THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
March 15, 2022
In the Court of Appeals of Georgia
A21A1336. VILLAGES OF CASCADE HOMEOWNERS
ASSOCIATION, INC. v. EDWARDS.
REESE, Judge.
We granted the application of the Villages of Cascade Homeowners
Association, Inc. (“VCHOA”) for interlocutory appeal from the trial court’s order
denying summary judgment on claims of premises liability and nuisance, and for
punitive damages. For the reasons set forth infra, we reverse.
Viewing the evidence in the light most favorable to Herbert Edwards as the
non-moving party,1 the record shows the following. The Villages of Cascade (the
“Villages”) consisted of approximately 126 townhomes in Atlanta. The owners of the
townhomes were also members of a homeowners association, the VCHOA. The
1
See Yash Solutions v. New York Global Consultants, 352 Ga. App. 127, 138-
139 (2) (834 SE2d 126) (2019).
VCHOA was responsible for, inter alia, maintaining common areas of the property.
These maintenance responsibilities included private roads, parking areas, and the
vehicle entrance and exit gates. The VCHOA contracted with Community
Management Associates, Inc. (“CMA”) to manage the property, which included
overseeing the day-to-day maintenance of the community.
On September 10, 2015, residents of the Villages noticed that the vehicle exit
gate was broken. Lynne Mercedes, Board President of the VCHOA, e-mailed CMA,
informing it of the issue and requesting that the gate be repaired. CMA forwarded the
e-mail to Timothy Pfeiffer, “gate repairman” for the Villages, approximately one
minute later. On September 12, Pfeiffer e-mailed a quote for repairing the gate to
CMA and the VCHOA, and the VCHOA provided signed approval that same day.
The gate repair was completed at or around the end of September. The repair required
additional time as the gate had to be refabricated.
On September 14, 2015, just after midnight, Edwards was returning to the
Villages where he rented a room in a townhome from Robert and Constance Shannon,
who lived in the unit with Edwards. Although Edwards paid rent to the Shannons, the
unit was owned by Judith Bartley.
2
As Edwards approached the Villages, he noticed two men walking toward the
townhome complex. Edwards then entered the complex and parked in a visitor space
within the Villages. As he exited his car, the two men ran toward him with guns
drawn, and told him to give them everything or they would kill him. After Edwards
provided his keys, wallet, and phone to the men, they ordered him on the ground with
his hands over his head. Shortly thereafter, one of the men shot Edwards in the left
hand. The men then left the Villages through the broken exit gate.
Edwards presented evidence showing that his shooting was not the first
criminal activity that had occurred at the Villages. Since 2012, the Villages had
experienced incidents of robbery, burglary, trespassing, and vandalism. These crimes
were often reported to residents via e-mails entitled “Crime Alert” from the VCHOA
Board of Directors.
Edwards sued the VCHOA and CMA asserting claims for negligence,
negligence per se, nuisance, and premises liability, and seeking compensatory and
punitive damages.2 The VCHOA and CMA filed motions for summary judgment. The
trial court granted CMA’s motion for summary judgment in its entirety, and granted
2
Edwards abandoned his claims for negligent entrustment, negligent
misrepresentation, negligent hiring, training, supervision and retention, and attorney
fees.
3
VCHOA’s motion for summary judgment as to Edwards’s claim of negligence per se.
However, the court denied VCHOA’s motion as to the claims of premise liability,
nuisance, and on the issue of punitive damages. We granted VCHOA’s application
for interlocutory appeal.
“Summary judgment is appropriate when there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. In reviewing
a trial court’s ruling on a motion for summary judgment, we apply a de novo standard
of review, and we view the evidence in a light most favorable to the nonmovant.”3
“To prevail at summary judgment under OCGA § 9-11-56, 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.”4 With these guiding principles in mind, we now turn to VCHOA’s
claims of error.
1. VCHOA argues that the trial court erred in denying its motion for summary
judgment relating to Edwards’s premises liability claim pursuant to OCGA § 51-3-1.
3
Britt v. Kelly & Picerne, Inc., 258 Ga. App. 843 (575 SE2d 732) (2002)
(punctuation and footnote omitted).
4
St. Mary’s Health Care System v. Roach, 345 Ga. App. 274, 276 (811 SE2d
93) (2018) (citation and punctuation omitted).
