The “Tenant Exception” in Georgia Premises Liability Cases

In the recent case of Scully v. The Board of Regents of the University System of Georgia, 332 Ga. App. 873, 775 S.E.2d 230 (2015) (Cert. Denied) David C. Scully, a student at Georgia Tech, brought suit against the University System of Georgia after he was injured while visiting a friend that attended the University of Georgia and resided in one of its dorms.  Scully’s suit was based upon theories of premises liability and negligent maintenance, and ultimately the question of whether Scully was an invitee or licensee would become paramount to the outcome of the case.

If you are reading this blog, you are probably aware that, under Georgia law, whether an individual is characterized as a licensee or invitee determines the standard of care that is owed to an injured party.   The two categories of visitors upon another’s property have been described as follows:  An invitee is someone whom a landowner, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose. A licensee, on the other hand, is a person who is neither a customer, a servant, nor a trespasser, who does not stand in any contractual relation with the landowner, and who is permitted to go on the premises merely for [his] own interests, convenience, or gratification.  See Ga. Dept. of Corrections v. Couch, 312 Ga. App. 544, 546 (1) (a) (718 SE2d 875) (2011).  See also OCGA § 51-3-1.  As the Court In Scully put it, “[t]he generally accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or was for business with one other than the owner or occupier.”   Obviously, plaintiffs in premises liability cases, like Scully here, would prefer to be classified as an invitee because the duty of care owed to them by the landowner is greater, making it easier to show that the standard of care was not met by the landowner.  Scully was decided on some very interesting facts that set up a well thought out analysis from the Court of Appeals that ultimately determined that Plaintiff was a licensee.

The Court of Appeals’ opinion in Scully is indicative of just how fact intensive the analysis can be.  In this case, Scully was visiting a friend who lived in Creswell Hall, a dorm, on the UGA campus.  Scully and his friend were walking back to Creswell Hall and were behind another dorm, Park Hall, when Scully was injured after tripping on an irrigation pipe.  These facts cannot be overlooked because Georgia law holds that “a guest of a tenant is an invitee as to the tenant’s landlord.”  Paul v. Sharpe, 181 Ga. App. 443 (1987) (tenant’s guests “stand in his shoes” as to the right of recovery in premises liability cases); Silman v. Associates Bellemeade, 294 Ga. App. 764 (2008).  Thus, the so-called “tenant exception” to the traditional invitee/licensee framework may arguably be applicable.

The Court of Appeals, however, affirmed the lower court and decided it was not applicable because the injury did not occur on the property of Creswell Hall, where Scully’s friend lived.  Although it occurred at another dormitory property owned by the same landlord, i.e., the University of Georgia, the court reasoned that to hold Scully to be an invitee would make everyone who visited the UGA campus an invitee.  Ultimately, because Scully was a licensee, and because it was a static condition that allegedly caused his fall, he could not sustain his burden of proof.

While these are highly unusual facts, the case nevertheless serves as a reminder of the “tenant exception” in premises liability cases.  In circumstances where a guest of a tenant is injured on the premises of his host/tenant, even though she may not be on the property for a business purpose, she still may be found to be a licensee.

Douglas R. Kendrick