The Landings Ass'n Inc. v. Williams the Landings Club Inc. v. Williams

• Decision Date: 17 October 2011
• Docket Number: A10A1956.,Nos. A10A1955,s. A10A1955
• Citation: 711 S.E.2d 294,309 Ga.App. 321
• Parties: The LANDINGS ASSOCIATION, INC.v.WILLIAMS et al.The Landings Club, Inc.v.Williams et al.
• Court: Georgia Court of Appeals

309 Ga.App. 321

711 S.E.2d 294

11 FCDR 1193

The LANDINGS ASSOCIATION, INC.

v.WILLIAMS et al.The Landings Club, Inc.

v.Williams et al.

Nos. A10A1955

A10A1956.

Court of Appeals of Georgia.

March 25, 2011.Reconsideration Denied April 14, 2011.Certiorari Granted Oct. 17, 2011.

Barrow & Ballew, Walter Wynne Ballew III, Travis D. Windsor, Savannah, for The Landings Association, Inc.Savage & Turner, Robert B. Turner, C. Dorian Britt, Savannah, David M. Conner, Daniel B. Snipes, Statesboro, Marion T. Pope, Jr., for Williams et al.Forbes, Foster & Pool, Morton G. Forbes, Savannah, Johnny Andrew Foster, for The Landings Club, Inc.ELLINGTON, Chief Judge.

In this action, the estate and heirs of Gwyneth Williams (collectively, “the appellees”) seek to recover damages from the owners of a lagoon where Williams was allegedly killed by a large alligator. The State Court of Chatham County denied in part the motion for summary judgment filed by the joint owners of the lagoon, The Landings Association, Inc. (“the association”) and The Landings Club, Inc. (“the club”).¹ We granted the applications filed by the association and the club (collectively, “the owners”) for an interlocutory appeal from that ruling. We have consolidated the association's appeal, Case No. A10A1955, and the club's appeal, Case No. A10A1956, for disposition.

The owners contend that they are entitled to judgment as a matter of law under both premises liability and nuisance theories of recovery. In addition, the owners contend that, under the doctrine of animals ferae naturae, a landowner is not responsible for any harm caused by a free wild animal on the owner's land. For the reasons explained below, we affirm in part and reverse in part.

In order to prevail on a motion for summary judgment under OCGA § 9–11–56,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470, 629 S.E.2d 204 (2006).

Viewed in the light most favorable to the appellees, the record shows the following. On the morning of October 6, 2007, Williams' body was found floating in a lagoon that lay about 100 yards from the home of Susan and Bill Norton, Williams' daughter and son-in-law, at The Landings, a residential community on Skidaway Island, where Williams, who was 83 years old, had been housesitting. The medical examiner determined that an alligator had bitten off her right foot, her hands and her forearms, causing Williams to bleed to death within minutes.² Jack Douglas, an alligator trapper licensed by the Georgia Department of Natural Resources (“DNR”), searched the lagoon and trapped and killed an alligator that was over eight feet long and weighed 130 pounds. Parts of Williams' body were still inside the alligator's stomach.

Williams was last seen alive when she spoke with a neighbor at approximately 6:00 on the night before her body was found in the lagoon. Three teenaged boys heard a woman crying for help as they drove a golf cart on a path along the golf course at approximately 9:00 that night.

The man-made lagoon where Williams' body was found, known as Lagoon 15, was bordered on one side by a park-like common area owned by the association and on the other side by the golf course, which is owned and operated by the club. The association and the club jointly own the lagoon, which is part of an interconnected complex of approximately 150 lagoons on The Landings' 4,500–acre community. The property's previous owner, Union Camp Corporation, began building the lagoons in the 1970s for drainage so that the low-lying property could be developed, and The Landings' developer added more lagoons. The association stocks the freshwater lagoons with fish for sport fishing.

The lagoon complex connects to wild marshland on Skidaway Island. Alligators, which are wild and indigenous to coastal Georgia, travel freely on and off the island, between the marsh and The Landings' lagoon system, and between lagoons. The owners were aware that alligators were common in every lagoon and sometimes came onto the banks and golf courses.