4
Specifically, the VCHOA asserts that the trial court erred, in part, because the
VCHOA did not breach any legal duty owed to Edwards. We agree.
As a threshold matter, it is important to note that the VCHOA is not a typical
property owner in a landlord-tenant dispute. The VCHOA is composed of the
individual homeowners themselves and is governed by the covenants agreed to by
each owner upon purchase of a townhome.5 Its budget is limited to the dues paid by
its members. Beyond providing physical maintenance of common areas such as
shared landscaping, private roadways, parking areas, and the entrance gates, the
duties of the VCHOA outlined in the covenants do not include providing security.
Assuming without deciding that Edwards was an invitee, the standard of care
that would be owed by VCHOA was ordinary care, i.e., reasonableness.6 “Exactly
what constitutes ‘ordinary care’ varies with the circumstances and the magnitude of
the danger to be guarded against. . . . But, to be negligent, the conduct must be
5
Homeowners were responsible under the covenants for ensuring that guests,
tenants, and occupants complied with all covenant provisions.
6
See OCGA § 51-3-1; Sipple v. Newman, 313 Ga. App. 688, 689-690 (722
SE2d 348) (2012) (“Under Georgia law, an owner of land is liable to the owner’s
invitees ‘for injuries caused by [the owner’s] failure to exercise ordinary care in
keeping the premises and approaches safe.’”) (citing OCGA § 51-3-1).
5
unreasonable in light of the recognizable risk of harm.”7 This means that “[a]lthough
a landowner has a duty to invitees to exercise ordinary care to keep its premises safe,
the landowner is not an insurer of an invitee’s safety.”8
Here, when the VCHOA was notified of the broken gate, it initiated remedial
action the same day and approved an estimate for the repair work two days later; the
gate, which needed refabrication, was fully repaired a mere eleven days later.
Edwards’s injury occurred four days after the gate was broken and only two days after
the estimate was approved. These facts are undisputed, and they do not support an
inference that VCHOA failed to meet its burden to act reasonably after being notified
of the broken gate. There is no evidence that VCHOA could have gotten the repair
done before Edwards was attacked, and to hold otherwise would be to put the
VCHOA in the role of an insurer of the safety of anyone lawfully on the property.
This is contrary to Georgia law and the covenants governing the Villages.
7
Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (2) (405 SE2d 474) (1991)
(citations and punctuation omitted).
8
Agnes Scott College v. Clark, 273 Ga. App. 619, 621 (1) (616 SE2d 468)
(2005) (citation omitted).
6
Thus, the plain and undisputed facts show no conduct by the VCHOA that
failed to meet what was required by ordinary care.9 Put another way, the VCHOA’s
prompt remedial measures, which resulted in a successful repair, foreclose liability
absent some unsupported conjecture that another reasonable course of conduct by the
VCHOA would have prevented the crime in this case. But mere conjecture and
9
See Lau’s Corp., 261 Ga. at 493 (2) (summary judgment is appropriate in
“plain and palpable cases where reasonable minds cannot differ as to the conclusion
to be reached[ ]”) (punctuation omitted). An expert criminologist hired by CMA
testified that the Villages of Cascade “was not a hot spot for violent crime,” with no
violent crimes in the three years preceding the incident. He further testified that the
property did not justify enhanced security measures based on the crime statistics and
relevant data, as well as the limited effectiveness of gates preventing violent crime.
Finally, he testified that the VCHOA took reasonable measures to repair the gate
relative to the situation they were confronted with in having to have the gate
refabricated.
7
possibility are insufficient grounds to avoid summary judgment.10 Therefore, the trial
court erred in denying summary judgment on Edwards’s premises liability claim.11
2. VCHOA argues that the trial court erred in denying its motion for summary
judgment on Edwards’s nuisance claim. We agree.
