Hayes v. Lakeside Village Owners Ass'n
| Decision Date | 13 December 2006 |
| Docket Number | No. A06A2257.,A06A2257. |
| Citation | 282 Ga. App. 866,640 S.E.2d 373 |
| Parties | HAYES et al. v. LAKESIDE VILLAGE OWNERS ASSOCIATION, INC. |
| Court | Georgia Court of Appeals |
Skelly & Deininger, Richard M. Skelly, Atlanta, for appellants.
Carlock, Copeland, Semler & Stair, Frederick M. Valz III, for appellee.
In this personal injury action, William and Ruth Hayes appeal the grant of summary judgment to Lakeside Village Owners Association, Inc. ("Association"), contending: (1) that the trial court erred in construing a recorded covenant assigning them a duty to inspect common facilities to be a covenant running with the land enforceable against them; (2) that the trial court erred by misconstruing the covenant; (3) that a material issue of fact remained as to the Hayeses' duty to inspect; (4) that the duty to inspect was unenforceable as they did not sign the writing purporting to impose the duty on them; and (5) that enforcing the covenant violates the public policy of Georgia. 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.
Matjoulis v. Integon Gen. Ins. Corp.1 So viewed, the record shows that in September 2004, the Hayeses owned a parcel in the Lakeside Village community and were duespaying members of the Association, which owned and managed common areas in the Lakeside Village community. While using a common area for recreation, William Hayes was seated in a chair when it collapsed, injuring him.
The Hayeses filed a personal injury action against the Association, alleging negligence and gross negligence on the part of the Association for failing to properly maintain the chair, and seeking $5,800,000 in damages. The Association answered and moved for summary judgment, arguing that the Hayeses were bound by a restrictive covenant (recorded and referenced in their deed) assigning them a duty to continuously inspect the common areas and use such facilities at their own risk. The trial court granted the Association's motion, giving rise to this appeal.
1. The Hayeses contend that they were not bound by the covenant because it was a collateral or personal covenant which did not run with the land and bind future assignees, including the Hayeses.2 We disagree.
When [a] covenant is of a collateral nature to the land, it is a personal obligation and does not run with the land .... In order that it may run with the land, its performance or nonperformance must affect the nature, quality, or value of the property demised, independent of collateral circumstances, or it must effect the mode of enjoyment, and there must be a privity between the contracting parties.
(Punctuation omitted.) Copelan v. Acree Oil Co.3
However, in Lowry v. Norris Lake Shores Dev. Corp.4 the Georgia Supreme Court explained that
[o]ver half a century ago this court noted that [t]here is a growing tendency to incorporate equitable doctrines with commonlaw rules, and, in equity, covenants relating to land, or its mode of use or enjoyment, are frequently enforced against subsequent grantees with notice, whether named in the instrument or not, and though there is no privity of estate. It is immaterial in such cases whether the covenant runs with the land or not, the general rule being that it will be enforced according to the intention of the parties. It is only necessary that the covenant concern the land or its use, and that the subsequent grantee has notice of it. Covenants are so enforced on the principle of preventing a party having knowledge of the just rights of another from defeating such rights.
(Punctuation omitted; emphasis supplied.) Id. In Lowry, the Supreme Court enforced a covenant requiring lot purchasers to "pay ... for beach privileges, and for the use of other designated recreational facilities[, the use of which] is subject to approval of the user for membership in [the] Country Club ... and to compliance with the rules and regulations from time to time promulgated by the Grantor." Id. at 550, 203 S.E.2d 171. Despite the appellant's argument to the contrary, the Court concluded that this covenant did bind the appellant as it sufficiently concerned the land or its use. Id.
Here, a similar covenant is in place. The specific provision that the Association seeks to enforce reads as follows:
From the time that the common area, or any portion thereof, is opened and put into use for the enjoyment of parcel owners [i.e., the Hayeses], owner [i.e., the developer] shall be and remain wholly free and clear of any and all liability to, or claims by, all parcel owners, and all persons and entities, of whatever kind or character, whether sounding in contract or tort, deriving from the occurrence of any injury or damage to any person or property on, or in respect of the use and operation of, the common area or any of its improvements, fixtures, and facilities; inasmuch as the control, operation, management, use and enjoyment, of the common area shall be within, under, and subject to the Association—and not owner [developer]. In this respect, it shall be the affirmative duty and responsibility of each parcel owner, and user of the common area facilities to continuously inspect the same for any defects or perils or other unsafe conditions or circumstances, prior to and during such use or enjoyment thereof; and all users of, and visitors to, the common area and its improvements and facilities shall use, enjoy, and visit, the same at their own risk and peril.
(Emphasis supplied.)
As stated in Lowry v. Norris Lake Shores Dev. Corp., supra, 231 Ga. at 551, 203 S.E.2d 171, for a covenant to be binding on future successors such as the Hayeses, "[i]t is only necessary that the covenant concern the land or its use, and that the subsequent grantee has notice of it." See also Timberstone Homeowner's Assn. v. Summerlin.5 It is undisputed that the Hayeses had notice of the covenant through the reference in their deed and the recording of the covenant. Therefore, as with the covenant in Lowry, which required users to pay for the use of common facilities and abide by rules governing their use of common facilities and was deemed to "concern the land or its use," id. at 551, 203 S.E.2d 171, we fail to see how the covenant here does not also concern the land or its use. By its terms, the covenant here requires parcel owners to pay fees in exchange for their use of the common areas, and outlines conditions under which the common facilities may be used. Accordingly, the trial court did not err in concluding that the covenant is enforceable against the Hayeses.
2. The Hayeses next contend that the trial court erred in construing the covenant to relieve the Association of its duty to inspect the common area and maintain it in a safe condition. We disagree.
Generally, owners of property have a duty to invitees to exercise ordinary care and keep the premises safe. See OCGA § 51-3-1; Robinson v. Kroger Co.6 The Hayeses argue that, if anything, the covenant created a duty on the part of the Hayeses to inspect the premises for their safety, but it did not absolve the Association of its ordinary duty to inspect the common areas and keep them safe. However, such a reading would fail to give effect to the plain meaning of the provision—that the parcel owners shall use the common areas "at their own risk and peril"— which indicates an intention not to merely create a duty parallel to that ordinarily borne by a defendant landowner, but also to shift the duty entirely to the parcel owner using the common area.
The Hayeses also contend that their allegation that the Association was grossly negligent in ignoring the fact that the chair was "several decades old" raises an issue of fact precluding summary judgment. Ordinarily, "[w]hen facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable men as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury." (Punctuation omitted.) Trustees of Trinity College v. Ferris.7 However, here, where there was no duty to inspect on the part of the Association, and the Hayeses were bound to use the common area at their own risk, we fail to see how a higher degree of negligence on the part of the Association can reasonably be inferred.
3. The Hayeses further contend that, if they had a duty to inspect the chair, summary judgment is prevented by issues of fact as to whether they properly carried it out, because any defect in the chair was latent. We disagree.
To state a cause of action for negligence in Georgia ... there must be (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks 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. Before negligence can be predicated upon a given act, some duty to the individual complaining must be sought and found, the observance of which duty would have averted or avoided the injury or damage. No matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something that it should have done pursuant to the duty owed the plaintiff.
(Citations and punctuation omitted; emphasis supplied.) City of Douglasville v. Queen.8 Here, the restrictive...
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