Cham v. ECI Mgmt. Corp.

• Citation: 856 S.E.2d 267
• Decision Date: 15 March 2021
• Docket Number: S20G0601
• Parties: CHAM et al. v. ECI MANAGEMENT CORPORATION et al.
• Court: Georgia Supreme Court

856 S.E.2d 267

CHAM et al.
v.
ECI MANAGEMENT CORPORATION et al.

S20G0601

Supreme Court of Georgia.

Decided: March 15, 2021
Reconsideration Denied March 30, 2021

Maxwell Kent Thelen, James Darren Summerville, The Summerville Firm, LLC, 1226 Ponce de Leon Avenue, Atlanta, Georgia 30306, Jeffrey Parker Shiver, Alan John Hamilton, R. Scott Campbell, Daniel Colin Beer, Shiver Hamilton LLC, 3490 PIedmont Road, Suite 640, Atlanta, Georgia 30305, for Appellant.

John E. Hall, Jr., Jeffery Randolph Saxby, Paul Barry Trainor, Pearson Kern Cunningham, Hall Booth Smith, P.C., 191 Peachtree Street, N.E., Suite 2900, Atlanta, Georgia 30303-1775, for Appellee.

Warren, Justice.

In this wrongful death action, the surviving spouse of Franklin Callens and the administrator of his estate (collectively, "Plaintiffs") sued the owner and manager of an apartment complex (collectively, "Defendants") where Callens was killed during an armed robbery.¹ Plaintiffs alleged that Defendants were negligent in failing adequately to secure their premises from criminal activity. Defendants prevailed at trial, and Plaintiffs appealed, contending, in relevant part, that the trial court erred in giving a jury instruction on the law applicable to "licensees" in premises liability cases. The Court of Appeals affirmed the trial court's decision on that issue. We granted certiorari on the following question:

Did the trial court err in charging on the duty a landowner owes a licensee, when there was evidence showing that the plaintiffs’ decedent was a guest of a lawful tenant of the landowner?

For the reasons that follow, we conclude that the answer is "no" and therefore affirm.

1. Background

In December 2015, Callens was shot and killed during an armed robbery in a parking lot of the Concepts 21 Six-Flags apartment complex that was owned and managed by Defendants. It is undisputed that the parking lot was a common area of the apartment complex. At the time of his death, Callens was separated from his spouse and was staying in a three-bedroom apartment in the complex with his girlfriend, Asia Jones. At trial, Jones testified that she and Callens

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began living together in July 2014 and that she leased the apartment at issue in September 2014. Before signing the lease, Jones testified, she had asked the assistant manager if it would be "okay" for Callens to live with her, and the assistant manager said that it was "perfectly fine," as long as Jones paid "the amount for the rent, whatever that is, like double the rent or whatever."² Jones further testified that she talked to the assistant manager "[m]ultiple times" about Callens living in the apartment and that she told the assistant manager that she would like Callens to be present at lease signing and during the apartment tour to "make sure he liked it before I leased it." And, Jones testified, Callens was present with her at the time she signed the lease.

Other evidence, however, suggested that Callens was not authorized to reside on the property. Jones acknowledged that she did not put Callens's name on the rental application that asked the applicant to list the "Name and Relationship of All Other Persons to Occupy Apartment"; instead, Jones marked that space "N/A." And the rental agreement that Jones signed—first in September 2014 and then again as part of a renewal in October 2015—stated that the apartment "shall be used for Residential purposes only and shall be occupied only by persons named in Resident's application to rent." Similarly, a former property manager testified that the management had a policy that every adult who resides in a rented apartment should be listed on the lease. The purpose of this policy, the manager explained, was to allow the management to obtain a credit report and criminal background check on all adult occupants of the property.

During the charge conference, Defendants requested that the trial court give the jury the pattern charges on the duty of care owed to invitees, licensees, and trespassers in premises liability cases. Plaintiffs opposed the licensee charge, arguing that, based on the evidence presented, Callens was either an invitee or a trespasser, depending on whether the jury believed Jones that Defendants gave Callens permission to live in the apartment. As a result, Plaintiffs contended, "it is appropriate under the facts of this case to charge [the jurors] on invitee and on trespasser, but not as to licensee."