To the extent that Edwards’s nuisance claim was predicated on the above
conduct, it fails for the same reason.12 The VCHOA’s conduct in repairing the gate
did not contribute to a nuisance condition. To the extent that Edwards’s claim is
10
See George v. Hercules Real Estate Svcs., 339 Ga. App. 843, 846-847 (1) (a)
(795 SE2d 81) (2016) (holding that because there was no evidence that increasing
security would have affected the crime rate in general or the particular crime that
injured the plaintiff, the evidence was insufficient to create a question of fact on
whether the plaintiff’s injuries were proximately caused by any act or omission of the
defendant); Walker v. Aderhold Properties, 303 Ga. App. 710, 714-715 (2) (694 SE2d
119) (2010) (“[A] plaintiff must do more than merely speculate as to whether
enhanced security measures would have prevented an attack. This is so because
guesses or speculation which raise merely a conjecture or possibility are not sufficient
to create even an inference of fact for consideration on summary judgment.”) (citation
and punctuation omitted); Johns v. Housing Auth., 297 Ga. App. 869, 871-872 (678
SE2d 571) (2009) (same).
11
See Lau’s Corp., 261 Ga. at 491 (“If there is no evidence sufficient to create
a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like
a house of cards. All of the other disputes of fact are rendered immaterial.”).
12
See Barnes v. Morganton Baptist Assn., 306 Ga. App. 755, 759 (2) (c) (703
SE2d 359) (2010) (“As to plaintiff’s nuisance claim, it stems from defendants’
alleged failure to keep the premises safe and, essentially, constitutes a breach of the
same duty to protect [plaintiffs].”) (citations and punctuation omitted).
8
based on overall conditions and historical events at the Villages, the record likewise
fails to support a finding of a breach of the VCHOA’s duty.
“To be liable under a nuisance theory under the facts of this case, [the
VCHOA] must have created or maintained a continuous or regularly repeated act or
condition on the property, which caused [Edwards’s] injury.”13 As stated above, the
VCHOA was not a landlord and did not have a duty to address overall security issues
beyond the physical maintenance of the common roadways, parking lots, and access
gates.14 The homeowners, in turn, addressed shared security needs by instituting a
neighborhood watch, sending regular e-mail updates about crime, and insisting on
homeowners’ cooperation in maintaining certain standards of conduct. Because the
13
Barnes v. St. Stephen’s Missionary Baptist Church, 260 Ga. App. 765, 769
(2) (580 SE2d 587) (2003) (footnote omitted).
14
Cf. Sadlowski v. Beacon Mgmt. Svcs., 348 Ga. App. 585, 594 (1) (824 SE2d
42) (2019) (“[T]he HOA had no duty under the express terms of the condominium
instruments to execute such security measures[.]”) (punctuation and footnote
omitted); Demere Landing Condo. Owners Assn. v. Matthews, 315 Ga. App. 464, 467
(1) (726 SE2d 416) (2012) (physical precedent only) (“[C]ondominium bylaws
represent a form of private law making, in which individual owners come together
and agree to subordinate some of their traditional individual ownership rights and
privileges when they choose this type of ownership experience.”). Compare Ermert
v. Wildwood at Meadow Gate Homeowners Assn., 354 Ga. App. 656, 658 (840 SE2d
457) (2020) (plaintiff sued homeowners association claiming negligent failure to
correct a depression in the common-area ground that was maintained by the
homeowners association).
9
covenants governing the VCHOA’s responsibilities do not include a duty to control
the security of the common elements aside from physical maintenance, the VCHOA
“cannot be found responsible for the maintenance of any alleged continuing nuisance
existing on the common elements due to an alleged lack of security.”15 Accordingly,
the record lacks a triable issue as to VCHOA’s liability under a nuisance theory,16 and
the court erred in denying summary judgment as to that claim.
3. The VCHOA argues that the trial court erred in denying summary judgment
on the punitive damage claim. The punitive damage claim is derivative of the
premises liability and nuisance claims. Therefore, summary judgment was appropriate
on the punitive damages claim as well.17
Judgment reversed. Doyle, P. J., and Brown, J., concur.
15
Bradford Square Condo. Assn. v. Miller, 258 Ga. App. 240, 248 (1) (b) (573
SE2d 405) (2002).
16
The VCHOA argues that Edwards’s nuisance claim was premised on failing
“to remedy or reduce the danger” and allowing a dangerous environment to continue
on the premises unabated does not exist independently of his premises liability claim.
17
See George, 339 Ga. App. at 849 (1) (c) (“A claim for punitive damages is
derivative in nature and will not lie in the absence of a finding of compensatory
damages on an underlying claim.”) (punctuation and footnote omitted).
10