Osman v. Olde Plantation Apts. on Montreal, No. A04A0813

• Decision Date: 24 November 2004
• Docket Number: No. A04A0813, No. A04A0814.
• Citation: 270 Ga. App. 627,607 S.E.2d 236
• Parties: OSMAN et al. v. OLDE PLANTATION APARTMENTS ON MONTREAL, LLC et al. Olde Plantation Apartments on Montreal, LLC et al. v. Osman et al.
• Court: Georgia Court of Appeals

607 S.E.2d 236

270 Ga. App. 627

OSMAN et al. v. OLDE PLANTATION APARTMENTS ON MONTREAL, LLC et al.

Olde Plantation Apartments on Montreal, LLC et al. v. Osman et al.

Nos. A04A0813, A04A0814.

Court of Appeals of Georgia.

November 24, 2004.

Bruce A. Hagen, Decatur, for appellants.

Bovis, Kyle & Burch, James E. Singer, Wayne A. Morrison, Kristen E. Richbourg, Atlanta, for appellees.

ADAMS, Judge.

Fatuma Ahmed Osman, individually, as the parent and guardian of Dofo Abdi Ali, a minor child, and as administrator of the estate of Farhiya Dakane Nur; Jabuti Abdi Ali; Mohamed Abdi Ali; Hanif Ali; Ayan Ali; and Abdikani Ali asserted negligence claims against Olde Plantation Apartments on Montreal, LLC and HMI Property Solutions, Inc.¹ Olde Plantation and HMI moved for summary judgment and the trial court granted the motion as to all claims, except those asserted by Fatuma Osman, individually. The plaintiffs appeal this grant of summary judgment, and Olde Plantation and HMI cross-appeal the denial of their motion for summary judgment as to Osman's individual claims.

When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence, and we "view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." Brown v. All-Tech Investment Group, 265 Ga.App. 889, 890, 595 S.E.2d 517 (2004). See also Desai v. Silver Dollar City, 229 Ga.App. 160, 163(1), 493 S.E.2d 540 (1997).

The claims in this case arise from a fire that occurred at the Olde Plantation Apartments in DeKalb County. The plaintiffs are a family of refugees, who immigrated from Somalia via Kenya to the United States with the assistance of the World Relief Organization. Plaintiffs moved into Apartment 36D of the Olde Plantation Apartments on or about August 6 or 7, 1999. Apartment 36D is on the second story of a two-story building that contains four rental apartments, with a common foyer/stairwell in the center. The upstairs apartments, Apartments 36C and 36D, shared a common balcony in the rear of the apartment building. The occupants of Apartment 36D had access to the balcony through a sliding door, although there is evidence that only one or two of them had even gone onto the balcony in the week they lived there. Stairs ran from the balcony of Apartment 36C to the ground, and a wooden privacy fence, with a gate, separated the balcony between the two apartments. Thus, the occupants of Apartment 36D were required go through the gate in the privacy fence to reach the stairs. There is no evidence that any of the plaintiffs were aware of the gate or the stairs leading down to the ground prior to the night of the fire. Although there was evidence that the gate had a handle, Osman testified that she was unable to locate a handle on her side of the privacy fence the night of the fire. Plaintiffs base their negligence claims on their contention that the gate was nailed shut, thus preventing them from easily escaping the fire. They further contend that Olde Plantation and HMI knew or should have known of the gate's condition.

