The Distinction Between an Out of Possession and in Possession Landlord in Slip and Fall Cases

Should a landlord be held responsible for a slip and fall at his rental property?

The question likely solicits a response beyond a simple yes or no. Indeed, this question, like many legal inquires, simply begets additional questions. For instance, where on the rental property did the accident happen, or who had control and oversight over the space? These and other questions were among those with which the Georgia Court of Appeals recently wrestled in its decision in Cowart v. Schevitz. Cowart began with a trip to a restaurant in January 2011.

The plaintiff, in this case, had just finished dining, and as she stepped onto a ramp that led from the exit of the restaurant to the parking lot, she fell and injured herself. The ramp had no handrails, which contravened local building code regulations. An expert enlisted by the plaintiff averred that if the ramp had handrails, the handrails would’ve provided not only support to those on the ramp but also a visual indication of the steep decline between the exit area and the ramp.

Following the fall, the plaintiff brought a premises liability lawsuit against the landlord and the restaurant. The plaintiff settled her claims with the restaurant, but following some discovery, the landlord moved for summary judgment. The trial court denied the motion without opinion. The principal question on appeal was whether the remaining defendant was an out-of-possession landlord and thus not liable for the plaintiff’s injuries under the more stringent standard for liability imposed on out-of-possession landlords.  Compare O.C.G.A. § 51-3-1 (delineating general liability standards for property owners) with O.C.G.A. § 44-7-14 (delineating liability imposed on out-of-possession landlords). The plaintiff argued that the defendant was not out-of-possession because he retained control over the premises. Specifically, the plaintiff referenced the lease agreement between the restaurant and the landlord, which provided that the landlord would maintain the physical condition of the property and perform all maintenance. The lease also provided that the landlord could inspect the property at any time and that the restaurant needed the approval of the landlord before making any physical changes beyond relocating the bathrooms.

On this question, the Court of Appeal sided with the defendant’s position. Under Georgia law, a “landlord[] still . . . part[s] with possession . . . when [he] retain[s] limited entry or inspection rights . . . . Such limited rights do not [establish] . . . control . . . which vitiate[s] the . . . limited liability [under] O.C.G.A. § 44-7-14 . . . . However, if [a] landlord . . .  inspect[s] the property, he has a duty to repair  . . .  unsafe conditions [that] should have been discovered [during the] inspection.”  Watts & Colwell Builders, Inc. v. Martin, 313 Ga. App. 1, 6 (2011).  Since the evidence in this case only showed that the landlord retained control that was tantamount to inspection rights, he was not in possession.

Although the plaintiff argued that the landlord’s right to approve changes to the property indicated sufficient control, the Court noted that prior case law foreclosed that conclusion.  See Ray v. Smith, 259 Ga. App. 749, 749-50 (2003).Accordingly, liability was governed by O.C.G.A. § 44-7-14, which provides that a landlord who is out of possession  “is not responsible . . . for . . . negligen[t]. . . use of the premises by the tenant” but is “responsible for damages [related to] defective construction or . . .  the failure to keep the premises in repair.” The ramp at issue here was constructed by a previous owner, not the landlord.

Accordingly, the landlord could only be held liable for if he “knew or [reasonably] could have known of [the] improper construction” The Flagler Co. v. Savage, 258 Ga. 335, 337 (1988).  In this case, the Court of Appeals concluded that the ramp’s lack of a railing was not an obvious structural defect. See, e.g., Rainey v. 1600 Peachtree, LLC, 255 Ga. App. 299, 301-02 (2002) (holding that uneven steps and small landing constructed by the prior owner were not obvious structural defects such that current landlord could be held liable for failing to repair them prior to leasing property to another). Accordingly, the Court of Appeals concluded that there was insufficient evidence to create a triable issue of fact regarding the landlord’s liability and that the trial court erred in not granting the defendant’s motion for summary judgment.

As this case aptly demonstrates, there are few questions in law that are amenable to simple yes or no resolutions. Instead, cases often turn on particular facts that in many instances can take a case down several different doctrinal paths. Indeed, although a slip and fall case may seem simple on its face, someone who has been injured in a possible incident of negligence should nevertheless consider finding experienced counsel to help them on the path from complaint to possible recovery. The Atlanta premises liability attorneys at Christopher Simon Attorney at Law have many years of experience representing injured Georgians and are ready to provide you with assistance with a possible claim.  If you believe you have a possible claim, feel free to contact us to arrange a free case consultation.