Don’t Shoot, I’m Only the Photographer

Posted in Georgia Court of Appeals on July 10, 2020

June 3, 2020

In the Court of Appeals of Georgia

A20A0038. MORRIS v. REAL ESTATE EXPERT ADVISORS, LLC et al.

Correcting a decision by the trial court, the Court of Appeals here overturned Defendant’s motion for summary judgement.

 Don’t Shoot, I’m Only the Photographer

The Plaintiff, Morris, was hired by the Defendants (real estate agents) to take photographs of properties that the Defendants represented for sale. The procedure was that the Defendants would first secure agreement from the property owner for a photographer to shoot the property, then arrange the photographer, then let the property owner know the date and time of the photoshoot. Morris added that he’d always received specific instructions on how to enter the property, if anyone would be there, and so on.

When Morris entered the property — a residence — by means of a lockbox (he’d been given the code for it by the Defendants), a security alarm went off. Morris first checked the lockbox to see if there were instructions for turning the alarm off, then he went to check the keypad inside the house to see if there were instructions there. It was at that point that the homeowner shot Morris in the back with a gun.

At the trial court, Morris claimed that the Defendants, in failing to notify the homeowner that he was coming to photograph the house and in failing to tell Morris that a homeowner would be home, were negligent.

Admissions

Although a negligence case, the decision here does not explore whether or not the Defendants owed Morris a duty to keep him safe while photographing the property.

Even before Morris filed suit, he received a letter from one of the Defendant’s counsel, which claimed that Morris “conducted himself more like a bungling thief than a so-called ‘professional’ photographer” while at the home, that he was a “victim of his own stupidity and was the cause of his injuries,” and that his “behavior, from the time he arrived at [the home] through the time he caused himself to get shot inside . . . , was, in a word: braindead.” The letter also included statements that the Defendant “owed no duty whatsoever to Mr. Morris,” that she “was not the cause of Mr. Morris’s injuries,” and that the Defendant “did not cause injury to Mr. Morris.”

Morris requested that the Defendant admit this letter, and it was. This letter is at the center of the summary judgment and the Court of Appeals decision.

The Defendants filed a motion for summary judgment (summary judgment is granted for the moving party when there is no genuine issue as to any material facts in the case, and based on the facts the moving party is entitled to judgment as a matter of law). The Defendants’ argument was that that “they owed no duty of care to Morris and, thus, did not proximately cause his injuries.” Alternatively, they argued they were entitled to summary judgment because “Morris’s contributory or comparative negligence barred recovery because his injuries were solely caused by his own conduct.”

The trial included many requests for depositions by Morris, and it was after a hearing some months later that the trial court granted the Defendant’s motion for summary judgment. The trial court relied on Defendants’ admissions (including the letter mentioned above), and said that there was a “a “lack of evidence of record to support the duty and causation elements of [Morris’s] claims against [the Defendants].”

It Is You Who Say That

The admission of the letter was the basis for the Court of Appeals reversal: Morris claimed that the trial court had taken this letter as binding on him — that is, that he was bound by the letter’s claim that the Defendants didn’t owe him a duty of care. The Court concluded that the Defendants had relied solely on the letter for this admission, and therefore that it was necessary to consider if the admission was binding on Morris (since the defense had failed to provide any other evidence to show that Morris was not owed a duty of care).

The point here is that the Defendants “only discussed their own admissions, not a lack of evidence,” however a lack of evidence by Morris has the basis for the motion for summary judgment.

The Court analyzed O.C.G.A. § 9-11-36 to answer the question of whether the defendant’s admissions to Morris’s requests bound him (as “the party who sent the requests for admission”). This code section states: that “[a]ny matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” The question specifically was: is an admission under § 9-11-36 binding on not only the admitting party but also on the requesting party. The Court concluded that it is not, seeing such admissions as akin to judicial admissions, rather than evidentiary admissions.

Since the Court found that the admission of the letter stating that the Defendants had no duty of care for Morris while he was photographing properties for the Defendants was not binding on Morris, the Court concluded that the trial court erred in granting summary judgment for the Defendants, and reversed.