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Stelly v. WSE Property Management, LLC

Court of Appeals of Georgia, Second Division

June 20, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.

          RICKMAN, JUDGE.

         In this 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.

         "Summary 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) (2010).

         So 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, [1] 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.

         Six 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]."[2] Mullin died just prior to closing, but his estate, acting through two LLCs and their manager/trustees who live in California, [3] eventually purchased Cambridge Downs; the new owners were aware of the ramp problem.

         In May 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.

         Under 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."

         In 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."

         Nevertheless, 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.

         The 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."[4]

         In 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 ...

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