Travelers Ins. Co. v. Linn

• Citation: 235 Ga. App. 641,510 S.E.2d 139
• Decision Date: 04 December 1998
• Docket Number: No. A98A1319.,A98A1319.
• Parties: TRAVELERS INSURANCE COMPANY et al. v. LINN
• Court: Georgia Court of Appeals

510 S.E.2d 139

235 Ga. App. 641

TRAVELERS INSURANCE COMPANY et al. v. LINN

No. A98A1319.

Court of Appeals of Georgia.

December 4, 1998.

Cozen & O'Connor, David M. Bessho, Atlanta, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Edward A. Miller, Samuel R. Arden, Atlanta, for appellee.

RUFFIN, Judge.

Travelers Insurance Company (Travelers) and Windsor at River Heights Limited Partnership (Windsor) sued Adrienne Linn and others for damages sustained when Linn's apartment was damaged in a fire. The trial court granted Linn's motion for summary judgment, and plaintiffs appeal. For reasons discussed below, we affirm.

"Summary judgment is appropriate when the court, viewing all evidence and drawing all inferences in a light most favorable for the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). `A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the 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. OCGA § 9-11-56(e).' Id." Heinsimer v. Wellington Leisure Products, 231 Ga.App. 579, 581-582, 500 S.E.2d 7 (1998).

The record shows that Linn leased an apartment at a complex owned by Windsor. Mary and Irving Walker also lived at the apartment with their three children. Although Linn was the sole lessee, Mary and Irving Walker were identified in the lease as "occupants other than lessee." Sometime before midnight on December 23, 1995, the Walkers' 15-year-old child, Lee Walker, started a fire in Linn's fireplace. At the time, Linn and Mary Walker were in the kitchen. One of the other children told Mary Walker that Lee had started a fire, and Mary told Lee to extinguish the fire. Mary called to her husband, who was in the shower, and he also told Lee to extinguish the fire.

Lee extinguished the fire with a bottle of water, cleaned the fireplace, and put the ashes into a cardboard box, which he set on the wooden deck outside the apartment. He also placed the burned logs outside with the remainder of the firewood. Neither Mary Walker nor Linn saw the child place the logs or ashes outside. Later that night, Linn and the Walkers awoke to find the apartment on fire. The fire completely destroyed Linn's apartment and caused severe damage to the remainder of the building. The fire department investigator later determined that the fireplace debris placed on the deck was the likely source of the fire.

After the fire, Linn and the Walkers moved into a new apartment in the complex. On December 27, 1995, Linn signed a new lease for this second apartment, and her security deposit was transferred to the new apartment. On April 11, 1996, when this second lease expired, Windsor returned Linn's security deposit, less certain amounts for damage to the second apartment as well as for some outstanding rent.

On March 15, 1996, Travelers' attorney sent Linn a letter stating that she was liable for over $800,000 in damage to the original apartment building as a result of the fire. On December 19, 1996, Travelers filed suit against Linn and the Walkers for damage to the original apartment building. Windsor was subsequently added as an additional plaintiff. On November 25, 1997, the trial court granted Linn's motion for summary judgment, leaving the claims against the Walkers outstanding. The trial court's order did not indicate the basis for granting summary judgment.

1. Security Deposit Statute. Linn contends that plaintiffs are precluded from asserting any claims relating to the fire damage because Windsor failed to comply with its obligations under the security deposit statute, OCGA § 44-7-30 et seq. Because Windsor never withheld Linn's security deposit due to the damage to the first apartment, we disagree.

OCGA § 44-7-33(b) provides that "[w]ithin three business days after the date of the termination of occupancy, the landlord or his agent shall inspect the premises and compile a comprehensive list of any damage done to the premises which is the basis for any charge against the security deposit and the estimated dollar value of such damage." (Emphasis supplied.) OCGA § 44-7-34(a) states that "[i]n the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention thereof." (Emphasis supplied.) OCGA § 44-7-35(b) provides that "[t]he failure of a landlord to provide each of the written statements within the time periods specified in Code Sections 44-7-33 and 44-7-34 shall work a forfeiture of all his rights to withhold any portion of the security deposit or to bring an action against the tenant for damages to the premises."

