, since Mr. George voluntarily opened the door he assumed the risk. So the court upheld the Superior Court’s grant of summary judgment to Hercules thereby removing the matter from jury consideration. In doing so, the court is stating that, given the evidence, it is clear and indisputable that Hercules’s botched security efforts could not have substantially contributed to Mr. George’s harm.

It’s entirely possible that when presented with the evidence, a jury could find that Hercules failed to take reasonable measures to secure the property and Mr. George’s harm was a reasonably forseeable outcome of the negligent acts. Remember, evidence suggests that the burglar guard was improperly installed to such an extent that Mr. George could not fully lock his door. During the attack he attempted to shut and lock the door, but the assailants overpowered him.

It’s also possible that a jury could agree with the court and find that Hercules is not liable. After all, Hercules did make some attempts to secure the property and perhaps Mr. George did assume the risk of being shot; he probably had knowledge of crime in the vicinity and he may not have taken ordinary care to prevent the gunshot wounds.

A majority of the court, though, too easily dismissed the idea that a jury could find Hercules liable without heavily relying on speculation.  

In analyzing a summary judgment request, the court is supposed to view the evidence in a light most favorable to the non-moving party. Since Hercules asked the court to grant summary judgment (it was the moving party), the evidence should be viewed in a light most favorable to Mr. George. When looking at the evidence this way it’s clear that a jury could reasonably find Hercules to be liable; therefore the court should have dismissed Hercules’ motion for summary judgment and allowed the case to proceed to the jury.

Court of Appeals: Perhaps Tenants Just Shouldn’t Open Their Doors

As the dissenting judges note, by not submitting the question to the jury, the court is essentially stating that if any evidence exists showing crime in the vicinity of the apartment, then as a matter of Georgia law, a landlord cannot be held liable if a tenant opens their door and gets harmed. This isn’t to say that the dissenting judges would have ruled in favor of Mr. George had they been on the jury. They are simply stating that given the evidence this is not such a clear and indisputable case so as to remove it from jury consideration.

Many poor and middle-class tenants don’t have the ability to simply walk-away from a lease if their landlord fails to address safety issues. In a state that affords few protections to tenants, the ability to sue a landlord for the landlord’s negligent acts is an important legal safeguard. Knowing that a jury will be given the opportunity to decide if a landlord is negligent should act as a warning to landlords to be prompt and diligent in their actions. Based on the ruling by the Georgia Court of Appeals, it appears that this protection is being slowly chipped away.   

  1. See FPI Atlanta, LP v. Seaton


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