Alligators normally feed on small animals, such as fish, snakes, frogs, and turtles, in the water or within a few feet of the water's edge. Alligators ordinarily avoid humans, and attacks on humans are very rare but may occur when alligators lose their fear of people as a result of people throwing food to them, when they are foraging at night, and when they are nesting and protecting their young. Alligators begin nesting when they are about six feet long and reach their sexual maturity. Most attacks on humans that result in a serious injury or fatality are by alligators over eight feet long. Before Williams' death, there had never been an alligator attack on a human at The Landings.

The association has a policy of arranging to have the trapper remove any alligator that is over seven feet long, to prevent them from nesting near residential areas, as well as any alligator that shows aggression toward people or pets. Although the association regularly inspects and maintains the vegetation in The Landings' lagoons (whether owned by the association, the club, or both), it does not patrol or inspect the lagoons for alligators. Instead, the association calls for the trapper to remove an alligator whenever a resident or employee reports seeing a large or aggressive alligator. In the four months preceding Williams' death, the association called for the trapper to remove at least eleven alligators that were over seven feet long, in addition to several others that were nearly that size. Just one month before Williams' death, the trapper removed an alligator that was over ten feet long and weighed nearly 300 pounds.

At least annually, in its resident directory or another publication, the association warns residents that alligators live on the property and that alligators that are fed by people and female alligators that are guarding their young can be extremely dangerous to people and pets. In the same way, the association advises residents of its policy of removing large alligators. Neither the association nor the club posts signs at the lagoons to warn visitors that alligators may be present in or near the lagoons. There is no competent evidence in the record that Williams knew there might be alligators longer than seven feet long at The Landings, or that Williams knew that there were alligators of any size in Lagoon 15, although there was evidence that on two or possibly three occasions she had seen an alligator near the road.³

In their complaint, the appellees claimed that the owners are liable for Williams' pain and suffering and wrongful death under theories of premises liability and nuisance. The appellees alleged that the owners were negligent in several ways, including in knowingly creating and maintaining an ideal habitat for alligators in close proximity to The Landings' residential and recreational areas and, having created such a habitat, in failing to take reasonable steps to protect residents and visitors from alligator attacks. The appellees also asserted a claim under OCGA § 51–2–7, which provides that “[a] person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.” The trial court determined that neither the club nor the association was the owner or keeper of the alligator as a matter of law and, therefore, granted summary judgment in favor of the owners as to the appellees' claim under OCGA § 51–2–7.⁴ The trial court denied the motions for summary judgment filed by the owners on the appellees' remaining claims.

1. The owners contend that, because alligator attacks on humans are rare and because there had been no prior alligator attacks on any human at The Landings, there is no evidence from which a jury could find that the alleged attack on Williams was foreseeable. In the alternative, the owners contend that, to the extent that they could have reasonably anticipated the attack because they knew alligators were in The Landings' lagoons, their knowledge of the risk was not superior to that of Williams, who also knew that there were alligators in the lagoons. In addition, the owners contend that, because there is no evidence regarding how long the particular alligator that attacked Williams had been in Lagoon 15, there is no evidence from which the jury could find that they could have prevented the attack by inspecting the lagoons and removing large alligators.

Under Georgia law, an owner or occupier of land is liable to its invitees “for injuries caused by [its] failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51–3–1.⁵ An owner's obligation to keep the premises safe “includes a duty to inspect the premises to discover possible dangerous conditions of which [it] does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.” (Citation and punctuation omitted.) Thomas v. Home Depot U.S.A., 284 Ga.App. 699, 700, 644 S.E.2d 538 (2007). Still, the owner's duty to exercise ordinary care “is not a duty to absolutely prevent injury as a proprietor is not an [e]nsurer of the safety of its customers.” (Citation omitted.) Id. “The true ground of liability is the proprietor's superior knowledge...