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Parke Towne North Apartments, LLC v. Castro

Court of Appeals of Georgia, Fifth Division

March 6, 2019

CASTRO et al.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          McFadden, Presiding Judge.

         This 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.

         1. Facts and procedural posture.

         "Summary 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).

         So 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.

         The 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 accidental.

         Castro, 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.

         2. "Grandfather" status under building codes.

         The 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.

         A "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.

(Emphasis supplied.)

         In 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 appellees ...

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