May 22, 2024. Partner Nik Makarenko and Senior Associate Attorney Doug MacKimm won Summary Judgment on behalf of their client in the State Court of Gwinnett County.
This case arose out of an incident that occurred on March 6, 2021. The Plaintiff was at a nightclub and alleged that when she was about to leave the establishment one of the exits was blocked. She proceeded to the other exit and as she attempted to exit the building she slipped and fell from an unknown liquid/substance at the exit and fell on a walkway where there was an uneven ramp. This fall resulted in her suffering a fibula fracture and other ankle injuries. Plaintiff brought suit against the nightclub as well as Mr. Makarenko and Mr. MacKimm’s client who was the landlord. She alleged the landlord was negligent for failing to keep the premises in good and safe condition including specific allegations that the landlord failed to supervise common areas, failed to provide adequate ingress and egress and failed to keep the premises clear of hazards.
Mr. Makarenko and Mr. MacKimm contended their client was an out of possession landlord that breached no duty to the Plaintiff. After conducting discovery they moved for summary judgment on behalf of their client. In their brief they acknowledge their client was the landlord and the Plaintiff was an invitee, however, that their client had executed a lease with the nightclub owner and had parted with possession of the property pursuant to O.C.G.A. 44-7-14 which states:
“Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.”
The plaintiff did not dispute that the landlord was an out of possession landlord, but alleged that the landlord did fail to repair certain defects and also failed to enforce the lease provision requiring the tenant to carry liability insurance. Further the plaintiff presented an affidavit with her Response brief alleging her fall was due to a chipped tile on the floor (in contradiction to her deposition testimony) where she stated she slipped on a wet substance.” She further alleged that by failing to enforce the lease provision requiring that the tenant carry liability insurance, the landlord assumed liability on the part of the tenant.
Judge Veronica Cope of the State Court of Gwinnett County granted summary judgement to Mr. Makarenko and Mr. MacKimm’s client finding it was an out of possession landlord under the statute. She further made findings that the statements regarding the chipped floor were not supported by the evidence as Plaintiff’s own deposition testimony had placed the cause of the fall on a wet substance and that allegations regarding the “chipped” floor’s role in the fall were mere speculation. She further found the plaintiff’s argument that the landlord assumed the liability of the the tenant by virtue of failing to enforce its lease terms were unsupported by the law and unsupported by any provision of the lease agreement.
The case is Amanda Brodie v. RSSS, LLC, Haven Restaurant & Lounge, BDB Lilburn Corners, LLC, State Court of Gwinnett County, CAFN 21-C-08252-S6.
Read more about Partner Nik Makarenko here.
Read more about Senior Associate Doug MacKimm here.
Read more about GMKE at http://www.gmke.law. Follow GMKE on Linkedin, Facebook, Instagram and Twitter.