It is undisputed that plaintiffs did not provide Linn with a list of damages to the first apartment within three days of the termination of the lease on such apartment. The first written notice to Linn regarding the fire damage was the March 15, 1996 letter from plaintiffs' counsel notifying her that she was responsible for over $800,000 in damages. Linn argues that because plaintiffs did not give her the written statements required by OCGA §§ 44-7-33 and 44-7-34, plaintiffs have forfeited their right to sue her for damages to the property. However, because plaintiffs did not retain Linn's security deposit to cover the damages caused by the fire, they were never obligated to provide her with any of the written statements listed in the statutes. OCGA § 44-7-33(b) requires the landlord to provide the tenant with a list of any damage "which is the basis for any charge against the security deposit." Because the damage to the apartment did not form the basis for any charge against Linn's security deposit, no such list could have been provided. Similarly, OCGA § 44-7-34(a) requires the landlord to provide the tenant with a written statement "listing the exact reasons for the retention [of the security deposit]." Since there was no retention of the security deposit in this case, plaintiffs had no obligation to provide, and indeed could not have provided, a statement giving the reasons for retention.

"[T]he intent of [the security deposit] legislation is only to prevent the wrongful withholding of security deposits from tenants by landlords." Kimber v. Towne Hills Dev. Co., 156 Ga.App. 401, 402(3), 274 S.E.2d 620 (1980). Where, as here, the landlord does not withhold a security deposit, but instead proceeds against the tenant solely by means of a civil lawsuit, the fundamental purpose of the statute is fulfilled. The forfeiture provisions of OCGA § 44-7-35 are clearly designed to further this purpose—i.e., to ensure that landlords do not wrongfully withhold security deposits—and are not designed merely to place additional procedural hurdles in the path of a landlord seeking to recover damages due to a tenant's negligence.

Moreover, "forfeitures and penalties are not favored and statutes relating to them must be strictly construed, and in a manner as favorable to the person against whom the forfeiture or penalty would be exacted as is consistent with fair principles of interpretation." Moore v. Beneficial Finance Co. of Ga., 158 Ga.App. 535, 537(1), 281 S.E.2d 293 (1981). Construed in such a manner, OCGA § 44-7-35(b) works a forfeiture only when the landlord fails to provide written statements that it is required to provide under OCGA §§ 44-7-33 and 44-7-34. Where the landlord does not retain a security deposit and is therefore not required to provide such written statements to the tenant, its failure to do so cannot work a forfeiture under OCGA § 44-7-35(b).

2. Negligence. Plaintiffs contend that Linn was negligent in failing to ensure that the fireplace ashes were disposed of properly. They assert that Linn is responsible for Lee Walker's actions because she was acting in loco parentis at the time of the fire and thus had a duty to supervise Lee's actions. However, the evidence clearly shows that Lee was under the direct supervision of his parents, Mary and Irving Walker, when he cleaned the fireplace and placed the logs and ashes on the deck and was acting pursuant to their instructions. Because Linn had no duty as a parent to supervise Lee's actions, she cannot be held liable under this theory. See Batchelor v. Brown, 226 Ga. App. 113, 486 S.E.2d 53 (1997).

Moreover, there is no evidence that Linn was negligent in supervising Lee's disposal of the ashes. As mentioned above, Lee's parents were present in the apartment when Lee started the fire, and it was pursuant to their instructions that he extinguished it. There is nothing in the record to show that Linn could not reasonably rely on the Walkers to supervise their own 15-year-old child in such a situation. Indeed, the apartment's own rules and regulations, incorporated into the lease, state that "[a]ll parents shall be held responsible for their own children's actions and see that they, too, abide by the Community Rules and Regulations." Nothing in the record indicates that Linn should have foreseen that Lee would not merely extinguish the fire, but would place the ashes on the deck. Accordingly, there is no evidence that Linn acted unreasonably, and the trial court properly granted summary judgment to Linn on plaintiffs' negligence claims.

3. Breach of contract. Plaintiffs contend that "[t]he trial court erred in finding no triable issues regarding Linn's breach of contract." In their brief, plaintiffs clarify and limit the scope of this enumeration to the...