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Cham v. ECI Management Corp.

Court of Appeals of Georgia, First Division

October 28, 2019

CHAM et al.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Brown, Judge.

         Bintou Cham, individually and as the surviving spouse of Franklin Callens, and Aeysha Harris, individually and as the administrator of the estate of Franklin Callens, (collectively "Plaintiffs") brought this wrongful death action against Cobb Six-Flags Associates, Ltd., and ECI Management Corporation (collectively "Defendants") after Callens was shot and killed in 2015 at an apartment complex owned and managed by Defendants. Following a jury verdict judgment entered in favor of Defendants, Plaintiffs appeal, contending that the trial court committed reversible error when it instructed the jury on the definition of and duty of care owed to a licensee and on assumption of the risk. Plaintiffs also contend that the trial court erred in excluding evidence of Defendants' security expenditures. For the following reasons, we reverse the judgment in favor of Defendants and remand the case with instruction.

         "On appeal, the evidence is construed most strongly to support the verdict and judgment." (Citation and punctuation omitted.) Berryhill v. Daly, 348 Ga.App. 221, 222 (822 S.E.2d 30) (2018). So construed, the evidence presented at trial showed that at the time of his death, Franklin Callens was separated from but still married to Bintou Cham. Callens was living with his girlfriend, Asia Jones, in an apartment at Concepts 21 Six-Flags ("the Complex"). Cobb Six-Flags Associates, Ltd. owns the Complex while ECI Management Corporation manages the Complex. Callens was not a party to the lease, and Jones did not list him as an occupant on the rental application. However, Callens toured the apartment with Jones and was present when she signed the lease in 2014. Jones also testified that she informed the Complex's assistant manager before she signed the lease that Callens would be living there. Jones testified that this was mentioned several times, and the assistant manager responded that it was "okay" for Callens to live in the apartment as long as Jones paid the rent.[1] A prior manager for the Complex testified that Defendants' policy required all people over the age of 18 living in the apartment to be listed on the lease.

         The parties do not dispute that the area surrounding the apartment complex was experiencing a high level of crime in the years leading up to Callens' death. Evidence presented at trial showed that from August 2012 to the date of Callens' murder in December 2015, multiple burglaries, armed robberies, fights, three carjackings, and one sexual assault occurred at the Complex. The Complex manager at the time of Callens' death testified that random gunshots were a "regular occurrence." Jones testified that while she was unaware of most of the crime occurring in the Complex, she did witness a man being robbed at gunpoint outside of her apartment sometime in the summer of 2015.

         Until 2013, Defendants used a private contract security force to patrol the Complex. In response to the increased crime, Defendants retained off-duty Cobb County police officers to patrol the Complex at various times, beginning in May 2013. The Complex did not have video cameras, gates, controlled access, or a courtesy officer.

         On the morning of December 13, 2015, Callens left the apartment to go to work. As Callens approached his car in the Complex's parking lot, two males accosted him at gunpoint and stole his car, laptop, and firearm.[2] Callens died of a gunshot wound on the scene.

         1. Jury Instructions. Plaintiffs contend that the trial court erred by instructing the jury on the standard of care owed by an owner of premises to a licensee and on the affirmative defense of assumption of the risk. "A [jury] charge on a given subject is justified if there is even slight evidence from which a jury could infer a conclusion regarding that subject." (Citations omitted.) Almassud v. Mezquital, 345 Ga.App. 456, 458 (1) (811 S.E.2d 110) (2018). However, the "charge must be adjusted to the evidence, apt, and a correct statement of the applicable law." (Citation and punctuation omitted.) Monitronics Intl. v. Veasley, 323 Ga.App. 126, 138 (4) (746 S.E.2d 793) (2013). Appellate review of a jury charge is a legal question, and we apply the "plain legal error" standard of review. Boston Men's Health Ctr. v. Howard, 311 Ga.App. 217, 221 (1) (715 S.E.2d 704) (2011). We thus owe no deference to the trial court's ruling. Id.

         (a) Duty owed to licensee. Plaintiffs contend that the trial court erred by instructing the jury on the definition of and duty owed to a licensee because the evidence presented at trial supports the theory that Callens was either an invitee or a trespasser, but not a licensee.[3] According to Plaintiffs, if Defendants impliedly consented to Callens living in the apartment, he would be an invitee; but if Callens was living in the apartment without Defendants' permission and in violation of the lease, Callens was a trespasser.

The legal duty of care owed by a landowner to a person coming upon the property varies and is fixed according to the legal status of the person entering the premises. A landowner owes the highest duty - the duty of ordinary care - to an invitee. OCGA § 51-3-1[.] A landowner owes a lesser duty - to avoid causing wilful or wanton injury - to a licensee. OCGA § 51-3-2 (b)[.]

         (Citations omitted.) Freeman v. Eichholz, 308 Ga.App. 18, 20 (1) (705 S.E.2d 919) (2011). "An invitee is one who, by express or implied invitation, has been induced or led to come upon premises for any lawful purpose; he may be deemed an invitee if his presence on the property is of mutual benefit to him and the owner or occupier." (Citations omitted.) McGarity v. Hart Elec. Membership, 307 Ga.App. 739, 742 (706 S.E.2d 676) (2011). Pursuant to OCGA § 51-3-2 (a), "a licensee is a person who (1) [i]s neither a customer, a servant, nor a trespasser; (2) [d]oes not stand in any contractual relation with the owner of the premises; and (3) [i]s permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification."

