MILLER, P. J., RICKMAN and REESE, JJ.
trip-and-fall suit against a property owner and the property
management company, the trial court denied the owner's
motion for summary judgment but granted summary judgment to
the property management company. Nelda Stelly, the plaintiff
below, appeals, arguing that the management company had
sufficient control of the premises to owe her a duty to keep
the premises safe, as well as a duty to warn her about the
unsafe handicap ramp upon which she tripped. For the
following reasons, we reverse.
judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law. We apply a de novo standard of review and view the
evidence in the light most favorable to the non-movant."
(Citations and punctuation omitted.) Lawyers Title Ins.
Corp. v. Griffin, 302 Ga.App. 726, 727 (691 S.E.2d 633)
construed, the evidence shows that in November 2012,
approximately 11 months after moving into a Cambridge Downs
apartment, Stelly, then age 60 and allegedly suffering a
disability,  decided to walk to the mail kiosk at the
apartment complex for the first time, rather than drive. She
walked down the street then onto the sidewalk where a curb
cut/wheelchair ramp allowed handicap access to the sidewalk.
As she approached, Stelly saw the ramp, but after at least
one step up the ramp, she tripped and fell. She does not know
what her foot got caught on, whether she tripped with her
left or right foot, or how many steps she took going up the
ramp before she tripped. The fall damaged Stelly's spinal
cord, and, at the time of her deposition, she could not walk.
No one witnessed Stelly's fall.
years before Stelly's fall, in an effort to purchase the
Cambridge Downs apartment complex, Ronald Mullin hired an
engineering firm to examine the property. The firm concluded,
among other things, that the wheelchair ramp located on the
sidewalk near the mail kiosk was "steeper than
allowed" or "steeper than the allowed 1 in 12
[grade]." Mullin died just prior to closing, but his
estate, acting through two LLCs and their manager/trustees
who live in California,  eventually purchased Cambridge Downs;
the new owners were aware of the ramp problem.
2006, the new owners entered into a written Property
Management Agreement (the "Agreement") with the
predecessor in interest of WSE Property Management LLC
("Worthing"). Worthing drafted the Agreement. At
the time, Worthing was aware of the engineering report,
including the need to correct the grade issue of the handicap
ramp, through direct conversations with the engineer. In
fact, Worthing's former regional service director averred
that he knew the ramp was too steep, and, in his opinion,
"it constitute[d] a trip hazard." The owners and
Worthing sometimes referred to the ramp problem as one of the
"ADA Issues" at the property.
the Agreement, the owners hired Worthing "to manage the
Property on the terms in this Agreement," provide an
on-site property manager, and maintain a "Property
Management Office" on site, open 9 a.m. to 6 p.m. on
weekdays and 1 to 5 p.m. on weekends, for "management
and operation functions pertaining to the Property."
Worthing was also required to prohibit "the use of the
Property for any purpose which might impair any policy of
insurance on the Property . . . or which would be in
violation of any applicable law." The president of
Worthing testified that "the Property Management
Agreement . . . allots to us the authority to hold the
property out for rent, collect rents, and deliver those rents
after the agreement of expenses to the owner, [and] to run
the property in accordance with the annual budget that's
approved by the owner."
addition, the Agreement obligated Worthing to "use
diligent efforts to maintain, at Owner's expense, the
building, appurtenances and grounds of the Property in good
condition and repair in accordance with standards established
by Owner in writing from time-to-time, including interior and
exterior cleaning, painting and decoration, plumbing,
carpentry and such other normal maintenance and repair
work"; "make arrangements for all utilities,
services, equipment and supplies necessary or desirable or
requested by Owner for the management, operation, maintenance
and servicing of the Property"; and take such action as
may be necessary to comply with any and all laws applicable
to the Property."
the Agreement specifically exempted Worthing from the
obligation of performing "any major capital
improvements," and it significantly limited
Worthing's authority to incur expenses. Specifically, the
Agreement provided that Worthing was only authorized to incur
expenses if they were included in a budget approved by the
owner, and for expenses greater than $2, 000, the owner's
specific written authorization was also required:
Approval of a Budget by Owner shall not constitute
authorization for Manager to expend any money except as
specifically set forth herein. Except as specifically
authorized herein, Manager will obtain Owner's specific
written authorization before making any expenditure of
Owner's funds. . . . [T]o the extent set forth in the
most recent Budget approved by Owner, . . . Manager will pay
each and every expense properly incurred in the ordinary
course of managing the Property not in excess of $2, 000 for
any single repair, purchase, or other expense, it being
understood that Manager shall obtain Owner's specific
written authorization prior to paying for any individual item
of expense which exceeds $2, 000.
expenditure authorization provision concludes,
"[n]otwithstanding the foregoing, if emergency action is
necessary to prevent damage to the Property or danger to
persons, Manager may incur such expenses as are reasonable
necessary without the prior written approval of Owner to
protect the Property or persons."
addition, the Agreement provides that Worthing's
"status" under the Agreement "is that of an
independent contractor and not as an agent or employee of
Owner," and that nothing in the agreement "shall
inure to the benefit of any third party." Finally, the
owners expressly retained all rights of ownership:
Nothing in this Agreement shall be deemed to limit
Owner's right to do anything regarding the Property which
an Owner of the Property would otherwise be entitled to do,
including but not limited to the right to enter upon the
Property, to inspect the Property, to perform any repair or
maintenance thereof, and to do ...