Posted by Susan J. Levy
Eighty-three-year-old Gwyneth Williams was house-sitting for her daughter and son-in-law in a gated golf club community called The Landings, located on Skidaway Island, outside of Savannah. The Landings Association, Inc. v. Williams et al., 2011 Ga. App. LEXIS 278 (2011). The Landings’ 4500 acre community is built around 150 interconnected lagoons originally built by the previous owner, then expanded upon by The Landings’ developer. The lagoon complex connects to wild marshland on Skidaway Island. Alligators, indigenous to coastal Georgia, travel freely between the marsh and the lagoons. On October 6, 2007, Ms. Williams’ body was found floating in a lagoon close to her daughter’s home. The medical examiner determined that Ms. Williams had been attacked by an alligator and as a result, quickly bled to death. Trappers searched the lagoon and captured an alligator, over eight feet long and weighing 130 pounds. Parts of Ms. Williams’ body was found in the alligator’s stomach.
The Landings knew that alligators populated the lagoons and had sometimes climbed up the banks and onto the golf courses. Nevertheless, they had never posted warning signs, nor did they have a policy to inspect the lagoons for alligators. Instead, they had a policy of hiring a trapper to remove any alligators over seven feet long or that had shown aggression to humans or pets, if those alligators were reported to them.
Mrs. Williams’ Estate brought suit against the owners of The Landings, claiming that they were liable for her death under two theories: premises liability and nuisance. The Court of Appeals unanimously and quickly disposed of the nuisance claim. Citing a lack of evidence that “anything generated by the owners’ activities on their property invaded” the peaceful right to enjoy Plaintiffs’ property, the Court reversed the trial court’s ruling and held that summary judgment should have been issued to Defendants on the nuisance claim. Id. at *25 and *26.
Plaintiffs’ premises liability claims, however, divided the Court of Appeals. Plaintiffs argued that the owners failed to exercise due care to protect from the foreseeable risk of attacks by alligators. Specifically, they argued that The Landings created and maintained a perfect habitat for alligators in close proximity to homes and the golf course, but failed to monitor the lagoons sufficiently and instead, negligently relied on community residents to report large alligators¹, which the owners would then have removed.
In response, the owners contended that there had never before been an alligator attack on the property, that, generally, alligator attacks on humans are rare, and to the extent that an attack was foreseeable, that the owners’ knowledge of any alleged risk was not superior to Mrs. Williams’ knowledge. In support, the owners introduced the testimony of Mrs. Williams’ family who admitted that she had, on at least a few occasions, seen alligators at The Landings. Id. at *6.
Georgia law imposes upon an owner or occupier of land the duty to exercise ordinary care to keep its premises safe. O.C.G.A. § 51-3-1 Businesses and property owners have a duty to protect their customers, invitees, and tenants from foreseeable dangers, which includes the duty “to inspect the premises to discover possible dangerous conditions of which it does not know and to take reasonable precautions to protect” from dangers which are foreseeable from the use of the premises. Id. at *9. The owner is, not, however, the insurer of the safety of invitees. “The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality [here, the alligators] and the danger therefrom to persons going upon the property.” Id. at *10. The owner is not liable if the invitee knows or in the exercise of ordinary care should have learned of the hazard and could have avoided injury by the exercise of due care for her personal safety. Id. (quoting Robinson v. Kroger, 268 Ga. 735, 736 (1997)).
In this case, the Court found that the owners were aware of the risk posed by alligators and that they failed to show, as a matter of law, that an attack was not foreseeable or that Mrs. Williams had an equal appreciation of the danger and failed to exercise due care for her own safety. In a 2-1 vote, the Court of Appeals affirmed the trial court’s denial of the owners’ motion for summary judgment and cleared the way for a jury to decide the issue.
In a strong dissent, Judge Andrews agreed with the majority’s conclusion that a risk of an attack by an alligator was foreseeable, but found that the owners did not violate the duty to exercise ordinary care to protect Mrs. Williams from attack. Judge Andrews pointed to the fact that there had never been an attack in The Landings in over 35 years and he wrote at length about the doctrine of “animals ferae naturae” which recognizes that wild animals, ie those that are not domesticated, are uncontrollable and unpredictable. Judge Andrews wrote that “[t]he lack of control by the owners, along with the fact that the alligator population was constantly moving in and out of the lagoons and in and out of The Landings into adjacent marshes, makes it unreasonable to find that ordinary care imposed a duty on the owners to continuously patrol The Landings to look for and remove all large or potentially dangerous alligators. . .To find that the duty of care required the owners . . . to eliminate or reduce the risk of a wild alligator attack is tantamount to imposing a duty to exercise extraordinary care and making the owners the insurers of invitees’ safety.” Id. at **38-39.
While alligators may not pose a risk to many property owners in Georgia, the implications of this decision could be much broader. The Landings did circulate annual publications which often warned residents of the dangers posed by alligators, particularly if fed by humans. There was evidence that Mrs. Williams herself had observed alligators on the property at least once or twice. Given the majority’s ruling, what duty do property owners in Georgia now have to inspect and warn residents of poisonous snakes or black bear? How are property owners supposed to warn invitees of risks from wild animals, however minimal, without scaring away customers? Perhaps the Supreme Court will eventually hear this case and adopt Judge Andrews’ dissent. Until then, however, this case puts property owners on notice that they could be held liable for the failure to adequately warn and protect invitees from wild animals.
__________________________________________ ¹ The Court noted that historically, only mature alligators over eight (8) feet long have been known to seriously injure or kill humans. Id. at *5.