Williams v. Kasulka Properties, LP

Plaintiff Damario Williams alleges that he was seriously injured in a physical altercation with a security guard at a nightclub. He brought an action for damages against various defendants.

To be clear, this appeal did not involve the club or the security guards. This appeal was about the plaintiff’s attempt to hold a lessor-landlord and a property management company responsible for his injuries.

Kasulka Properties owns the property at issue. Since 2010, Kasulka Properties has worked with the Eberhardt defendants (property managers) to lease the property to tenants. Eberhardt & Barry Inc. found tenants for the property and, once the property was leased, Eberhardt & Barry Property Management performed property management services such as collecting rent and paying the landlord's bills in connection with the property.

In 2018, Kasulka Properties leased the property to Club Xavier, Inc. The lease provided that Kasulka Properties was not required to make any repairs or improvements to the premises and that the club, at its sole cost and expense, was responsible for repairing and maintaining the premises. It required the club to maintain specified amounts of insurance, including liability insurance, naming Kasulka Properties and the Eberhardt defendants as additional insureds.

Club Xavier hired its own security guards. Neither Kasulka Properties nor the Eberhardt defendants had any role in hiring or training Kendrick or in any other decision the club made in running the business. Plaintiff got into a physical altercation inside the club with a security guard that resulted in serious injuries. The club did not have liability insurance when this incident occurred.

Williams brought claims against Kasulka Properties and the Eberhardt defendants. He asserted that Kasulka Properties and the Eberhardt defendants were negligent in various ways that pertained to the safety of the premises: by failing to warn business patrons about the risk of criminal activity at the premises; by hiring and retaining an unsafe employee, Kendrick; by failing to train their employees to implement proper security measures; and by failing to properly vet potential tenants.

OCGA § 44-7-14 bars an out-of-possession landlord for any liability resulting from the negligence or illegal use of the premises by the tenant, and in that case, this included allegations that nightclub security guards beat a patron of the club. The trial court correctly granted summary judgment in Kasulka Properties’ favor. It is error to analyze an out-of-possession landlord's liability using the principles of premises liability set forth in OCGA § 51-3-1.

The question of whether a landlord is truly out of possession turns on whether there is evidence of “such dominion and control of the premises [by the landlord] so as to vitiate the landlord's limited liability imposed by OCGA § 44-7-14 and replace it with the liability imposed by OCGA § 51-3-1,” which covers premises liability generally. A landlord may retain some rights in a leased premises and still have fully surrendered possession to the tenant, so as to be an out-of-possession landlord with limited liability under OCGA § 44-7-14. The limited liability still applies if a landlord retains the right to enter the premises in an emergency, to inspect the premises for landlord-related purposes, to approve tenants’ construction of improvements to the premises, or to approve tenant insurance policies. Here, there was no evidence that Kasulka Properties retained dominion or control over the premises.

Plaintiff’s argument that Club Xavier’s lease never went into effect because Club Xavier failed to provide a copy of property insurance as required by the lease failed for several reasons. First, the term is not a condition precedent. Second, the parties to the lease were free to modify that term through their conduct, and when the club failed to send a copy of a policy, the landlords still allowed the club to take exclusive possession and open the nightclub. Third, even if the written lease did not go into effect on account of a condition precedent, a landlord-tenant relationship still existed between Kasulka Properties and Club Xavier. A written lease is not necessary. Actual possession with the landlord’s consent creates the landlord-tenant relationship.

Likewise, the property management companies had no legal duty to the plaintiff. There is no general legal duty to all the world not to subject others to an unreasonable risk of harm. Instead, a legal duty sufficient to support liability in negligence is either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of our appellate courts.

Williams argued that the Eberhardt defendants owed him a duty under principles of premises liability (codified at OCGA § 51-3-1) and principles of an agent's individual liability for tortious acts done in the performance of the agency agreement (codified at OCGA § 10-6-85). The Court disagreed.

By its terms, OCGA § 51-3-1 applies only to owners or occupiers of land. The Eberhardts were neither. Their property management responsibilities did not extend to the exercise of any degree of control or possession that would make them an occupier of the premises. They did not manage the daily operations of the club, or have the right to admit or exclude customers, or maintain and repair the premises.

As for the agency argument, an agent may be individually liable “for his own tortious act, whether acting by command of his principal or not,” OCGA § 10-6-85, and Williams cites the rule that an agent may be liable to third persons for misfeasance or malfeasance in the performance of its contract with its principal, but an agent's tort liability to a third party must still be predicated upon breach of a duty owed by the agent to the injured party. A duty is not imposed upon the agent by virtue of his relation with the principal, but is imposed upon him by law as a responsible individual in common with other members of society. Section 10-6-85 would only permit the Eberhardt defendants to be held liable if, in the course of their agency, they breached a duty. Keeping the premises safe was not one of their duties. AFFIRMED.

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