PARKE TOWNE NORTH APARTMENTS, LLC et al.
CASTRO et al.
MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
McFadden, Presiding Judge.
appeal is from an order denying a defense motion for summary
judgment in a premises liability action involving a fatal
fall from a landing outside a third-floor apartment. Because
there exist genuine issues of material fact, we affirm.
Facts and procedural posture.
judgment is warranted when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. On appeal from the grant or denial of
summary judgment, we conduct a de novo review, with all
reasonable inferences construed in the light most favorable
to the nonmoving party." Homelife on Glynco, LLC v.
Gateway Center Commercial Assn., 348 Ga.App. 97 (819
S.E.2d 723) (2018) (citations and punctuation omitted).
construed, the evidence shows that Rodrigo Gutierrez, Matilde
Castro, and their daughter lived in a third floor apartment
in the Parke Towne North Apartments in the city of Brookhaven
in DeKalb County. At approximately 10:00 p.m. on Friday May
30, 2014, Gutierrez began drinking beer with some men outside
the front of a first floor apartment. When Castro went to bed
about 10:30 p.m., Gutierrez was still outside. Gutierrez
later came into the bedroom to get a shirt and then left the
apartment. About 6:00 the next morning, Saturday May 31,
2014, a neighbor found Gutierriez lying deceased on the
ground approximately 18 feet below the landing outside the
back door of the apartment.
police were contacted, arrived at the scene a short time
later, and found Gutierrez lying face-down on a concrete
surface with both arms outstretched above his head and a
large pool of blood around his head and shoulders. An officer
found Gutierrez's keys on the third-floor landing near
the back door of the apartment, observed that the railing on
the landing was "shorter than normal," and measured
it at about two-and-a-half feet in height. Based on the
location of the keys, the height of the railing, and the
location of the body, the police determined that it appeared
Gutierrez had accidentally fallen from the third-floor
landing and reported that no foul play appeared to be
involved. The medical examiner who performed the autopsy
found that Gutierrez had a blood alcohol concentration of
.265, that the cause of death was blunt force trauma to his
head, that the investigation information supported the
contention that Gutierrez had fallen from the third floor
landing to the ground below, and that the manner of death was
as the guardian of Gutierrez's child, along with the
administrator of Gutierrez's estate filed a wrongful
death action against Parke Towne North Apartments, LLC and
Title Realty, Inc., the owners and managers of the apartment
complex, alleging that the railing on the landing did not
comply with the 42-inch height requirement of the applicable
building codes and that it was not properly secured to the
building. Parke Towne and Title Realty moved for summary
judgment, arguing that they are not subject to the building
codes, that Gutierrez had equal knowledge of the alleged
hazard, and that there was no evidence of causation. The
trial court denied the motion for summary judgment and
certified its order for immediate review. This court granted
Parke Towne and Title Realty's application for
interlocutory review and this appeal followed.
"Grandfather" status under building codes.
appellants contend that the trial court erred in failing to
grant them summary judgment because the undisputed evidence
establishes that their apartment complex, including the
railing in question, was built in the 1960s before the
applicable building codes were adopted, and therefore it had
"grandfather" status exempting it from the codes in
effect at the time of Gutierrez's fall. The contention is
without merit because there are genuine issues of material
fact about whether the railing created a hazard and thus did
not qualify for grandfather status.
"grandfather clause" is "[a] statutory or
regulatory clause that exempts a class of persons or
transactions because of circumstances existing before the new
rule or regulation takes effect." Black's Law
Dictionary (10th ed. 2014). The grandfather clause at issue
in this case, set forth in the City of Brookhaven Code of
Ordinances Sec. 7-59 (b), provides:
Buildings, structures, plumbing, mechanical and electrical
systems lawfully in existence at the time of the adoption of
the ordinance from which this article is derived shall be
permitted to have their use and maintenance continued if the
use, maintenance or repair is in accordance with the original
design and no hazard to life, health, or property is
created by such building, structure or system.
support of their argument that they have grandfather status
under this clause, the appellants have pointed to testimony
from their expert witness and from a contractor opining that
the property was grandfathered in; they note that they have
never been issued a citation with regard to the railings at
the complex; and they cite to certificates of code compliance
issued before and after the fall. The appellants claim that