The trial court ruled in Defendants’ favor and included the following pattern charge on licensees as part of its jury instructions:

The licensee is a person who, one, is not a customer, employee, or trespasser; two, does not stand in any contractual relation with the owner of the premises; and three, is permitted expressly or impliedly, to go on the premises merely for his or her own interests, convenience or gratification.

The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had business relations with the owner of the premises that would cause his or her presence to be beneficial to both. In the absence of some relationship with the owner or occupier of the premises, no invitation may be implied, and the injured person must be regarded as a licensee.

A licensee enters on the premises at his or her own risk, and the owner owes the licensee no duty as to the conditions of the premises, except that the owner should not knowingly let the licensee run into a hidden peril or willfully or wantonly cause him or her injury.

The jury returned a verdict in favor of Defendants, and the trial court entered a judgment on the verdict. Plaintiffs appealed to the Court of Appeals, arguing (among other things) that the trial court erred in instructing the jury on the definition of and duty owed to a licensee.

The Court of Appeals reversed the trial court's judgment on two issues for which we did not grant certiorari review, and it remanded the case (with directions) for a new trial. See

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Cham v. ECI Mgmt. Corp. , 353 Ga. App. 162, 836 S.E.2d 555 (2019).³ On the jury charge issue, however, the Court of Appeals affirmed, holding that the trial court did not err in charging the jury on the duty owed to a licensee. Specifically, the Court of Appeals reasoned that

even if Callens was living in the apartment without Defendants’ permission and in violation of the lease, Callens could still be considered a social guest of Jones, the authorized tenant[,] and therefore permitted on the premises by the tenant for his "own interests, convenience, or gratification" and without any contractual relation to Jones or Defendants.

Id. at 165-166, 836 S.E.2d 555. To support its reasoning, the Court of Appeals cited the general principle that social guests are deemed to be licensees, rather than invitees. See id. at 166, 836 S.E.2d 555 ; Brown v. Dickerson , 350 Ga. App. 137, 138, 828 S.E.2d 376 (2019) ("[Plaintiff] undisputedly was a social guest on [landowner]’s property and thus was a licensee."); Thompson v. Oursler , 318 Ga. App. 377, 378, 733 S.E.2d 359 (2012) (in evaluating landowner's liability, noting that "Georgia has adopted the rule that a social guest is not an invitee but is a licensee") (citation and punctuation omitted). See also Brown v. Clay , 166 Ga. App. 694, 695, 305 S.E.2d 367 (1983). We granted certiorari to review the licensee charge the trial court gave the jury.

2. Applicable Law

To authorize a jury instruction, "[t]here need be only slight evidence supporting the theory of the charge." Daly v. Berryhill , 308 Ga. 831, 833, 843 S.E.2d 870 (2020). And "[t]he evidence supporting the charge does not have to be direct evidence. It is enough if there is something from which a jury could infer a conclusion regarding the subject." Id. at 833-834, 843 S.E.2d 870 (citation and punctuation omitted). See also Jones v. Sperau , 275 Ga. 213, 213, 563 S.E.2d 863 (2002) ("If there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue.") (citation and punctuation omitted). Here, we must decide whether there was at least "slight evidence" that Callens was a licensee, as opposed to an invitee or a trespasser, so as to warrant the jury instruction given at trial. See Daly , 308 Ga. at 833, 843 S.E.2d 870. To answer that question, we first examine the premises liability law applicable to this case.

(a) Background Principles of Landowner and Landlord Liability

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." Lipham v. Federated Dept. Stores, Inc. , 263 Ga. 865, 865, 440 S.E.2d 193 (1994). This duty is codified, in relevant part, in OCGA §§ 51-3-1, 51-3-2, and 51-3-3. The first of these code sections establishes that a landowner owes a duty of ordinary care "in keeping the premises and approaches safe" when the landowner has extended an invitation to the visitor:

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.

OCGA § 51-3-1. The next code section defines "licensees" and clarifies that landowners owe a different and lower standard of care—liability only for "willful or wanton injury"—for visitors who are classified as licensees:

(a) A licensee is a person who:

(1) Is neither a customer, a servant, nor a trespasser;

(2) Does not stand in any contractual relation with the owner of the premises; and

(3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.

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(b) The owner of the premises is liable to a licensee only for willful or wanton injury.

OCGA § 51-3-2. The third code...