Sackman v. Balfour Beatty Communities, LLC et al

Filing 47

ORDER granting in part and denying in part 16 Motion for Summary Judgment; granting 18 Motion to Exclude the Testimony of Plaintiff's Expert Mark E. Williams; granting in part and denying in part 20 Motion for Partial Summary Judgment. This case shall proceed to trial in due course. Signed by Judge J. Randal Hall on 09/08/2014. (thb)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

LAUREN SACKMAN, individually

*

and as mother of Hannah Ross,
deceased, and as Administrator
of the Estate of Hannah Ross,

*
*
*

Plaintiff,

*

v.

*

CV 113-066

•

BALFOUR BEATTY COMMUNITIES,

LLC,

*

BALFOUR BEATTY MILITARY HOUSING

*

MANAGEMENT, LLC, JOHN DOE, JANE
DOE, RICHARD ROE CORPORATION,
and MARY DOE CORPORATION,

*
*
*
*

Defendants.

*

ORDER

Presently

Communities,
LLC's

no.

judgment

before

the

Court

is

Balfour

Beatty

LLC and Balfour Beatty Military Housing Management,

(collectively,

(doc. no.
(doc.

pending

"Balfour Beatty")

motion for summary judgment

16), Balfour Beatty's motion to exclude expert testimony
18),
(doc.

and
no.

Lauren
20) .

Sackman's
For

the

motion

reasons

for

partial

summary

stated

below,

Balfour

Beatty's motion for summary judgment is GRANTED IN PART AND DENIED
IN

PART,

Balfour

Beatty's

motion

to

exclude

is

GRANTED,

and

Plaintiff's motion for partial summary judgment is GRANTED IN PART
AND

DENIED

IN PART.

I.

BACKGROUND

A. Factual Background

This
child,

case

arises

Hannah Ross

her ex-husband,

from

the

("Hannah").

Jeffrey Ross,

tragic

drowning

Lauren Sackman

of

an

autistic

("Plaintiff")

and

are Hannah's surviving parents.

At

the time of her death, Hannah was seven years old.

She lived with

Plaintiff and Plaintiff's husband, John Sackman ("Mr. Sackman"),

as

well as her brother William Ross and half-brother Bradley Sackman
(collectively,

autistic.

the

In 2011,

"Sackmans").

Hannah

at 6-7.)

the

States

In February 2012,

Army,

received

Mr.

notice

William

were

in California.

the Sackmans were living

Sackman Dep.

United

Both

and

(J.

Sackman,

that

a major in

he

was

being

transferred to Fort Gordon in Georgia.
I. Initial Communications with Balfour Beatty

Balfour

Beatty

provides

property

military housing at Fort Gordon.1
24,

2012,

Plaintiff

management

(Cohn Decl. H

Sackman Dep., Ex. 33.)

on

member

family
was

to

(Id.)

members

1 Plaintiff alleges

secure

a receptionist.

(L.

Ms. Lawler then emailed Plaintiff a housing

2012.

enrolled

for

On February

which Plaintiff completed and sent back to Ms.

February 29,

relevant

8-9.)

called Balfour Beatty in an effort

on-base housing and spoke with Carol Lawler,

application,

services

and

in

the

Lawler

Plaintiff's application listed all

indicated

that

Exceptional

theories of

direct,

at

least

Family
agency,

one

Member
and

joint

family
Program
venture

liability between Balfour Beatty Communities, LLC and Balfour Beatty Military
Housing Management, LLC.
(Am. Compl. f 17.)
As these issues are not
contested at this stage,
the
Beatty" for ease of reference.

Court

refers

to

both

entities

as

"Balfour

("EFMP") .2

(Id.)

The application also asked,

housing modifications?"

(Id.)

However,

to Ms.

Lawler,

and Plaintiff

"Do you require

indicated that

she did not.

in her email sending the completed application back
Plaintiff stated:

I went
EFMP.
before
yes to

ahead and did say yes to having a family member in
My daughter from my first marriage was under EFMP
due to her having autism. ...
I didn't check
require housing modifications but would a fence be
considered under that?
My daughter is considered a
flight risk so we would for sure need one.

(Id.)

Ms. Lawler then forwarded the email correspondence to Nicole

Campbell,
Ms.

the Senior Resident Specialist at Balfour Beatty.

Campbell

assignments

managed

and

assignment.

Balfour

handled

the

Beatty's

Sackmans'

waitlist

application

(Campbell Dep. at 8-9, 34-35,

(Id.)

for

housing

and

housing

39; Hignite Dep. at 29-

30.)

On March 2, 2012, Ms. Campbell emailed Plaintiff and indicated

that,

be

after all necessary documents were received,

placed

in

Sackman Dep.,

either
Ex.

34.)

the
Ms.

Maglin

or

Lakeview

Plaintiff might

neighborhoods.

(L.

Campbell stated:

The Lakeview floor plans do have fences in all the homes,
however, Maglin is based on past resident [sic].
We do
not put fences up in Maglin, but if your home does not
have one, we will authorize you to put one up, but it
would be at your own cost.
If the home does not have a
fence, you can complete an Alterations Form and go with
any vendor.
When you move out, you can choose to leave
it or take it with you.
(Id.)

Thereafter,

Plaintiff

additional emails and documents.

and

Balfour

Beatty

(L. Sackman Dep.,

exchanged

Exs. 35-43.)

2 EFMP is a program designed to help military families who have children
with mental or physical disabilities.

(Washington Dep. at 12.)

2. Housing Assignment and Move-In

On

March

15,

2 012,

Ms.

they were assigned a home

Campbell

in Fort

located at 135 Cypress Circle,
Sackman Dep.,
Lake.

Ex.

44.)

(Campbell Dep.

The
at

Gordon's

Richmond

home

52.)

notified

was

County,

the

Sackmans

that

Lakeview neighborhood

situated

However,

the

Georgia.3

near

Soil

lake was

(L.

Erosion

not visible

from the home due to a wooded area between the neighborhood and the

lake.

(Id. ; Hignite Dep. at 102; Pi. 's Ex. 60.)

Balfour Beatty

did not factor the proximity of the lake and Hannah's flight risk
into the decision to assign this home to the Sackmans.
Dep.

at 52.)

lake.

Balfour Beatty never informed the Sackmans about the

(Id. ; J. Sackman Dep.

the lake at the time
Sackman Dep.

tour

the

(Campbell

aware

home,

Dep.

that

was a flight

The Sackmans were unaware of

(J.

Sackman Dep.

at 11; L.

at 177.)

at

Plaintiff and Mr. Sackman met Ms. Campbell

execute

the

40,

L.

46;

children were also present.
was

at 12.)

they moved in.

On March 30, 2012,
to

(Campbell

two

risk.

of

the

(Id.

requisite

Sackman Dep.

(Campbell Dep.
children

were

at 63-64.)

(Id. at 40.)

at

and

133.)

at 40.)

autistic

and

move

The

in.

three

Ms. Campbell
that

Hannah

Ms. Campbell walked through

and around the house with the Sackmans,
rooms and the curtilage.

paperwork,

showing them all

interior

Ms. Campbell knew about the

3 The notification was sent to Plaintiff and Mr. Sackman via email and,
among other information, provided a link to a "Resident Guide" on Balfour
Beatty's website and requested that the Sackmans read the guide prior to
their move-in appointment.
(L. Sackman Dep., Ex. 44; Campbell Dep. at 4647.)

lake but did not mention the lake.4

(Id. at 52; L. Sackman Dep. at

179.)

After touring the house, Mr. Sackman left to get a money order
to pay for the first month of rent.
At

that

time,

backyard.

height

Ms.

(Id.

of

the

at

fence

Campbell

(L.

Sackman Dep.

proceeded
Plaintiff

137-38.)

to
was

surrounding

the

show

at 13 3-34.)

Plaintiff

concerned

backyard.5

the

about

(Id.

at

the

138.)

Plaintiff asked Ms. Campbell if Plaintiff could make alterations to
increase the height of the fence or build their own fence.
47,

138-41.)

Plaintiff

also

asked

if

the

fence

to enclose a side door that exited the garage.

(id. at

could be

(Id.

extended

at 141.)

Campbell responded that Plaintiff could not change the fence,
was

against

point,

policy.

(L.

Sackman Dep.

Plaintiff also noticed a

said that it was unacceptable.

at

As
fence,

Sc Ex.

140-41.)

problem with the

fence

2012.

At

some

latch and

(L. Sackman Dep.

