Jackson v. Post Properties, Inc.

• Decision Date: 01 March 1999
• Docket Number: No. A98A1980.,A98A1980.
• Citation: 236 Ga. App. 701,513 S.E.2d 259
• Parties: JACKSON v. POST PROPERTIES, INC.
• Court: Georgia Court of Appeals

513 S.E.2d 259

236 Ga. App. 701

JACKSON v. POST PROPERTIES, INC.

No. A98A1980.

Court of Appeals of Georgia.

March 1, 1999.

Carter & Ansley, Keith L. Lindsay, Robert A. Barnaby II, Atlanta, for appellant.

Johnson & Kane, Stephen R. Kane, Atlanta, for appellee. BLACKBURN, Judge.

Kim Jackson appeals the trial court's order granting Post Properties, Inc.'s (Post) renewed motion for summary judgment in this premises liability action. Jackson was raped by an unknown assailant after moving from an upper level unit to a ground level unit at Post Brook Apartments. She contends that issues of material fact involving inadequate security preclude summary judgment. We agree that issues of material fact exist and, therefore, reverse the trial court.

We review de novo a trial court's grant of summary judgment. Bandy v. Mills, 216 Ga.App. 407, 454 S.E.2d 610 (1995). "To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

The general rule is that a landlord is not an ensurer of his tenant's safety, Lau's Corp, supra at 492, 405 S.E.2d 474; however, the landlord does have a duty to exercise ordinary care to prevent foreseeable third-party criminal attack upon tenants. See Sturbridge Partners v. Walker, 267 Ga. 785, 482 S.E.2d 339 (1997). A tenant will be precluded from recovery, however, as a matter of law against the landlord when he or she has equal or superior knowledge of the risk and fails to exercise ordinary care for his or her own safety. O'Steen v. Rheem Mfg. Co., 194 Ga.App. 240, 242, 390 S.E.2d 248 (1990) ("`[t]he superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant's negligence with the exercise of ordinary care'"). See also Clark v. Carla Gay Dress Co., 178 Ga.App. 157, 342 S.E.2d 468 (1986).

Here Jackson knew of the risk of third-party criminal attack. Before Jackson was raped, another tenant had been raped in a ground floor apartment at Post Brook. When this rape occurred, Jackson lived at Post Brook in an upper level apartment where she had previously been the victim of an unsolved burglary. Post, in response to the rape, conducted town hall-type meetings with the residents and distributed community newsletters to address the residents' safety concerns. Jackson learned by attending these meetings and receiving the newsletters that the previous rape occurred in a ground floor unit and the suspect had not been apprehended. With knowledge of the prior rape and the experience of being the victim of an unsolved burglary, Jackson was on notice of the risk of third-party crime at Post Brook. When Jackson moved from her upper level apartment to the ground floor, she and Post had equal knowledge of the risk of third-party criminal attack, including rape. Thus, the central issue is whether Jackson could have taken any action in the exercise of ordinary care to avoid the consequences of Post's alleged negligence. Post and Jackson were equally aware of the risk of third-party criminal attack.

"[O]rdinary [care] is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances." OCGA § 51-1-2. "Exactly what constitutes `ordinary care' varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm." (Citations and punctuation omitted.) Lau's Corp. v. Haskins, supra at 493(2), 405 S.E.2d 474. Whether a party has failed to exercise ordinary care may be decided by the court only in cases in which "undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached." (Punctuation omitted.) Bishop v. Mangal Bhai Enterprises, 194 Ga.App. 874, 875(2), 392 S.E.2d 535 (1990).

1. A question of fact exists as to the proper use of the window locks. Jackson alleges that the assailant entered through her sunroom window which was closed and locked. She claims that the night she was raped, the sunroom window was locked with the manufactured "spoon lock" and the "thumbscrew" locks which Post provided to all ground floor residents. Post contends that Jackson was improperly using the "thumbscrews" and, as a result, the assailant was able to gain entry through her sunroom window.

Our review of the record reveals a factual issue regarding the proper use of the "thumbscrews." Jackson admits in her deposition that she had been told by Post to place the "thumbscrews" at the bottom of the top frame. The night she was attacked the "thumbscrews" in her sunroom window were six to eight inches above the base of the frame so that she could more easily open the window for fresh air. The Executive Vice President of Services for Post deposed that Post had previously disseminated information in newsletters to residents regarding a proper use of the "thumbscrews." The newsletters indicated that a proper use of the "thumbscrews" required placing them at a point approximately six inches from the bottom. When Jackson was raped, her "thumbscrews" were placed at a point in compliance with this instruction.

2. Post contends that Jackson was responsible for reporting defects in the window...