CHAM et al.
ECI MANAGEMENT CORPORATION et al.
BARNES, P. J., MERCIER and BROWN, JJ.
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.
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. 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.
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.
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.
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. Callens died of a
gunshot wound on the scene.
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.
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. 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
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)[.]
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,
[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).
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.
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).
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
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.
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)
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