Tuscany Condominium Association, Inc., v. C.P., an adult female. (Georgia Court of Appeals)

This case involves the rape of a tenant at Tuscany Condominiums in the morning of June 7, 2020. Tuscany Condominiums consists of 230 units spread among four 4-story buildings in midtown Atlanta. At the time of the incident, it was managed by an on-site property manager employed by Community Management Associates, and it had a contract for patrol services with Dunwell Services. 

Effective March 1, 2020, the plaintiff rented a unit from a homeowner, Umar Sayed. 

The lease contains the following provisions: House Rules: Resident agrees to abide by any and all protective covenants, by-laws or other regulations as set forth by the subdivision or condominium association of the community…. USE: …. Resident agrees to abide by any condominium or neighborhood association covenants, conditions and rules and regulations that may be in effect for the property. 

Requestor contends that Tuscany’s Declaration applies to the plaintiff by virtue of these lease provisions and the terms of the recorded Declaration. Tuscany’s Declaration contains the following provision relating to security: 

SECURITY. …. EACH OWNER, FOR HIMSELF OR HERSELF AND HIS OR HER TENANTS, GUESTS, LICENSEES, AND INVITEES, ACKNOWLEDGES AND AGREES THAT NEITHER THE ASSOCIATION NOR THE DECLARANT IS A PROVIDER OF SECURITY AND NEITHER PARTY SHALL HAVE A DUTY TO PROVIDE SECURITY ON THE CONDOMINIUM. FURTHERMORE, THE ASSOCIATION DOES NOT GUARANTEE THAT NON-UNIT OWNERS AND NON-OCCUPANTS WILL NOT GAIN ACCESS TO THE PROPERTY AND COMMIT CRIMINAL ACTS ON THE PROPERTY…. NEITHER DECLARANT NOR THE ASSOCIATION SHALL BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY OR INEFFECTIVENESS OF SAFETY MEASURES UNDERTAKEN. 

The property is completely enclosed by a combination of fencing and the outer walls of some of the buildings. It may be accessed through several controlled-access automobile and pedestrian gates. The perpetrator accessed the property through a pedestrian gate that was not closing properly on the day of the incident. He apparently walked around the property for 20-30 minutes before he encountered the plaintiff, and during that time he encountered several other residents. He followed her into the garage where her car was parked. As she was about to get into her car, he approached her and said he would kill her if she did not come with him. They walked side by side (he had his arm around her shoulder) out of the garage, through a common area, and into an unlocked unit. That unit was unlocked, and vacant, because it was being renovated. The rape happened inside that unit. 

The plaintiff sued Tuscany, CMA, and Dunwell. The case was originally filed in Fulton County (the county where Atlanta is located) in early 2021. The parties had conducted discovery for about 2½ years when, on November 6, 2023, the plaintiff dismissed the case and refiled it the same day in Gwinnett County (the county to the northeast of Atlanta). The plaintiff’s primary claim is that the defendants are liable for negligently failing to provide adequate security and maintenance. The appeal involves the trial court’s denial of three motions that we filed on Tuscany’s behalf on December 7, 2023. The first was a motion for summary judgment in which we argued that the plaintiff’s claim for negligent security is barred by the exculpatory clause in Tuscany’s Declaration (quoted above). The second was a motion to dismiss in which we argued that the plaintiff’s secondary claims failed to state a claim upon which relief could be granted. The third was a motion to require the plaintiff to make herself available for a mental examination to be conducted by our expert to evaluate her mental health and prognosis. 

Requestor is now pursuing an interlocutory appeal of the trial court’s rulings on all three motions. The trial court’s denial of our motion for summary judgment is the only ruling that implicates CAI’s interests. 

The only appellate issue that implicates CAI’s interests is whether the trial court erred in finding that the exculpatory clause in Tuscany’s Declaration does not apply to renters. The Georgia Court of Appeals has already decided that exculpatory clauses like the one in Tuscany’s Declaration are valid and enforceable against homeowners, but it specifically based its decision in that case on the unique relationship between a condominium association and the homeowners that comprise the association.