Landings Ass'n v. Williams

Ellington, Chief Judge. In this action, the estate and heirs of Gwyneth Williams (collectively, “the appellees”) seek to recover damages from the owners of a lagoon where Williams was allegedly killed by a large alligator. The State Court of Chatham County denied in part the motion for summary judgment filed by the joint owners of the lagoon, The Landings Association, Inc. (“the association”) and The Landings Club, Inc. (“the club”) (collectively, “the owners”). In an earlier appeal, we concluded, inter alia, that a question of fact remains as to whether the owners failed, pursuant to the law of premises liability, to take reasonable steps to protect Williams from being attacked and killed by an alligator on their premises. See The Landings Assn. v. Williams, 309 Ga. App. 321, 324-326 (1) (711 SE2d 294) (2011). The Supreme Court of Georgia granted certiorari to determine whether we erred in [761] reaching this conclusion. The Landings Assn. v. Williams, 291 Ga. 397 (728 SE2d 577) (2012). The Supreme Court found that the record shows that Williams had equal knowledge of the threat of alligators within the community and, therefore, that the owners are entitled to judgment as a matter of law on the appellees’ premises liability claims and reversed. Id. at 399. Accordingly, our decision in The Landings Assn. v. Williams, 309 Ga.App. at 324-326 (1), is vacated, and the judgment of the Supreme Court is made the judgment of this Court. The grant of certiorari did not reach Divisions 2, 3, or 4 of our opinion. In Division 2, we considered the owners’ argument that, under the common law doctrine of animals ferae naturae, a landowner is not responsible as a matter of law for any harm caused by a free wild animal on the owner’s land. The Landings Assn. v. Williams, 309 Ga. App. at 327-329 (2). We held that, under Georgia law, the doctrine of animals ferae naturae does not operate as an exception to Georgia’s general principles regarding a landowner’s duty to exercise ordinary care in keeping its premises safe such as would confer a blanket immunity from liability for any harm caused by a free wild animal on the owner’s land. Id. We held that, [ajlthough a defendant [owner or occupier] may he entitled to summary judgment where, as in Williams v. Gibbs, [123 Ga. App. 677 (182 SE2d 164) (1971) (physical precedent only),] there is no evidence that the [defendant] should have anticipated the presence of the wild animal that injured the plaintiff, where there is evidence from which a jury could find that the defendant should have anticipated the presence of the wild animal and that it was reasonably foreseeable that its presence would render the premises unsafe for visitors, the defendant will not be entitled to judgment as a matter of law purely on the basis of the doctrine of animals ferae naturae. The Landings Assn. v. Williams, 309 Ga.App. at 328-329 (2). We have reviéwed Division 2 and conclude that it is consistent with the Supreme Court’s ruling, which likewise applied Georgia’s general principles of premises liability to the owners’ appellate arguments. In Division 3, we considered the association’s argument that it was entitled to judgment as a matter of law on the appellees’ nuisance claim and held that the appellees’ complaint failed to state a claim for nuisance. The Landings Assn. v. Williams, 309 Ga.App. at 329-330 (3). Accordingly, we reversed the trial court’s summary judgment [762] order in part. We have reviewed Division 3 and conclude that it is also consistent with the Supreme Court’s ruling. As a result, our holdings in Divisions 2 and 3 of The Landings Assn. v. Williams, 309 Ga. App. at 327-330 (2), (3), became binding upon return of the remittitur and remain the judgment of this Court. Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001); Kaminer v. Canas, 294 Ga. App. 669, 670 (671 SE2d 175) (2008). In Division 4 of our opinion, we considered the club’s argument that the trial court erred in considering certain experts’ depositions. The Landings Assn. v. Williams, 309 Ga.App. at 330 (4). Because we concluded that the owners were not entitled to judgment as a matter of law on the appellees’ premises liability claims, even when the challenged testimony was not considered, we concluded that the issue of whether the trial court abused its discretion in considering the testimony was moot. Id. Although it is not clear from the opinion of the Supreme Court whether it considered the challenged testimony, in the absence of an express ruling on the club’s argument, we find no basis for vacating that division of our opinion. Judgment reversed. Barnes, P. J., Phipps, P. J., and Miller, J., concur. Doyle, P. J., Andrews and McFadden, JJ., concur specially.