28. )

Plaintiff

believed

that

nothing

could be

done

about

the

she then asked if they could install additional locks on the

doors that were higher up and out of Hannah's reach.
Dep.

as it

(Id. at 14 0; Campbell Dep. at 67.)

Balfour Beatty fixed the latch on April 2,
at 66-67,

47,

Ms.

at 42-43,

143.)

(L.

Sackman

The house had three exterior doors and all of

4 Plaintiff testified that, if she had been notified of the lake at that
time, she would not have accepted the house because she knew that Hannah was
drawn to water.
(L. Sackman Dep. at 177-80.)
Mr. Sackman also testified
that, if he had known about the lake, he would have requested a different
housing assignment.
(J. Sackman Dep. at 52-53.)
5 Plaintiff and Mr. Sackman had earlier observed the fence from inside
the house through a window, and Plaintiff had expressed her concerns about
the fence and the risk of Hannah escaping.
(J. Sackman Dep. at 8.)
Ms.
Campbell was not present during that conversation. (Id.)

them had a locking mechanism on the knob and a dead-bolt - both of

which could be unlocked

without using a key.6
Dep.

at

19-20.)

they moved in,

from the inside with a simple twist and

(Id. at 21-22, 135-37, & Ex. 20; J. Sackman

Although Hannah could not unlock the doors

Plaintiff was concerned that she would

how to open them.

(L. Sackman Dep. at 24, 143-44.)

policy"

Plaintiff
[sic]

would damage

the

doors.

"was told by Nicole Campbell

not

form."

and

allowed,"

and

(icL at 44.)

"did

not

that

tell

at

22.)

Mr.

(Id.

"no,
at

additional

[Plaintiff]

43,

it was
144.)

locks

there

was

was

a

Ms. Campbell told Plaintiff that she would be

given a citation for each lock installed.7
Dep.

figure out

When Plaintiff

asked to install additional locks, Ms. Campbell said,
against

when

Sackman was

not

(Id. at 144; J. Sackman

present

during

the

exchanges

about the fence and locks.8

(Id. at 44, 144-45; J. Sackman Dep. at

9,

Sackman about

28.)

Plaintiff

Ms. Campbell left.
In

contrast,

told Mr.

the

Ms.

Campbell

According to Ms. Campbell,

fence

not

conversations

after

(L. Sackman Dep. at 147.)
states

that

for permission to change the fence or locks.
49.)

the

Plaintiff

never

asked

(Campbell Dep. at 45-

Plaintiff did make a comment about

extending around the garage

door,

but

"didn't

anything about Hannah" and never asked to change the fence.

say

(Id.)

6 Only one door, which led to the backyard, was enclosed by the fence.
(L. Sackman Dep. at 107-08.)
7 Mr. Sackman believed that the cumulative citations for locks on each
door would have led to eviction, (J. Sackman Dep. at 22) , but there is no
testimony that Ms. Campbell actually threatened eviction.

8 However,

Mr.

Sackman made a comment about a problem with the fence

latch earlier during the tour.
(Campbell Dep. at 44-45, 63.)
fixed the latch on April 2, 2012.
(L. Sackman Dep., Ex. 28.)

Balfour Beatty

Further,

there was

Although

there may be

events,

this

reasons

at all.

to question

(Id.

at 48.)

Plaintiff's version of

the Court may not make any credibility determinations at

juncture.

summary

"no discussion of locks"

For

judgment,

the

the

purpose of

Court

must

Balfour Beatty's

accept

Plaintiff's

motion

for

version

as

true.

At

the end of

accept the house.

the

keys

and

(hereinafter,

the March 3 0 meeting,
(Id.

signed

"Lease")

at 43-44.)

the
and

Resident

other

Beatty and Fort Gordon Housing,

Ex.

23).

Ms.

the Sackmans decided to
Campbell gave Mr.

Responsibility

documents

LLC.

on

behalf

(Id. at 42; L.

Sackman

Agreement
of

Balfour

Sackman Dep.,

Mr. Sackman gave Ms.

Campbell the money order and signed

the Lease and other documents.9

(Campbell Dep. at 42-44; L. Sackman

Dep.

at 133,

Ms.

Campbell

included in
Sackman Dep.,

he
The

& Ex.

23.)

indicated

an

alteration

the package of materials
Ex.

25.)

Mr.

signed and received.
process

that

was

"hurried"

given

request

to Mr.

form

Sackman.

was
(L.

Sackman did not read all the documents

(J.
and

Sackman Dep.
he

did

not

at

22-23,

think

35,

that

Campbell had time for him to read every single document.

he

38-39.)
or

(Id.

Ms.

at

9 By signing the Lease, Mr. Sackman agreed with Fort Gordon Housing LLC,
inter alia, that: (1) he accepted all existing locks as safe and acceptable,
(2) he would provide written notice of requests to install or modify locks,
(3) he would not add locks or make other alterations to the premises without
receiving written consent of Fort Gordon Housing LLC, and (4) Fort Gordon
Housing LLC would not be liable to him or his family members for damages,
injuries, or losses caused by defects, disrepair, and other causes.
(L.
Sackman Dep., Ex. 23 at 5, 7-8.)
By signing other documents, Mr. Sackman
agreed with Balfour Beatty, inter alia, that (1) he accepted the house and
would not be permitted a transfer absent a change in rank, change in family
size, or with approval by Balfour Beatty, and (2) he was responsible for
reading Balfour Beaaty's online Resident Guide.
(Id., Ex. 23 at 11-12.)

35.)

Mr.

Sackman

research procedures
accommodations.

did

not

get

on

Balfour

Beatty's

for requesting alterations,

(Id.

at

23-24.)

Plaintiff

website

modifications,

to
and

stated she was unaware

that she needed to submit a form to make changes to the fence or

locks and never saw Balfour Beatty's alteration request form.10
Sackman Dep.

at

44-47.)

Ms.

(L.

Campbell never mentioned the form to

Plaintiff during the meeting on March 30, 2012.

(Id. at 140-41.)

Neither

Plaintiff

a

written

request

nor

for

Mr.

Sackman

alterations,

relating to the locks or fence.

ever

submitted

modifications,

or

form

or

other

accommodations

(Id. at 48, 76; J. Sackman Dep. at

22-25.)

On

April

representative,

everything

was

3,

2012,

called

the

going.

Plaintiff does not

Dana

Wardell,

Sackmans

to

Sackman

Dep.

(L.

remember much about

indicated that Plaintiff said:

(1)

a

check

at

Balfour
in

and

68-75,

the call,

but

&

Beatty
see

Ex.

how

29.)

Ms. Wardell

everything was going well,

(2)

there were service requests at move-in which had been completed,
and

(3) there was no hot water.

(Id.)

Mr.

Sackman also submitted

a property condition report and asked Balfour Beatty to fix minor
problems

31.)

with

Balfour

carpeting and a medicine

Beatty

never

medicine cabinet problems.

cabinet.

fixed the hot water,

(Id.,

Exs.

26,

carpeting,

and

(Id. at 73-75.)

10 However, Ms. Campbell's March 2, 2012 email indicated that Plaintiff
should complete an "Alterations Form" if the assigned house did not have a
fence and Plaintiff wanted to build one.
(L. Sackman Dep. at 92-93, & Ex.
34.)
8

3. Events Leading up to Hannah's Drowning

In mid-April,
before

Hannah's

downhill.

(J.

about two weeks after moving in and two weeks

death,

Hannah

climbed

over

Sackman Dep. at 11-12;

L.

the

fence

and

headed

Sackman Dep. at 27-28.)

Plaintiff noticed and informed Mr. Sackman who immediately ran down
and caught her.

lake,

At that time,

both Hannah and Mr.

Sackman saw the

and Plaintiff was also informed about the lake.

Dep.

at 11-12;

not

try

to

L. Sackman Dep.

find

a

new

financially feasible.
About

two

days

at 22-23,

home

at

that

27-28.)
time

(J. Sackman

The Sackmans did

because

it

was

not

Plaintiff

and

Mr.

(J. Sackman Dep. at 20.)
before

Hannah's

death,

Sackman became aware that Hannah had figured out how to unlock the

exterior doors.
24.)

(J. Sackman Dep. at 21, 37; L. Sackman Dep. at 23-

They warned Hannah not to unlock the doors and planned to buy

door alarms on Sunday.11
Sackman Dep.

at

22.)

(L. Sackman Dep. at 24-25, & Ex. 19; J.
They

did

not

notify

Balfour

Beatty

that

Hannah had learned to unlock the doors or request modifications at

that time.

(L. Sackman Dep. at 24-25; J. Sackman Dep. at 37.)