Before the plaintiffs moved into Apartment 36D, the unit had been vacant for approximately nine months. Michele Velazquez-Carter, who resided next door in Apartment 36C, began to notice problems with vandalism in the vacant apartment and the balcony area, and on or around April 26, 1999, her apartment was burglarized. Velazquez-Carter complained to Olde Plantation management, and she reported the matter to the police. Velazquez-Carter testified that the next day, the gate in the privacy fence between the two apartments was nailed shut. She concluded that the gate had been nailed shut because, previously, it had not closed properly, but rather stood ajar. When she came home from work that day, she noticed that the gate was completely closed, and she observed nail heads on her side of the fence. Velazquez-Carter never tried to open the gate; she just "jiggled" it to confirm it was secure. Because she worked during the day, Velazquez-Carter was unaware whether any work was done to the balcony, the gate or Apartment 36D between the time she observed that the gate had been nailed shut and the time the plaintiffs moved in. But she testified that she believed that the gate remained nailed shut up through the night of the fire, because she would have noticed something different about the gate if it had been opened or repaired in the interim. She did not, however, try to open the gate the night of the fire.

On July 16, 1999, before the plaintiffs moved into Apartment 36D, the apartment was inspected. A punch list was prepared and subsequently a number of repairs were made. The punch list does not include any reference to the gate or the privacy fence. The only reference to the outside rear of the apartment is a question as to whether the balcony decks and railings were secure. Thus, there is no indication as to whether the gate was checked during this inspection. Further, there is no work order or other evidence indicating that any work was performed on the gate by the apartment management.

The apartment was also inspected on or around July 19, 1999 by the maintenance supervisor for Olde Plantation. This inspection was to ensure that the repairs from the punch list had been performed properly and that the apartment was ready to be leased. The maintenance supervisor testified that he checked the balcony, and although the punch list did not reference the gate in the privacy fence, he stated that he checked it. He said that the gate was working properly and was not nailed shut.

On or before July 30, 1999, construction began on a closet in one of the bedrooms of Apartment 36D. This construction was completed before World Relief was provided a key to the apartment and before the plaintiffs moved in a week or so later. The maintenance supervisor testified that during construction of the closet, workmen brought materials up the back stairs, onto the balcony, through the privacy fence gate and into the apartment through the sliding glass door. The maintenance supervisor, who is responsible for assigning all work done in the apartment complex, testified that he did not instruct anyone to work on the privacy fence gate after his July 19 inspection. Nor did the plaintiffs, or anyone else, complain prior to the fire that the gate was not working properly.

Although the apartment's leasing office generally performed a "move-in" inspection of newly leased apartments in the presence of the new tenants, it did not follow this procedure for World Relief tenants such as the plaintiffs. Rather, this function was delegated to a World Relief caseworker. The record demonstrates, however, that a leasing agent for the apartment filled out a move-in inspection form for Apartment 36D, indicating that the form was provided to the plaintiffs on August 6, 1999. The form references the various rooms and areas of the apartment and contains blocks for the agent to describe the condition of these areas, with handwritten notations. The leasing agent filled out all the blocks on the plaintiffs' form, with the exception of the block referring to the outside of the apartment, which was left blank. Accordingly, there is no indication that the area outside the apartment was included in any move-in inspection.

On August 13, 1999, at approximately 1:00 a.m., an arsonist spread gasoline and intentionally ignited a fire in the common area between the front doors of Apartments 36C and 36D. Osman was asleep in her bedroom at the time and was awakened by shouting. When Osman awoke and saw smoke and fire, she ran straight to the balcony. Osman was unaware that there was a gate in the fence or stairs on the other side, but she "pushed on the wood" of the fence, thinking she could get through. She did not attempt to pull any part of the fence toward her. Osman saw "everybody" jumping from the balcony, and unable to find her way through the fence, she decided to jump, too. As a result, she sustained an injury to her arm, thumb and right leg.

The other seven occupants reacted to the fire as follows:

( 1) Jabuti Ali was the first to jump from the balcony. Prior to the fire, Jabuti had never been on the balcony and did not know that there were stairs leading off the balcony to the ground. When he became aware of the fire, he made his way to the balcony, and "saw everybody." He and the others then jumped off the balcony.

(2) Before the fire, Hanif Ali also was unaware of the gate or the stairs leading from the balcony. When the fire started, he started yelling and went to the balcony. He saw approximately four people standing there,...