Mason v. Chateau Communities, Inc.

Andrews, Presiding Judge,

concurring in part and dissenting in part.

I concur to the extent the majority reverses the grant of summary judgment in favor of Terry Lee Goolsby, who was identified by Helen Marie Mason as the man who raped her. I respectfully dissent to the majority’s reversal of the grant of summary judgment in favor of Chateau Communities, Inc. (Chateau). Mason was raped inside the mobile home she owned, controlled and occupied as her residence after the rapist broke into the mobile home through a locked door. Mason’s complaint alleges that Chateau is liable to her for the rape inside her mobile home because Chateau breached a duty owed to her to keep its premises safe from reasonably foreseeable criminal attacks. On appeal from the grant of summary judgment to Chateau, Mason states that the controlling issue is the “duty on the part of [Chateau] owed to [her] as an invitee” and argues that Chateau breached a duty owed to her under OCGA § 51-3-1 to keep its premises safe. Even though Mason’s mobile home was located within the premises of a Chateau-managed mobile home community, the trial court correctly granted summary judgment in favor of Chateau on the basis that Chateau had no duty under OCGA § 51-3-1 to prevent the unlawful entry into and rape inside of the mobile home premises owned and controlled by Mason.

To prevail on a motion for summary judgment [under OCGA § 9-11-56 (c)], the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. The moving party may carry this burden either by (1) presenting *115evidence negating an essential element of the nonmoving party’s claim, i.e., affirmatively disproving the element with evidence which makes it impossible for the nonmoving party to prove the element at trial; or (2) demonstrating an absence of evidence to support an essential element of the nonmoving party’s claim. If the moving party discharges . this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. On appeal, we review de novo the trial court’s ruling on a motion for summary judgment, construing all facts and reasonable inferences therefrom in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Parks v. Multimedia Technologies, 239 Ga. App. 282, 286-287 (520 SE2d 517) (1999); Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991). Applying these principles, the record supports the trial court’s grant of summary judgment in favor of Chateau.

Mason owned the mobile home which she used as her residence, and she rented the lot on which it was located in the Smokecreek Manufactured Home Community (Smokecreek). When Mason rented the lot, Smokecreek was owned by CWS, LLP and managed by Chateau as a mobile home community of about 264 resident-owned mobile homes located on lots rented to the residents by Chateau as the agent of CWS. In her complaint against Chateau, Mason alleged that a man she later identified as Goolsby broke into her mobile home while she was asleep at about 4:00 a.m. and assaulted and raped her. Mason testified by deposition that the doors and windows on her mobile home were closed and locked on the night of the attack. She said that police thought the rapist gained entry through the back door, but she believed that he broke in through the front door because the front door was damaged. Mason got a good look at the man’s face during the attack but said she had never seen him before. Mason later identified Goolsby as the rapist from a police lineup and learned for the first time that Goolsby lived in a mobile home across the street from her at Smokecreek. In her complaint, Mason alleged that Chateau operated and controlled the premises at Smokecreek and had a duty to keep the premises safe. She alleged that prior criminal acts on the premises made the assault and rape against her foreseeable, and that Chateau “breached its duty to keep their premises safe from reasonably foreseeable, unlawful acts of third parties on their premises” by failing “to correct the circumstances or to take appropriate measures to reduce exposure to reasonably foreseeable crimes and acts of violence.”

*116Under restrictive covenants applying to Smokecreek, all residents renting lots for mobile homes were required to own the mobile homes. Chateau’s lot rental agreement with Mason shows that Mason paid $353 per month for possession of the lot along with water, sewer and garbage service provided by Chateau, and that Chateau, as lessor of the lot, reserved a right of access for inspection, maintenance, and emergencies. The lot rental agreement provided that residents were responsible for keeping the lot clean including mowing and all yard work. The rental agreement made clear that residents were responsible for making all necessary repairs to the rented lot and to the resident-owned mobile home located on the lot, and that Chateau was responsible for maintaining “common areas and underground utilities.” Neither the rental agreement nor the covenants contained any provision for Chateau to provide security services related to the lot or the mobile home. Mason testified that there was no provision for or assurances of security in the Smokecreek lease or covenants and that, when she moved into Smokecreek, the Chateau manager “didn’t mention any kind of security measures.” Mason said she remembered that it seemed to be a safe place for children because there were a lot of them walking around, and that the Chateau manager said it was “very safe,” that they had “no problems,” and that it was so safe people left their windows and doors open. Nevertheless, Mason was aware prior to her own rape that another resident had been attacked on one occasion and raped on another occasion at Smokecreek. She was also aware that security at her mobile home was her responsibility. Mason had an electronic security system in her mobile home, but it was broken and she did not get it repaired before the rape. She purchased motion detector lights for her mobile home prior to the rape, but she never got around to having them installed. She was aware that Smokecreek residents had formed a neighborhood watch group to provide for their own security, but she did not join the group because she did not have time because of her work. Mason complained to the Chateau manager that she thought they needed to provide more security, and the manager suggested that she join the neighborhood watch group.