On the evening of Saturday, April 28, 2012, Hannah eloped from
the

house

while

Plaintiff

was

Sackman and preparing dinner.
19,

21.)

and

that

(L.

a

conversation

Sackman Dep.

with

at 14-20,

Mr.

& Exs.

Plaintiff and Mr. Sackman noticed that she was missing
the

side

door

enclosed by the fence.

11

having

of
(Id.

the

garage

at 20-22,

was

& Exs.

open,
19,

which
21.)

was

not

Plaintiff,

A door alarm is a magnetic device that causes an alarm to sound

whenever the door opens.

(J. Sackman Dep. at 22.)

Mr. Sackman, and eventually neighbors and military police proceeded
to search the entire area for Hannah.

Exs. 58-59.)

(Id. , Exs. 19,

21;

Pi.' s

Tragically, on April 29, 2012, Hannah was discovered

in the lake, where she had drowned.

(Hignite Dep. at 97,

106-07.)

Thereafter, Balfour Beatty permitted and arranged for the Sackmans
to move to a new home in the Maglin neighborhood.

(Campbell Dep.

at 68-69.)

B.

Procedural History

On March 22, 2013,

of

Richmond

County,

Plaintiff filed suit in the Superior Court

Georgia.

On

removed the case to this Court.

May

(Doc. no.

Plaintiff filed an Amended Complaint,
under

the

claims
(Doc.

Fair

for
no.

summary

Housing

Act

negligence,
12.)

judgment

on

and

fraud,

Following
all

cross-motion

Beatty's

for

(Doc.

1.)

and

negligent

claims

(doc. no.

judgment

20.)

The

and

state

law

misrepresentation.

Balfour

summary

Beatty

which alleges federal claims

discovery,

no.

Balfour

On August 22, 2013,

Plaintiff's

of

partial

defenses.

2013,

Rehabilitation Act

moved to exclude Plaintiff's expert

a

1,

Beatty
(doc.

18).

on

no.

16)

for
and

Plaintiff filed

three

motions

moved

are

of

Balfour

briefed

and

ripe for adjudication.

II.

SUMMARY

JUDGMENT

STANDARD

Summary judgment is appropriate only if
dispute

as

judgment as

to

any

material

a matter of

law."

fact

and

Fed.

10

R.

the

"there is no genuine

movant

Civ.

P.

is

56(a).

entitled

to

Facts are

"material"

governing

if they could affect the outcome of

substantive

U.S. 242, 248

law.

(1986) .

Anderson v.

the suit under the

Liberty Lobby,

Inc.,

477

The Court must view the facts in the light

most favorable to the non-moving party, Matsushita Elec. Indus. Co.
v. Zenith Radio Corp.,

475 U.S.

justifiable inferences

Real

Prop.,

941

in

F.2d

[its]

1428,

574,

587

(1986),

favor."

1437

and must draw "all

U.S.

(11th

v.

Cir.

Four

Parcels of

1991)

(en

banc)

(internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court,
by

reference

to

materials

on

file,

the

Celotex Corp. v. Catrett, 477 U.S. 317,

basis

323

for

(1986) .

the

motion.

How to carry

this burden depends on who bears the burden of proof at trial.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

When the non-movant has the burden of proof

at trial,

the movant

may carry the initial burden in one of two ways — by negating an
essential element of the non-movant's case or by showing that there
is no evidence to prove a fact necessary to the non-movant's case.
See Clark v. Coats & Clark,

1991)
and

Inc.,

929 F.2d 604,

(explaining Adickes v. S.H. Kress & Co.,

Celotex

Corp.

v.

Catrett,

477

U.S.

317

606-08

398 U.S.

(1986)).

(11th Cir.

144

Before

Court can evaluate the non-movant's response in opposition,
first

consider

whether

the

movant

has

met

its

initial

(1970)
the

it must

burden

of

showing that there are no genuine issues of material fact and that

it is entitled to judgment as a matter of law.
Columbus,

120 F.3d 248,

254

(11th Cir.

11

1997)

Jones v. City of

(per curiam).

A mere

conclusory statement that the non-movant cannot meet
trial is insufficient.

Clark,

the burden at

929 F.2d at 608.

If — and only if — the movant carries its initial burden,

the

non-movant may avoid summary judgment only by "demonstrat[ing] that

there is indeed a material issue of fact that precludes summary

judgment."

trial,

Id.

When the non-movant bears the burden of proof at

the non-movant must tailor its response to the method by

which

the

movant

carried

its

initial

burden.

If

the

presents evidence affirmatively negating a material fact,
movant

"must

respond

with

evidence

sufficient

to

movant

the non-

withstand

a

directed verdict motion at trial on the material fact sought to be
negated."

Fitzpatrick,

2

F.3d

at

1116.

absence of evidence on a material fact,
show

that

ignored"

the

record

by the

contains

movant

or

the

movant

shows

an

the non-movant must either

evidence

"come

If

that

was

"overlooked

forward with additional

or

evidence

sufficient to withstand a directed verdict motion at trial based on

the alleged evidentiary deficiency."

Id. at 1117.

The non-movant

cannot carry its burden by relying on the pleadings or by repeating
conclusory allegations contained in the complaint.
Ross,

663

F.2d 1032,

1033-34

(11th Cir.

1981).

See Morris v.

Rather,

the

non-

movant must respond with affidavits or as otherwise provided by
Federal Rule of Civil Procedure 56.

In this action, the Clerk of the Court gave the parties notice
of

the

summary

motions
judgment

for

summary

rules,

the

judgment
right

12

to

and
file

informed

them

affidavits

or

of

the

other

materials
nos.

in opposition,

17, 25.)

Wainwright,

and the consequences of default.

Therefore,

(Doc.

the notice requirements of Griffith v.

772 F.2d 822,

825

(11th Cir.

1985)

(per curiam), are

satisfied.

III.

BALFOUR BEATTY'S MOTION FOR SUMMARY JUDGMENT

A. Fair Housing Act Claims
Reasonable Modification

I.

Plaintiff
3604(f)(3)(A),

alleges

Balfour

Beatty

violated

when its employee, Ms. Campbell,

42

U.S.C.

§

refused Plaintiff's

request to modify the locks and fence at her own expense.

Under

the Fair Housing Act ("FHA"), unlawful discrimination includes:

a refusal to permit, at the expense of the handicapped
person, reasonable modifications of existing premises
occupied or to be occupied by such person if such
modifications may be necessary to afford such person full
enjoyment of the premises except that, in the case of a
rental, the landlord may where it is reasonable to do so
condition permission for a modification on the renter

agreeing to restore the interior of the premises to the
condition
that
existed
before
the
modification,
reasonable wear and tear excepted.
42 U.S.C.

§ 3604 (f) (3) (A) .

To prevail on a section 3604(f)(3)(A) claim, a plaintiff must

establish
meaning

that

of

premises,

modification

the
(3)

was

(1)

she

is

disabled

FHA,

(2)

such

modification

necessary

she

to

or

requested
was

afford

her

handicapped
a

within

modification

reasonable,

full

of

(4)

enjoyment

the
the
such

of

the

premises, and (4) the defendants refused to permit the modification
to be made at plaintiff's expense.
13

Cf. Schwarz v. City of Treasure

Island,

544

reasonable

F.3d

1201,

accommodation

necessity); Hawn v.

Appx.

1219

464,

467

(11th

claim

are

Cir.

refusal,

2d 1337,

between

(elements

reasonableness,

Shoreline Towers Phase 1 Condo. Ass'n,

(11th

Cir.

2009)

(expanding

reasonable accommodation claim); Weiss v.

Supp.

2008)

1344-45

reasonable

(S.D.

Fla.

2013)

on

of

and

347 Fed.

elements

2100 Condo. Ass'n,

of

941 F.

(highlighting distinctions

modification and accommodation

claims).

Here,

Balfour Beatty does not contest that Hannah was handicapped within
the meaning of

the

FHA or that

reasonable and necessary.

the modifications

Rather,

requested were

Balfour Beatty challenges

sufficiency of Plaintiff's request.

the

(Doc. no. 16 at 11-13.)

Under the FHA, "a resident or an applicant for housing makes a
reasonable

housing

modification

provider

structural

that

change

to

request

she

the

is

whenever

she

requesting

premises

makes

clear

permission

because

of

her

to

to

make

the

a

disability."

Joint Statement of the Department of Housing and Urban Development
and the Department of Justice on Reasonable Modifications under the

Fair

Housing

Statement") .12
a

Act,

at

9

2,

2008)

(hereinafter,

"Joint

The FHA "does not require that a request be made in

particular manner or at

disability

(March

need

not

a

particular

personally

make

the

time.