[W]hether a person is an invitee or a licensee depends upon the nature of his relation or contact with the owner (or tenant) of the premises. If the relation solely benefits the person injured, he is at most a licensee.
If, on the other hand, the relation was of mutual interest to the parties, he is an invitee.

Chatham v. Larkins, 134 Ga.App. 856, 857 (2) (216 S.E.2d 677) (1975). See also Freeman, 308 Ga.App. at 21-22 (1) (test to determine whether one is an invitee or a licensee is whether a "mutuality of benefit" exists between the owner/occupier and the party coming onto the premises). "Georgia has adopted the rule that a social guest is not an invitee but is a licensee." (Citation and punctuation omitted.) Thompson v. Oursler, 318 Ga.App. 377, 378 (733 S.E.2d 359) (2012). Accordingly, "a landlord is liable to one injured while visiting a tenant for his (the visitor's) own personal advantage only for wilful or wanton injury to the visitor, a licensee." (Citations omitted.) Brown v. Clay, 166 Ga.App. 694, 695 (305 S.E.2d 367) (1983).

         In Brown, supra, we held that the plaintiff, who was living with a friend in the friend's rented room, was a licensee. 166 Ga.App. at 695. The friend allowed the plaintiff to stay in his room as a favor to the plaintiff. Id. The landlord was unaware of the arrangement and did not allow tenants to have overnight guests. Id. The plaintiff testified that he had given the friend money each week to help with rent, a fact the friend disputed. Id. This Court concluded that the primary purpose of the plaintiff's stay was for his own convenience and benefit and that the plaintiff's voluntary payment of some rent to the tenant was merely incidental to this purpose. Id. at 696.

         In the instant case, there was evidence to support a finding that Callens was a licensee. As explained above, if the primary purpose of Callens' presence on the property was of "mutual benefit to the tenant and guest," Callens' legal status would be that of an invitee. See Brown, 166 Ga.App. at 695. Jones testified that Callens paid rent in exchange for living in the apartment, arguably a mutual benefit to Jones and Callens. However, the jury was not required to credit this testimony. Indeed, some evidence presented at trial suggested that Callens was living in the apartment without permission. But, even if Callens was living in the apartment without Defendants' permission and in violation of the lease, Callens could still be considered a social guest of Jones, the authorized tenant; and therefore permitted on the premises by the tenant for his "own interests, convenience, or gratification" and without any contractual relation to Jones or Defendants. See Brown v. Dickerson, 350 Ga.App. 137 (828 S.E.2d 376) (2019) (rule in Georgia is that social guest is a licensee not an invitee); Thompson, 318 Ga.App. at 378 (same). But see Chatham, 134 Ga.App. at 858 (2) (noting that legal status of social guest is licensee, but concluding that plaintiff bringing food to a tenant in an apartment complex at the tenant's request could be considered an invitee because a jury could find the requisite mutuality of interest between the tenant and the visitor). For these reasons, the trial court did not err in charging the jury on the duty owed to a licensee in addition to the duty owed to an invitee and trespasser, and allowing the jury to resolve Callens' legal status. See Rubio v. Davis, 231 Ga.App. 425, 428 (3) (500 S.E.2d 367) (1998).

         (b) Assumption of the risk. Plaintiffs argue that the trial court erred in charging the jury on assumption of the risk. In Georgia,

[t]he affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.

         (Citation omitted.) Teems v. Bates, 300 Ga.App. 70, 72-73 (1) (684 S.E.2d 662) (2009). As we have previously explained,

[t]he knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

         (Citation omitted.) Saulsbury v. Wilson, 348 Ga.App. 557, 559-560 (1) (823 S.E.2d 867) (2019). "Knowledge of the risk is the watchword of assumption of the risk, and means both actual and subjective knowledge on the plaintiff's part." Fuller v. McCormick, 340 Ga.App. 636, 639 (1) (a) (i) (798 S.E.2d 280) (2017). "[T]he extent to which a plaintiff assumes the risk of injury caused by another's action or inaction depends upon the extent to which the plaintiff subjectively comprehended the specific hazard posed, and affirmatively or impliedly assumed the risk of harm that could be inflicted therefrom." Muldovan v. McEachern, 271 Ga. 805, 808 (2) (523 S.E.2d 566) (1999).

         Defendants argue that a charge on assumption of the risk was authorized because Callens was aware of the ongoing crime at the Complex, including the incident in which a resident was robbed at gunpoint outside of Jones' apartment, and chose to remain at the Complex. However, knowledge of some vague possibility of criminal activity is insufficient. See, e.g., Saulsbury, 348 Ga.App. at 559 ("[t]he knowledge requirement does not refer to a comprehension of general, non-specific risks"); Findley v. Griffin, 292 Ga.App. 807, 809 (666 S.E.2d 79) (2008). In order for Callens to have assumed the risk in the instant case, there must be evidence that Callens had specific knowledge of the presence of the two armed men outside his apartment, but nonetheless made the conscious decision to proceed outside to his car. See Monitronics, 323 Ga.App. at 139-140 (4) ("a charge on assumption of the risk would have been ...

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