In moving for summary judgment, Chateau asserted that it was not liable for the rape pursuant to the duty imposed on it under OCGA § 51-3-1 to keep its premises safe because the rape occurred inside Mason’s mobile home, a premises owned and controlled by Mason. Under OCGA§ 51-3-1,

[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such *117persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

Apremises liability claim under OCGA§ 51-3-1 sounds in negligence. Johnson v. Allen, 272 Ga. App. 861, 868 (613 SE2d 657) (2005); Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 268 Ga. 604 (492 SE2d 865) (1997). The threshold issue in a negligence cause of action is whether the defendant owes the plaintiff a duty of care, and whether such a duty of care exists is a question of law. City of Rome v. Jordan, 263 Ga. 26, 27 (426 SE2d 861) (1993); Bradley Center, Inc. v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Generally, “there is no duty to control the conduct of third persons to prevent them from causing physical harm to others.” Id. at 201. Under OCGA § 51-3-1, however, an owner or occupier of a premises may be held liable for failure to exercise ordinary care to protect invitees on the premises from the criminal attacks of third persons if those attacks are foreseeable. Doe, 268 Ga. at 605. “Georgia decisions considering the liability of property owners [under OCGA § 51-3-1] for criminal acts by third parties uniformly limit their discussions to the claims of invitees.” Barnes v. St. Stephen’s Missionary Baptist Church, 260 Ga. App. 765, 767 (580 SE2d 587) (2003). Moreover, the duty set forth in OCGA § 51-3-1 for owners or occupiers of a premises to protect invitees from foreseeable criminal attacks arises from the owner’s or occupier’s control over the premises. Id.

The lot rental agreement and the restrictive covenants show that Chateau retained a qualified right of possession and control over the common areas in Smokecreek which Chateau invited the residents to use, such as the streets, designated storage area, clubhouse, swimming pool, exercise room, and laundry facilities. This control over the common areas imposed a duty on Chateau under OCGA § 51-3-1 to protect invitees in those areas. Maloof v. Blackmon, 105 Ga. App. 207, 208 (124 SE2d 441) (1962); Godwin v. Olshan, 161 Ga. App. 35, 36 (288 SE2d 850) (1982). Conversely, the lot rental agreement shows that Mason took exclusive possession and control over the lot she rented from Chateau for the location of her mobile home. Because Chateau fully parted with possession of the rented lot, it had no control over the lot and no duty under OCGA § 51-3-1 to protect Mason on the lot. Plott v. Cloer, 219 Ga. App. 130, 131 (464 SE2d 39) (1995); Stephens v. Clairmont Center, 230 Ga. App. 793, 794-795 (498 SE2d 307) (1998); Godwin, 161 Ga. App. at 36; Maloof, 105 Ga. App. at 208. The fact that Chateau retained a right of access to the rented lot for inspection, maintenance, and emergencies is not evidence of control over the lot sufficient to impose a duty on Chateau pursuant toOCGA§ 51-3-1. Godwin, 161 Ga. App. at 36. Mason owned and had exclusive possession and control of the mobile home she placed on the *118lot, so she could not be Chateau’s invitee under OCGA§ 51-3-1 in her own mobile home. It follows that Chateau had no control of the mobile home, that Chateau was not an owner or occupier of the mobile home, and therefore Chateau had no duty under OCGA § 51-3-1 to protect Mason in the mobile home. See Plott, 219 Ga. App. at 131.