A person with a

reasonable

modification

12 Policy statements made by federal agencies lack the force of law and
do

not

warrant

Chevron-style

deference,

but

are

entitled

to

respect

if

persuasive.
Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000); see also
Weiss,
941 F. Supp.
2d at 1345-46
(citing to the Joint Statement as
persuasive authority); Solodar v. Old Port Cove Lake Point Tower Condo.
Ass'n, Inc., No. 12-80040-CIV, 2012 WL 1570063, at *7 (S.D. Fla. May 2, 2012)
(same); Bhogaita v. Altamonte Heights Condo. Ass'n, No. 13-12625, 2014 WL
4215853, at * 6 & n.3 (11th Cir. Aug. 27, 2014) (citing DOJ and HUD's Joint
Statement on Reasonable Accommodations as persuasive).
14

request;

the request can be made by a family member or someone else

who is acting on her behalf."13
Importantly,
requirement

in

the

See Schwarz v.

Cir.

2 008).

the

Id.

Eleventh

context

of

Circuit
a

has

reasonable

City of Treasure Island,

In Schwarz,

544

discussed

the

request

accommodation

claim.14

F.3d 1201,

1219

(11th

the Eleventh Circuit explained that "the

duty to make a reasonable accommodation does not simply spring from
the

fact

made."

that
Id.

the

handicapped person wants

(quotations

omitted).

such an

"Defendants

accommodation

must

instead have

been given an opportunity to make a final decision with respect to

Plaintiffs'
conduct

a

request,
meaningful

which

necessarily

review

of

the

includes

requested

the

ability

to

accommodation

to

determine if such an accommodation is required by law."

id.

"In

other words, the [defendant] cannot be liable for refusing to grant
a

reasonable

and necessary accommodation

knew the accommodation was

omitted).

in

fact

if

the

[defendant]

necessary."

Id.

never

(quotations

"[T]his means that the defendant must know or reasonably

be expected to know of the existence of both the handicap and the

necessity of

the

(emphasis added);

accommodation."

Hawn,

accord United States v.

347

Fed.

Appx.

at

467

Hialeah Hous. Auth.,

418

13 Balfour Beatty concedes "that no 'particular manner' is required for
a request," but modification

claim

in sharp contradiction - goes on to argue that Plaintiff's
fails

as

a

matter

of

law because

of

her

failure

to

use

Balfour Beatty's established, formal procedures for requesting modifications.
(Doc.

no.

34 at 4-5. )

14 Although there are distinctions between reasonable modification and
accommodation claims,
which
is
(f) (3) (B)

the request requirement stems from the word "refusal,"

present
in both
(accommodation) .

discussing the

subsections
Thus,
the

sufficiency or a

request

3604(f)(3)(A)
(modification)
and
Court
concludes
that
FHA
cases

for a

reasonable accommodation are

equally applicable in the reasonable modification context.
15

Fed.

Appx.

specific

872,

enough

876

(11th

to

the

of

disability

the

circumstances

[landlord]

to

the

understand

to

must

at

make

duty

a

and

least

be

("[F]or

to

an

sufficient

inquiries

in a manner that
for

demand

provide

for

a

to

be

reasonable

to

at

cause

the

10

a

or

reasonable

possible

need

("[T]he requester

a reasonable person would

permission

change because of a disability.").

accommodation,

about

Joint Statement,

request

a

have enough information to know

desire

appropriate

request
be

the

defendant must

for an accommodation.");
must make

2011)

trigger

accommodation,
both

Cir.

to

make

"Simply put,

a

structural

a plaintiff must

actually request an accommodation and be refused in order to bring
a reasonable accommodation claim under the FHA."
at

Schwarz,

544

F.3d

1219.

Here,

there

is

a

genuine

dispute

request for modification was made.
49, with L.

of

fact

as

to

whether

a

(Compare Campbell Dep. at 45-

Sackman Dep. at 43-44, 47,

138-44.)

On February 29,

2012, Plaintiff informed Balfour Beatty via email that her daughter
was autistic and considered a flight risk.

(L.

33.)

Balfour

received

(Id.)

At the March 30, 2012 meeting, Ms. Campbell knew that two of

Plaintiff's
risk.

Beaty's

children

(Campbell Dep.

the fenced area,

agent,

were
at

autistic
63-64.)

Plaintiff told Ms.

not going to be acceptable.
(L. Sackman Dep.

Ms.

at 138-39.)

Campbell,

and
As

that

the

Sackman Dep.,

Hannah

that

was

a

Ex.

email.

flight

children were exploring

Campbell,

"this fence height is

My daughter is taller than the fence."
Plaintiff "asked,

16

can we change this,

can I -- we need to get this changed,
policy,

140.)

that

this

was

standard on

Plaintiff "asked,

build our own fence,

and she said that's not our

all

of

and she said no."

. . .

houses."

(id.

can I -- can we have our own fence,
(Id.)

that it didn't wrap around the side door,

wrapped around.

the

at

can we

Plaintiff also "said

and I needed that to be

She said no, we could not change that. . . .

She said it was against policy."

(Id. at 141.)

Plaintiff then brought up the locks as soon as they went back

inside.

(Id^ at 143.)

a

follow

up

well,

then."

asked,

"What did you tell her you needed?"

Campbell,

In

"said,

locks,

Ms.

(Id.)

Plaintiff

I need additional

question,

defense

(Id.)

counsel

Plaintiff told

"I needed something higher up so my daughter would

not have access to it."

(Id.

(emphasis added))

Ms. Campbell said,

"no, that they could not provide additional locks because it would

cause damage on the door."
to tell

(Id. at 144.)

Ms. Campbell "proceeded

[Plaintiff] for each lock would be a citation."

Viewed in the light most favorable to Plaintiff,

is sufficient to show that

because of Hannah's

(1)

(Id.)

this evidence

Plaintiff requested a modification

disability,

(2)

Balfour

Beatty

was provided

sufficient information to allow for meaningful review and determine

if the requested modifications were reasonable and necessary in
light of
permit

Hawn,

Hannah's

disability,

and

the requested modification.

347 Fed. Appx.

Midland Brake,

Inc.,

at 467;
a

Div.

(3)

Balfour Beatty refused

See Schwarz,

Joint Statement,
of

Echlin,

17

Inc.,

544

F.3d at

to

1219;

at 9-10; cf. Smith v.
180

F.3d

1154,

1172

(lOth Cir.
mention

1999)

the

(plaintiff may use "plain English" and need not

ADA or

use

the phrase

"reasonable

accommodation"

to

convey a request for reasonable accommodation under the ADA).15

Balfour

Beatty

necessity.16

Yet,

argues

that

it

was

given

these

evidence

Plaintiff informed Balfour Beatty,

that Hannah was autistic and a flight risk,
aware of

no

facts at

and Ms.

via email,
Campbell was

the time Plaintiff asked for modifications

to the fence and locks.

Plaintiff mentioned Hannah in discussing

the need for a higher fence and expressly told Ms.
she "needed" locks that were higher up "so that
have access" to them.

of

Campbell that

[Hannah] would not

There is at least a question of fact as to

whether Balfour Beatty knew or could reasonably be expected to have

known

of the existence of the handicap

modification.

Hous. Auth.,
reasonable

See

Hawn,

and

347 Fed. Appx.

418 Fed. Appx.
accommodation

at 876-77

under

the

the necessity of the

at 467;

see also Hialeah

(sufficiency of request for
FHA

is

generally

a

jury

question).

Balfour Beatty also tries to shift focus from the sufficiency
of the requests that were actually made by Plaintiff to additional

actions which Plaintiff could have taken to repeat her requests or

formally submit them in writing.17

(Doc. no. 16 at 12-13; Doc. no.

15 As the ADA and FHA share certain concepts, the Court may look to ADA
caselaw for guidance.

Schwarz,

544 F.3d at 1220.

16 The Court notes that Balfour Beatty has not argued that Plaintiff was
required to offer to pay for the modifications as part of her request or that
Plaintiff failed to do so.
address

As this issue was not briefed,

the Court will not

it.

17 The appropriate focus is on the sufficiency of the requests that were
actually made and whether they gave Balfour Beatty an opportunity to conduct
18

34 at 4-5.)
portion

For example,

of

-

required

a

as

alteration

footnote

a

in

matter

request

Balfour

Schwarz,

of

form

Beatty,

law

-

(as provided

selectively quoting a

argues

to

that

submit

in

the

Plaintiff

Balfour

move-in

was

Beatty's

packet)

or

modification and accommodation request form (as provided online and

at its Fort Gordon office).
to use

the

formal,

According to Balfour Beatty, "failure

existing system for requesting a modification

defeats any claim that Balfour Beatty 'refused' to make a requested
modification."

