George v. Hercules Real Estate Servs., Inc.

• Decision Date: 18 November 2016
• Docket Number: A16A1090
• Citation: 795 S.E.2d 81,339 Ga.App. 843
• Parties: GEORGE v. HERCULES REAL ESTATE SERVICES, INC.
• Court: Georgia Court of Appeals

339 Ga.App. 843

795 S.E.2d 81

GEORGE

v.HERCULES REAL ESTATE SERVICES, INC.

A16A1090

Court of Appeals of Georgia.

November 18, 2016

Reconsideration Denied December 15, 2016

Andrew Timothy Rogers, William Michael D'Antignac, Gilbert H. Deitch, David Harper Glass, Atlanta, Kara Elizabeth Phillips, for Appellant.

James Peter Myers, Brynda Rodriguez Insley, Atlanta, Gregory Young Shin, for Appellee.

Doyle, Chief Judge.

Derrick George filed a premises liability action against Hercules Real Estate Services, Inc. ("Hercules"), the manager of the apartment complex in which George lived when he was shot by unknown assailants during a home invasion. George asserted claims for negligence, nuisance, and punitive damages. Hercules answered and filed a counterclaim for unpaid rent and other fees. The trial court granted summary judgment to Hercules as to all of George's claims and as to Hercules's counterclaim, and George appeals. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.¹

So viewed, the record shows that George moved into an apartment in The Villas at Lakewood in November 2010. On June 11, 2011, while he was not home, George's apartment was burglarized between the hours of midnight and 2:00 a.m. In response to the burglary, Hercules repaired George's damaged front door and installed a metal burglar guard, which made the door more secure when locked, but also made it difficult to engage the deadbolt. George's apartment also had an alarm system that was monitored 24 hours per day and included a front-door panic button in each unit, including George's.

According to George, after the burglary, he obtained a shotgun and kept it beside the front door for protection because he believed the complex was not safe.

In the early morning hours of July 27, 2011, George was home with a friend when someone knocked on his door. George turned on the front porch light, looked through the peephole, and asked who was there; he could see only the silhouette of a single individual, and he could not hear the person on the other side of the door. Although he was not expecting anyone at the time, George opened the door, propping his foot against it out of concern for his safety. When George opened the door, a second individual emerged, and he and the first man tried to force their way into George's apartment. George pushed back and tried to lock the door, but he was unable engage the deadbolt. George grabbed his shotgun and fired at the intruders. The intruders fired back, shooting George four times. The police never apprehended or identified the intruders. After the shooting, George did not return to his apartment nor did he pay rent for the apartment.

Hercules was aware of prior crimes at the apartment complex² and employed a private security service during day hours. Prior to the shooting, in May 2011, Hercules's on-site manager requested that the corporate office provide additional security for the complex, but Hercules did not comply with the request.

George sued Hercules, asserting claims for negligence, nuisance, and punitive damages. With regard to his negligence claims, he alleged that Hercules failed to (1) keep the premises in proper repair; (2) provide adequate security; and (3) keep the premises safe. Hercules asserted a counterclaim against George for unpaid rent and moved for summary judgment on all claims. The trial court granted summary judgment to Hercules on all claims, and this appeal followed.

1. George's claims . Because the record is devoid of any competent evidence to create a question of fact on the element of causation, Hercules was entitled to summary judgment as to George's claims.³

(a) Negligence . There are four elements to a negligence claim in Georgia:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.⁴

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.⁵

As the movant, Hercules offered evidence that as part of a $7 million renovation of the property, it installed in each unit a monitored security alarm equipped with a panic button in each unit; added exterior security cameras around the property; employed security guards in varying hours seven days a week; provided a twenty-four-hour phone number for maintenance and security issues; added an entry gate and landscaping to prevent unauthorized entry; and worked with the resident community, neighborhood watch, and police department to increase involvement and presence in the complex. Hercules also pointed to the lack of expert or other testimony in the record that any additional security measures would have prevented George from being shot after voluntarily opening his door to a stranger after midnight. Stated another way, Hercules argued that there is a lack of evidence on causation—that there is no evidence that its alleged failure to provide adequate security caused George's injuries.⁶

In response, George points only to the testimony of Celina Nyack, Hercules's community manager, and Joe Bulat, the owner of the security company. While George states that the security company recommended additional security measures, a review of Bulat's deposition belies this assertion. When asked whether he made any recommendations, Bulat replied: "I would have liked to have had more hours, of course, but if I said, do you want to increase the hour? No, they had a budget."⁷

Similarly, George claimed that Hercules's on-site manager "requested more security and surveillance because the tenants were ‘at the mercy of criminal activity on the property.’ " A closer look at the email written by Nyack shows that on May 21, 2011, she requested more security on weekend days and weekday evenings "[d]ue to the school year ending and the weather inclement [sic]."⁸ Nonetheless, there is no evidence or testimony that reducing or increasing security would have affected the crime rate in general or the particular crime that injured George. Rather, the evidence showed that security patrol hours had remained consistent, and the internal incident reports show that crime varied from month to month and year to year.⁹

This evidence is insufficient to create a question of fact on whether George's injuries were proximately caused by any act or omission of Hercules.¹⁰ For example, in Johns v. Housing Authority for the City of Douglas ,¹¹ a tenant was raped after an assailant entered her apartment through a window in which she had placed cardboard to fill a gap between the window and an air conditioning unit she installed.¹² There was no evidence indicating how the assailant entered the complex or whether he was a resident.¹³

To support its motion for summary judgment, the [defendant] Housing Authority pointed to: the lack of evidence showing that any of the allegedly unsafe conditions presented by its failure to repair the fence or increase common area lighting or security patrols proximately caused the attack; evidence that [the plaintiff] had equal or superior knowledge of the allegedly unsafe conditions; and evidence that the unsafe condition that actually allowed the assailant to enter her apartment (i.e., the manner in which she installed the air conditioner window unit) was created by [the plaintiff].¹⁴

The Court pretermitted the issues of superior knowledge and foreseeability of the attack and assumed that the Housing Authority breached its duty by not making the repairs or improvements suggested by the plaintiff.

Nonetheless, we affirmed the grant of summary judgment to the Housing Authority because there was no evidence that any such breach caused the plaintiff's injuries:

a jury would have to speculate that improvements to security patrols and lighting, and a repair to the fence, would have prevented the assailant from approaching [the plaintiffs'] apartment unit and reaching through her window to gain entry into her apartment. Speculation that raises a mere conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment .¹⁵

Here, a request for more security based upon school ending for the summer and inclement weather, along with a comment that the property along the fence lines and behind the buildings was at the mercy of criminals, coupled with the security company's desire for more hours (though without any request for more), simply does not provide evidence that Hercules proximately caused George's injuries sustained when he was shot after voluntarily opening his door to an unknown person after midnight. Because George failed to meet his burden of demonstrating a triable issue of fact as to proximate cause, summary judgment in favor of Hercules on his negligence claim is proper.

(b) Nuisance . Proximate cause is also an essential element in a nuisance claim.¹⁶ As we held in Division 1 (a), George failed to meet his burden...