In response to Chateau’s motion for summary judgment and on appeal from the grant of summary judgment, Mason argued that Chateau owed her a duty under OCGA § 51-3-1 to protect her as an invitee on the premises. Mason does not take issue with the principle that Chateau had no duty under OCGA § 51-3-1 with respect to premises over which it had no control. Rather, Mason argues that Chateau had control over her mobile home sufficient to impose a duty to protect her as an invitee under OCGA§ 51-3-1 because the Smokecreek restrictive covenants “are demonstrative of the control [Chateau] has over the entire mobile home park.” There is no basis for construing the Smokecreek restrictive covenants as giving Chateau the type of control that would impose a duty under OCGA § 51-3-1 to protect Mason as an invitee in her mobile home or on the rented lot. Some restrictive covenants required residents to own their mobile homes and set forth rules with respect to the size, alterations to, and maintenance of mobile homes. Other restrictions dealt with matters such as the distinction between residents and guests, use of common area facilities by guests, pets, fences, signs, guns in the community, alcoholic beverages in the common areas, traffic and vehicles, parking, general use of the common area facilities, and management-related access to home sites. None of the restrictive covenants gave Chateau the right to exercise possession and control over Mason’s mobile home or the rented lot sufficient to impose a duty under OCGA § 51-3-1. See Ray v. Smith, 259 Ga. App. 749-751 (577 SE2d 807) (2003); Ladson Investments v. Bagent, 151 Ga. App. 24-25 (258 SE2d 718) (1979). Because Chateau owed no duty to Mason under OCGA § 51-3-1 to protect her from the rape in her mobile home, an essential element necessary to Mason’s claim was absent, and the trial court properly granted summary judgment in favor of Chateau. Lau’s Corp., 261 Ga. at 491, 495.

Apart from her claim under OCGA § 51-3-1, Mason also contends that, in its internal rules and by its representations to residents, Chateau assumed a duty to provide security in the entire Smokecreek community, including the areas under her control. Mason points to evidence that the Chateau manager told her that Smokecreek was safe, and that at least one other resident said the manager told him there was a security officer patrolling during the day and night, but he never saw security. Mason points out that the restrictive covenants she signed when she moved to Smokecreek stated that Chateau would take all reasonable means “to insure that your residency *119is pleasant and enjoyable,” and that residents knew from their applications for residency that Chateau could do a criminal background check. As to Chateau internal documents, Mason shows that the Chateau Operations Manual and Risk Management and Safety Manual state in general that Chateau had a goal of providing its employees and residents with a safe, helpful work and residential environment. Letters from the Chateau president and chief operating officer which accompanied the Safety Manual further stated that Chateau was committed to the safety of its employees, residents, and guests; that safety is one of the highest priorities at Chateau communities; that safety is part of everyone’s job; that safety awareness is the key to success, and that Chateau was instituting a risk and safety committee.

A landowner does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required. If a defendant undertakes to do more for the benefit of another person than the law requires, he or she may be held liable if he or she acts unreasonably or makes the situation worse, by increasing the danger, or by misleading the plaintiff into belief that it has been removed, or by depriving the plaintiff of the possibility of help from other sources.

(Citation and punctuation omitted.) Doe v. HGI Realty, 254 Ga. App. 181, 182-183 (561 SE2d 450) (2002). There is no basis for concluding that any of the above general oral representations, or written statements in the restrictive covenants, residency application, or Chateau Operations Manual and Risk Management and Safety Manual constituted an undertaking or contractual assumption by Chateau to provide security for the inside of Mason’s mobile home where the rape occurred, for the exterior door of the home through which the rapist gained entry, or on the lot Mason rented. The record shows that, despite any representation made by Chateau, Mason was aware she was responsible for security at her mobile home, and she was also aware of the prior attack and rape at Smokecreek. As the majority opinion points out, Smokecreek residents who attended a neighborhood watch meeting after the first rape and before Mason was raped knew that Smokecreek did not provide security. There is no evidence to support a finding that Chateau assumed a duty which increased the danger to Mason, misled Mason to believe the danger had been removed, or deprived her of possible help from other sources. Owens *120v. DeKalb Med. Center, 253 Ga. App. 19, 23 (557 SE2d 404) (2001). The trial court properly granted summary judgment in favor of Chateau on these claims. Lau’s Corp., 261 Ga. at 491.

Decided June 23, 2006 Gregory, Christy, Maniklal & Dennis, Gary C. Christy, Preyesh K. Maniklal, Isenberg & Hewitt, Melvin L. Hewitt, Jr., for appellant. Drew, Eckl & Farnham, Stevan A. Miller, Barbara A. Marschalk, for appellees.