First,
that

the

formal

(Doc. no. 34 at 5.)

the statutory

request

be

made

The Court disagrees.

text does not contain
in

writing;

nor

does

any
it

requirement

include

other

requirements or procedural exhaustion requirements.

3604(f)(3)(A);

advisable

to

see

make

misunderstandings,
consideration

to

also

Joint

Statement

modification
"housing
reasonable

at

requests

providers

10

(Although

in

writing

must

give

modification

See

requests

to

it

§
is

prevent

appropriate
if

even

the

requester makes the request orally or does not use the provider's

preferred forms or procedures for making such requests."
added));

cf. Hialeah Hous.

matters

under

request,

but

the

ADA

whether

are

the

Auth.,
not

418

Fed.

formalisms

[plaintiff]

Appx.

about

provides

at

(emphasis

876

("[W]hat

the

manner

the

employer

enough information that, under the circumstances,

of

the

with

the employer can

a meaningful review.
The fact that Balfour Beatty refused Plaintiff's
request without actually conducting a meaningful review or asking for
additional information (according to Plaintiff's testimony) is irrelevant to
the sufficiency of the request made.

19

be fairly said to know of both the disability and desire
accommodation."
F.3d 296,

313

Second,

Eleventh

(quoting

(3d Cir.

Taylor

Phoenixville

Sch.

Dist.,

184

1999)).

the Schwarz

Circuit

v.

for an

noted

footnote does not control

that

there is a local procedure

"[s]everal

courts

this case.

have

(such as a variance

held

process)

The

that

through

which the plaintiffs can obtain the accommodations they want,
must use
filing

suit

2003);

(8th Cir.
1230,

they

that procedure first and come away unsatisfied prior to
in

federal

court."

Schwarz,

544

(citing Tsombanidis v. W. Haven Fire Dep't,
Cir.

if

Oxford House-C v.

1996);

1233

Schwarz,

St.

United States v. Vill.

(7th

Cir.

involved

municipalities

City of

Each

reasonable

based

generally held that,

1994)).

on

F.3d

352

Louis,

the

(2d

F.3d 249,

77

253

in the zoning context,

111.,

cited

37 F.3d

cases,

claims

restrictions.

n.ll

578

of Palatine,
of

1219

F.3d 565,

accommodation

zoning

at

The

like

against

cited

cases

an FHA plaintiff must

actually apply for a variance or special use permit and be denied
for there to be a "refusal" to accommodate.

not

involve

restrictions.

a

request

The

Court

for
is

The present case does

accommodation

reluctant

to

based

extend

on

those

zoning

cases

and

engraft a requirement that all housing residents or applicants must
use

the

forms

reasonable

itself

provided

modification,

imposes no

restraint,

by

the

housing

especially when

such requirement.

provider
considering

Moreover,

to

request

that

the

a
FHA

in an exercise of

the Eleventh Circuit declined to adopt the reasoning set

20

forth in the cases it cited.
argue

that

there

plaintiff],

and,

were

Id.

any

("But here the City does not

local

therefore,

we

procedures

have

no

available

occasion

to

to

[the

address

the

matter.").

In addition,
that

the

Balfour Beatty complains,

request

was

made

to

a

at

"low-level

least initially,
employee"

authority to make a decision on the modification.

12-13.)

Balfour

Beatty

clarifies

in

its

without

(Doc. no.

reply brief

16 at

that

"Ms.

Campbell's lack of authority is a defense under the Rehabilitation

Act, not a defense under the [FHA]."18
In sum,

factual
The

the Court concludes that there are

genuine,

material

disputes as to the sufficiency of Plaintiff's requests.

Court

request

(Doc. no. 34 at 3.)

rejects

was

Balfour

required

Beatty's

as

a

arguments

matter

of

that

law.

a

more

The

formal

reasonable

modification claim will proceed to trial.
Reasonable Accommodation

2.

Plaintiff also alleges that Balfour Beatty violated the FHA by
refusing

to

make

handicap

discrimination

accommodations

in

reasonable

accommodations.

includes

rules,

"a

policies,

refusal

Under
to

practices,

or

make

the

FHA,

reasonable

services,

when

such accommodations may be necessary to afford such person equal
opportunity

to

3604(f)(3)(B).

use
"To

and

enjoy

prevail

on

a
a

dwelling."

section

42

3604(f)(3)(B)

U.S.C.

§

claim,

a

18 The Court notes that Ms. Campbell had authority to sign the Lease and
other documents on the behalf of Balfour Beatty and Fort Gordon Housing,
(See L. Sackman Dep., Ex. 23.)
21

LLC.

plaintiff must establish that
within

the

meaning

accommodation,
an

(3)

opportunity

of

the

(1)

FHA,

[she]
(2)

is disabled or handicapped

[she]

requested a

reasonable

such accommodation was necessary to afford [her]

to

use

and

enjoy

[her]

dwelling,

and

Fed.

Appx.

request

at

a

467.

Balfour Beatty argues

reasonable

accommodation.

the

Hawn,

defendants refused to make the requested accommodation."

(4)

347

that
this

On

Plaintiff did not
claim,

the

Court

agrees.

Plaintiff predicates her reasonable accommodation claim on her
requests to alter the the fencing and locks.
Those requests,

however,

The plain language of
"rules,

policies,

were for modifications,

§ 3604(f)(3)(B)

practices,

3604(f)(3)(A)

refers

Reading

provisions

these

to

or

modifications

in

classified

accommodation.
v.

Fagundes v.

(N.D.

Cal.

05-1893,
Rodriguez
(S.D.N.Y.

a

661

941 F.

Charter Builders,

Jan.

2006
v.

29,

WL
551

1998));

reasonable

2008);

2473464,
W.

157th

*4

St.

is

22

in
§

premises."

have

repeatedly

258-61

(E.D.N.Y.

Corp.,
at 6

Aug.
992

25,

F.

at *6

Ass'n,

made

No.

2006);

Supp.

("Under the

change

an

2009);

2008 WL 268977,

Wash.

structural

than

(citing Reyes

Westboro Condo.

(W.D.

Owners

a

existing

modification

C07-1111,

see also Joint Statement,

modification

contrast,

Supp. 2d at 1344

Thompson v.

at

In

courts

for

2d 249,

Inc.,

accommodations

repair or renovation are more

requests

F. Supp.

to

"of

conjunction,

as

E.g., Weiss,

Fairfield Props.,

refers

29 at 11.)

not accomodations.

services."

found that requests for construction,

appropriately

(Doc. no.

385

[FHA],

to

the

premises whereas a reasonable accommodation is a change, exception,
or adjustment to a rule, policy, practice, or service.").

Here, Plaintiff requested to increase the height of the fence,
extend the fence,

build her own fence,

and install additional locks

onto the doors.

These are requests to modify the premises, not to

accommodate

rule,

Beatty.

any

policy,

practice,

or

service

of

Balfour

Further, Plaintiff has not presented evidence of any other

request which could be classified as a request for accommodation.

Thus, Balfour Beatty is entitled to summary judgment on Plaintiff's
reasonable accommodation claim.
3.

Intentional

Interference

Plaintiff also alleges that Balfour Beatty violated 42 U.S.C.
§ 3617,

which states:

It shall be unlawful to coerce,

intimidate,

threaten,

or

interfere with any person in the exercise or enjoyment
of, or on account of his having exercised or enjoyed, or
on account of his having aided or encouraged any other
person in the exercise or enjoyment of, any right granted
or protected by section 3603,

3604,

3605,

or 3606 of this

title.

42 U.S.C. § 3617.
show that

(2)

she

she is a member of a protected class under the FHA,

was

protected
exercise

(1)

To prevail on a § 3617 claim, the plaintiff must

engaged

the

the

by

in
or

aided

such

FHA

rights,

(3)

exercise
or

the

or

enjoyment

encouraged

defendant

of

another

coerced,

a

right

person

to

threatened,

intimidated, or interfered with the plaintiff's exercise of her FHA

rights,

and

discriminate.

(4)

defendant

was

motivated in part by an

E.-Miller v. Lake Cnty. Highway Dep't,

23

intent

to

421 F.3d 558,

563

(7th Cir.

151544,

at

2005);

*37

Pinellas Cnty.,

Baggett

(N.D.

Ga.

v.

Baird,

No.

4:94-cv-282,

Feb.

18,

1997);

see

931 F.2d 718,

722

(11th Cir.

WL

Sofarelli

also

1997

v.

1991)

(to prevail

under § 3617, a plaintiff must establish that discriminatory intent
"played some role" in the defendant's actions).

The

first

autism,

is

two

elements are undisputed.

considered

handicapped

under

Hannah,

the

FHA,

due

and

to her

Plaintiff

exercised a right protected by § 3604 (or aided Hannah in doing so)
by requesting a

reasonable modification of

Balfour

however,

Beatty,

argues

that

there

interference or intentional discrimination.
According

to

Plaintiff's

the

testimony,

fences

is

no

and

locks.

evidence

of

The Court disagrees.
Ms.

Campbell

denied

Plaintiff's request to modify the fence and locks and threatened to
issue a citation for each lock that the Sackmans installed.

This

conduct may constitute a threat or interference within the meaning
of the statute.

Section 3617 "does not require a showing of force

or violence for coercion,

give rise to liability."

Supp.

2d

liability
provide

1110,

1122

insurance

housing

to

Sixth,

determining that

intimidation,

or threats to

See Nevels v. W. World Ins.

(W.D.

Wash.

constituted
mentally

Metcalf 56 Homes Ass'n,

(reviewing

interference,

2004)

interference

with

disabled persons);

385 F. Supp.

Seventh,

(threatening

and

2d 1137,

Ninth

see

1143

Circuit

Co.,

359 F.

to

cancel

ability
also

(D.

to

King v.

Kan.

opinions

2005)

and

"interference" under § 3617 reaches a broad range

24

of conduct and does not require egregious acts such as firebombing,
cross burning, or physical assault).
In

order

discrimination,
a

to

the

fourth

element,

Plaintiff "may establish that

discriminatory

circumstantial

prove

intent

evidence,

either
or

[Balfour Beatty]

directly,

indirectly,

intentional

through

through

the

had

direct

or

inferential

burden shifting method known as the McDonnell Douglas test."

E. -

Miller,

the

421

F.3d

at

563.

As

discussed

in

relation

to

reasonable modification claim, it can be inferred that Ms. Campbell
was aware that Plaintiff's requests to modify the fence and locks

were directly related to Hannah's autism and flight risk.
Ms.

Campbell

was

aware

that

tenants

with

disabilities

right to reasonable modifications under the FHA.
16-18.)
denied

And

according

Plaintiff's

threatened

to

installed.

request

issue

This

to Plaintiff's

is

a

sufficient

for

evidence

for

Ms.

fence

each

have

the

(Campbell Dep. at

testimony,

to modify the

citation

Further,

and

lock
a

Campbell
locks

the

and

Sackmans

rational

trier

of

fact to infer discrimination, and Balfour Beatty does not provide a
legitimate, nondiscriminatory reason for Ms.
threat

to

issue

Montgomery Cnty.,

(whether
deficiency

citations.
Md.,

defendants
letter,

See

823 F. Supp.

conducted
and

held

"requires

a

determination

defendants

in

engaging

in

a

of
the

a

Potomac
1285,

the

in

Home

1301

Corp.

(D. Md.

inspection,
violation

subjective

challenged

25

Grp.

1294,

surprise

hearing

Campbell's denial and

of

intent

actions,"

and

v.

1993)

sent

a

§

3617

of

the

"will

in

large part be based upon the credibility of the witnesses at trial,

and cannot be resolved by way of defendants'

motion

judgment");

60,

1996)

Byrd v.

Brandeburg,

922

F.

Supp.

for summary

64

(N.D.

Ohio

(discrimination inferred under § 3617 where defendants failed

to articulate a nondiscriminatory reason for the actions taken).
Balfour

Beatty

argues

that

Plaintiff

Campbell had no intent to discriminate.

3.)

has

admitted

(Doc. nos.

that

Ms.

16 at 11; 34 at

However, the cited page of Plaintiff's deposition reveals only

that Plaintiff believed Ms. Campbell forgot to tell Plaintiff about

the alteration request form because Ms.

Campbell was "overwhelmed"

by the children and "wanted to get out of there."
at 142.)

The Court makes a few observations.

(L. Sackman Dep.

First,

the fact that

Ms. Campbell was "overwhelmed" by two autistic children and "wanted

to

get

out

of

discriminatory

there"

animus.

is

not

Ms.

necessarily

Campbell

Plaintiff for making the request.
that Ms.

Campbell may have

was

inconsistent

with

"irritated"

with

also

(Id. at 145.)

forgotten to

tell

Second,

Plaintiff

the fact
about

the

available forms does not somehow negate Plaintiff's testimony that
Ms.

Campbell

threatened

denied

for

mitigate Hannah's flight risk.

Ms.

in

cite

reasonable

Plaintiff

lapse

to

the

memory

regarding

the

modification

lock

requests

modifications

needed

and
to

Campbell's purportedly passive
forms

is

not

a

legitimate,

nondiscriminatory reason for actively denying the modifications and

threatening to cite the Sackmans.
position

is

that

she

never

even

26

Further,
spoke

with

Ms.

Campbell's actual

Plaintiff

about

the

fence

and

locks

modification

and

or

never

actually

threatened

denied

citation.

any

request

Plaintiff

testified

otherwise.

This is the central dispute of fact in this case.

jury

to

were

Campbell,

resolve

that

conflict

of

testimony

it might likewise conclude that Ms.

for

If a

against

Ms.

Campbell acted with

discriminatory animus.
In

sum,

preclude

there

are

resolution

genuine

of

disputes

Plaintiff's

§

of

material

3617

claim

fact

on

that

summary

judgment.
B.

Rehabilitation Act Claim

To support

must

her claim under the Rehabilitation Act,

that

establish

assistance."

Plaintiff

financial

Balfour

Beatty

receives

"federal

The relevant provision states:

No otherwise qualified individual with a disability . . .
solely by reason of her or his disability,
be
shall,
excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance or under
any program or activity conducted by any Executive agency
or by the United States Postal Service.
29

U.S.C.

§ 794(a)

(emphasis

financial assistance has

added).

As

the

receipt

"jurisdictional implications,"

considered prior to delving into the merits of
v.

Sch.

Bd.

of

aff'd 480 U.S.

The

Nassau Cnty.,
273

statute

aid of any kind."
However,

"when

772

F.2d

759,

of

it must be

the claim.

762

federal

(11th Cir.

Arline
1985),

(1987).

"applies

Id.
the

to

programs

receiving

(emphasis in original)
federal

government

27

federal

financial

(citation omitted).

makes

payments

for

obligations incurred as a market participant such payments do not
constitute

*federal

assistance'

assistance.'"

contemplates

Id.

"[T]he

loans

or

grants,

term

xfinancial

subsidies

without

reciprocal services or benefits."

Leskinen v. Utz Quality Foods,

Inc. , 30

Md.

F.

Supp.

2d

(4th Cir. 1998).
the

federal

530,

1995

498

WL

government

238338,

(11th Cir.

F. Supp.

1008

does

not

1998),

aff'd

constitute

Jones v. Ala.

at

1996);

1004,

(D.

165

F.3d

911

Merely entering into a procurement contract with

financial assistance.
S,

534

*19

(N.D.

receipt

Power Co.,

Ala.

Jan.

3,

No.

of

CV-94-PT-0094-

1995),

aff'd 77

see also Squire v. United Airlines,

(D. Colo. 1997)

federal

F.3d

Inc.,

973

("Simply engaging in a contract

for services with the government does not entail receipt of federal
funds" for Rehabilitation Act purposes.).

Indeed,

the applicable

federal regulations specifically exclude procurement contracts from
the

definition

56.3(b).

of

federal

Further,

the

financial

regulations

assistance.

state

that

See

32

contracts

C.F.R.

or

§

other

arrangements by which the

federal government makes available real

property

through

constitute

only

the

if

a

lease

lease

is

reduced consideration."

Here,
non-party)

the

"for
Id.

less

than

fair

financial

market

assistance

value

or

for

§ 56.3 (b) (3) (i) .

record shows

owns

federal

that

and operates

the

(1)

Fort Gordon Housing,

subject

housing at

Fort

LLC

(a

Gordon,

possibly under a fifty-year lease with the Department of the Army;
(2)

the Department of the Army holds a 90% interest in Fort Gordon

Housing,

LLC

and

Balfour

Beatty

28

Communities,

LLC

holds

a

10%

interest;

(3)

the Department of the Army made an initial equity

contribution in forming Fort Gordon Housing,

Housing,

LLC;

(4)

Fort Gordon

LLC receives income through rents paid by tenants,

includes

the

receive;

Basic

Allowance

of

Housing

that

the

which

servicemen

(5) Fort Gordon Housing, LLC put out a bid and contracted

with Balfour Beatty Military Housing Management,
property management

services at Fort Gordon;

LLC to provide

(6)

Balfour Beatty

Military Housing Management, LLC receives property management fees
from Fort Gordon Housing, LLC;
provides property management

(7) Balfour Beatty Communities, LLC

services at Fort Gordon;

(8)

as the

parent of Balfour Beatty Military Housing Management, LLC,

Balfour

Beatty Communities, LLC ultimately receives the property management
fee income from Balfour Beatty Military Housing Management,
and

(9)

Balfour Beatty Communities,

net income of Fort Gordon Housing,
Hignite Dep. at 20-21,

Plaintiff

has

LLC also receives

LLC.

(See Cohn Decl.

of

the

HH 5-9;

32-33.)

not

provided

sufficient

Balfour

Beatty

receives

meaning

of

Rehabilitation Act.

the

10%

LLC;

federal

financial

facts

to

assistance

Rather,

the

show
within

record

that
the

evidence

indicates that Balfour Beatty provides property management services
to

the

through

federal

a

government

procurement

government

participant,

is

not

paying

and

receives

contract.
for

In

fees

this

obligations

for

context,

incurred

providing financial assistance.

extent that Fort Gordon Housing,

those

services

the
as

federal

a

market

Further,

to the

LLC has executed a lease with the

29

federal government at Fort Gordon,

Plaintiff has not shown that the

property is being leased at less than fair market value.

Plaintiff

demonstrated

that

Balfour

Beatty

Nor has

Communities,

LLC

acquired its 10% interest in Fort Gordon Housing, LLC in a manner
that would constitute receipt of federal financial assistance.

In

sum,

federal

there

financial

entitled

to

is no

evidence

assistance.

summary

judgment

that

Balfour

Therefore,
on

Beatty

Balfour

Plaintiff's

receives

Beatty

Rehabilitation

is
Act

claim.

C. Negligence

Plaintiff

Compl.

advances

H 52-53.)

various

negligence

theories.

"To state a cause of action for negligence in

Georgia, the following elements are essential:
conform

to

protection

breach

of

a
of

standard
others

this

(See Am.

of

conduct

against

standard;

raised

unreasonable

(3)

a

(1) a legal duty to

by

the

risks

legally

of

law

for

harm;

attributable

connection between the conduct and the resulting injury;

(2)

the
a

causal
and (4)

some loss or damage flowing to the plaintiff's legally protected
interest as a result of the alleged breach of the legal duty."
Bradley

Ctr.,

Inc.

(quotation omitted).

v.

Wessner,

250

Ga.

199,

200,

296

(1982)

Balfour Beatty argues that Plaintiff has not

established a legal duty or breach and that the claim fails because
the lake was an open and obvious hazard.
34 at 9-10.)

30

(Doc.

nos.

16 at

18-19;

As

to

duty

and

standard

of

care,

Plaintiff

cites:

(1)

the

general duty to exercise reasonable care as an ordinarily prudent
person

(O.C.G.A.

§

51-1-2),

(2)

the

owners and occupiers of land (O.C.G.A.
of

care

applicable

Plaintiff

to

to

attempts

landlords

establish

through her expert's

opinions

duty

of

and

§

(3)

44-7-14) .

applicable

(Doc. no.

to

the duty
Further,

standard of

through public

Balfour Beatty made regarding safety.

applicable

§ 51-3-1), and

(O.C.G.A.

the

care

care

representations

29 at 17-19, & Ex.

1 at 24-26.)

Balfour

standard of

Beatty

care.

was

required

Where

a

control over the premises,
same

duties

Realty,

Inc.,

as

a

254

comply

the

landlord

property manager undertakes

complete

App.

See

311,

Corp. v. Demps, 191 Ga. App. 21, 22

O'Connell

313

v.

(2002);

(1989).

a rental agreement with Fort Gordon Housing,
managed the property,

with

the property manager is subject to the

landlord.

Ga.

to

Cora

Thomas

Equity

Total

Bett

Mgmt.

Here,

Plaintiff signed

LLC.

Balfour Beatty

and there is evidence showing that Balfour

Beatty assumed complete control and responsibility for management

of the Sackmans' house.19
8-9.)

Thus,

the Court

care is that of a

(See Hignite Dep. at 32-37; Cohn Decl. HH
concludes that the applicable

standard of

landlord.20

Balfour Beatty has not argued otherwise.

20 As set forth infra,

the Court excludes the testimony of Plaintiff's

expert as unreliable and unhelpful for the trier of fact.
Consequently,
Plaintiff may not rely on the expert's opinions to establish the standard of
care.
Also, Plaintiff has not provided any authority showing that a standard
of care may be created through public representations.
Further,
the
Plaintiff (general

Court rejects the other standards of care
standard and landowner standard) because the
31

cited by
landlord-

A landlord "is not an insurer of his tenant's safety," but "he
certainly is not a bystander."

Demarest, 201 Ga. App. at 92.

The

landlord "must keep the premises in repair" and "is responsible for

damages

.

repair."

.

.

arising

O.C.G.A.

§§

from

the

44-7-13,

failure

-14.

to

keep

the landlord may not avoid

not

landlord's

the

duty

to

O.C.G.A.

§ 44-7-2 (b) (1)- (2).

liable

damages

resulting

from

(and the tenant may

repair

liability.
for

in

If the rental property is a

"dwelling place,"
waive)

the premises

its

or

the

resulting

Although "a landlord is
failure

to

keep

rented

premises in repair," the landlord's "liability only attaches upon a

showing of notice."
102,

103

(2003).

Haynes v. Kingstown Props.,
In regards to notice,

can be actual or constructive."

Ga.

App.

"knows,

174,

178-79

or in the

(1974)

Id. ;

(Duty

"[t]he required knowledge

see also Warner v. Arnold,

to

repair

applies

exercise of ordinary care ought

tenant standard is directly applicable to this case.

1, a landlord has a
invitees and tenants,

Inc., 260 Ga. App.

duty to exercise
but this duty to

if

133

landlord

to know,

Under O.C.G.A.

of a

§ 51-3-

ordinary care to avoid injury to
"keep safe portions of the leased

premises designated as common areas in which the
qualified right of possession, does not extend to

landlord has reserved a
the leased areas of the

premises over which the tenant has exclusive possession and control."
Gale
v. N. Meadow Assocs. Joint Venture, 219 Ga. App. 801, 802-03 (1995) .
Here,
there were no "common areas" on the premises.
The entire home - including
the allegedly defective locks and fence - was leased to the Sackmans.
And
the lake was not owned by Balfour Beatty.
Consequently, only the landlord
standard of care (O.C.G.A. § 44-7-14) applies. See Plott v. Cloer, 219 Ga.
App. 130, 131 (1995)
(u[W]here, as here, the owner has fully parted with
possession by rental or lease his liabilities are measured by (O.C.G.A. § 447-14), (O.C.G.A. § 51-3-1) having no application."); Demarest v. Moore, 201
Ga. App. 90, 92 (1991) (applying § 44-7-14 to landlord who allegedly failed
to provide sufficient locks).
Thus, the Court focuses on the landlord's
limited duty to repair under § 44-7-14 and Plaintiff's claim that Balfour
Beatty was negligent by failing to make or allow reasonable repairs.
(See

Am.

Compl.

U^

52

(g)-(h)).

The

Court

summarily

rejects

Plaintiff's

negligence theories that do not rely on, and are inconsistent with, the
landlord standard of care, such as Plaintiff's theory that Balfour Beatty
negligently failed to warn the Sackmans about the lake.
32

possibly

dangerous

situation.").

"Accordingly,

if

receives notice that the premises are not in repair,

the

landlord

it has a duty

to inspect and investigate in order to make such repairs as the
safety of

the

tenant requires."

(quotations omitted).
tenant]

for damages

Haynes,

"[The landlord]
caused by its

260 Ga.

therefore,

failure

to

see also Warner,

whether landlord had notice,

133 Ga. App.

at

103

is liable to [the

exercise

care in repairing a known dangerous condition."

original);

App.

Id.

at 178-79

reasonable

(emphasis in

(questions of

exercised reasonable care,

and caused

plaintiff's injury depend on the totality of the circumstances and
are generally questions of fact).

Here, there is a question of fact as to whether Balfour Beatty
had

adequate

Balfour

notice

Beatty

and

of

a

Ms.

need

to

Campbell

repair

were

aware

flight risk, and the proximity of the lake.
Ms.

Campbell,

the

locks

of

Hannah's

increase

the height

of

the

fence.
autism,

Although disputed by

Plaintiff testified that she told Ms.

they needed to

or

fence

Campbell that

due

to Hannah,

extend the fence to enclose the garage door, and install additional

locks that were out of Hannah's reach.21

Cf. Walker v. Sturbridge

Partners,

40

Ltd.,

221 Ga.

App. 36,

36-37,

remained as to adequacy of notice given
claimed to
locks,

have

landlord

verbally
did

not

requested
repair

the

that

(1996)

(jury question

to landlord where
landlord

locks,

and

fix

her

intruder

tenant
window

broke

in

21 In addition, there is evidence that Balfour Beatty had knowledge of
prior instances in which special needs children eloped from Balfour Beatty
homes at Fort Gordon.
(PL's Ex. 16; Washington Dep. at 129-31; Hignite Dep.
at 198-213; Woodard Dep. at 31-38; Campbell Dep.
33

at 55-56.)

through

window

Demarest,

and

201

Ga.

raped

App.

tenant),

at

aff'd,

90-92

267

785

(1997);

landlord's

(reversing

Ga.

summary

judgment where tenant never asked landlord to repair his lock or
for permission to repair it; but the landlord's apartment manager
attended a meeting where police indicated that dead-bolt locks were

insufficient
to

the

to prevent break-ins unless the

doorframe by 3 M-inch screws;

the dead-bolts;

hardware was

secured

only M-inch screws anchored

a burglar entered the apartment by knocking dead-

bolt off the doorframe;

tenant's personal property was stolen;

and

landlord had a reasonable time between the meeting and burglary to

repair the lock); Warner, 133 Ga. App. at 174-5,
denial

of

property

summary

manager

judgment

install

where

tenant

additional

178-79 (affirming

orally

door

lock,

requested

property

that

manager

took no action, and burglar subsequently broke in and set a fire).
Further,

there is a question of fact as

and locks were

a

"dangerous condition"

would have repaired.
Ga.

App.

at

lock to the

178

Haynes,

260 Ga. App.

("In the case before us,

plaintiffs'

Afunctional,'

functioning,'

that is,

each designed

according

to

the

reasonable

landlord

at 103; cf. Warner,
it

is

133

contended that the

*as is.'

Though the lock may

it does not follow that the lock was

capable of adequately performing or serving

the function to which it was put.

locks,

a

apartment was a functioning lock and that

the plaintiffs accepted the apartment
be said to be

that

to whether the fence

to

needs

There exists today a variety of

provide

a

of

individual

the

34

different

measure
and

his

of

security

property.");

Walker, 221 Ga. App. at 40 (concluding that jury question remained

as to whether lock was adequate and rejecting landlord's argument
that it was entitled to summary judgment because lock functioned as

designed

and

used).

"Georgia

case

law

has

recognized

that

suitability is important in determining whether a duty to repair

exists for which liability may be imposed."
at 179.
risk,

Warner,

133 Ga. App.

Here, Balfour Beatty was aware of Hannah's autism, flight

and proximity of

she told Ms.

Campbell

the
that

modified because of Hannah.

lake.
the

Further,

Plaintiff

fence and door

claims

that

locks needed to

Under these circumstances,

be

whether the

fence and locks were suitable or a dangerous condition subject to
the duty of repair is a jury question.

The record shows that Balfour Beatty did not take any action
to repair the fence or locks,

Further,

the

evidence

or to authorize Plaintiff to do so.

indicates

that

Hannah

eloped

through

the

exterior side door of the garage.

The door could be opened from

the

two

inside

by

Hannah's reach,

simply

twisting

the

locking

mechanisms

and it opened to an area of the yard that was not

enclosed by the fence.

Hannah then eloped to the lake and drowned.

Questions of fact remain regarding breach,

causation,

and damages.

"The immediacy of

the connection between the

functioning)

the landlord's notice of the inadequacy,

lock,

actual or constructive,

[the

Court]

matter

of

within

and

inadequate

(although

[Hannah's elopement and death],

to

hold

that

[Balfour Beatty]

law,

and

that

the

jury

35

should

is

not

either
compels

insulated as

properly

pass

on

a

the

questions of agency, notice, foreseeability, intervening causation,
assumption of risk,

as well as the suitability of the lock

fence] in question."

[and

See Warner, 133 Ga. App. at 179.

Balfour Beatty also argues that Plaintiff cannot recover as a

matter of law because the lake was an open and obvious hazard, even

to a young autistic child.

(Doc. no.

16 at 18-19 (citing Brazier

v. Phoenix Grp. Mgmt. , 280 Ga. App. 67
court stated that:

is

occupier of

the

In Brazier,

the

"Breach of duty alone does not make a defendant

liable in negligence.
liability

(2006)).

The rule remains that the true ground of

superior

knowledge

of

the

property

the existence of a condition that may

invitee to an unreasonable risk of harm."

owner

or

subject the

280 Ga. App. at 70-71.

The court determined that the plaintiff's negligence claim failed
because

a

thirteen-year-old

autistic

boy

and

his

mother

(who

drowned attempting to save him) appreciated the risk of a lake, an
open

and

obvious

hazard.

Id.

at

71-72.

Brazier,

however,

is

inapposite for two important reasons.
First,

in Brazier,

there was

"no evidence"

that the thirteen-

year-old autistic boy was so "mentally impaired that he could not
follow directions or recognize hazards,"
72.

In

fact,

such as a lake.

Id. at

the boy had taken swimming lessons and was

familiar

with large bodies of water.

Id.

evidence that seven-year-old Hannah
the

communication

skills

of

a

In this case,
(1)

however,

was a flight risk,

two-year-old or

younger

there is
(2)

had

child,

(3)

was unable to perform tasks that would normally be associated with

36

a child of her age,

(4)

was instinctively drawn

manner perceived by Plaintiff as dangerous,
was

a

swimming

pool,

(6)

"thought

(5)

everything

swimming pool," and (7) drowned in the lake.
7; L. Sackman Dep. at 22-23, 28, 177-78.)
there

is

a

jury

question

as

to

to water

thought
with

in a

the lake

water

was

a

(J. Sackman Dep. at

Considering these facts,

whether

Hannah

was

able

to

appreciate the risk associated with the lake.
Second,

Brazier

landlord-tenant

was

not

the

context,

a

landlord-tenant

superior

case.

knowledge

In

is

rule

the

not

strictly applied as in landowner cases.

Although plaintiff's knowledge of the dangerous condition
was at least equal to that of defendant, this will always
be the case when a tenant has repeatedly complained about
a

dangerous

condition and a

landlord has

failed to

fix

it. Thus, [the Georgia] Supreme Court has recognized that
strict application of the superior knowledge rule in the
landlord-tenant

context

would

be

inconsistent

with

the

legislature's determination that, as a matter of public
policy, landlords have a duty to repair problematic
conditions in leased premises. See Thompson v. Crownover,
259 Ga.

126,

381 S.E.2d 283

(1989);

O.C.G.A.

§ 44-7-13.

.

. . As the result of its recognition of this policy and
its importance, the Supreme Court in Thompson held that a

plaintiff/tenant's

equal

or

superior

knowledge

of

a

dangerous condition will not always preclude his or her
recovery for injuries caused by that dangerous condition.
259

Ga.

at

129-130,

Jeffco Mgmt.

(1985)

Co.,

("Whatever

381

S.E.2d

176 Ga. App.

force

283.

158,

the

See

159,

also

Grier

v.

335 S.E.2d 408

doctrines

of

superior

knowledge and assumption of risk may have in cases
involving the liability of property owners to business
customers, they have certainly been relaxed in recent
years in the landlord-tenant setting.").
A

review

knowledge
irrelevant.

of
The

of

the

post-Thompson

parties

tenant

cases

shows

has

still

certainly

must

show

that

that

not
the

the

become
landlord

had notice of the problem. See Harris v. Sloan, 199 Ga.
App. 340(1), 405 S.E.2d 68 (1991). Where both tenant and
landlord were aware of the problem, however, the question
has
become:
Given
the
tenant's
equal
or
superior
37

knowledge,

could

he

or

she have

avoided

either by avoiding the problematic area,

the

accident,

or by using it

more cautiously?

Phillips v.

King,

214 Ga.

App.

712,

713

(1994) .

Thus,

in this

case,

Plaintiff and Hannah's equal or superior knowledge

risk

associated

with

the

lake

is

not

of the

dispositive.

Whether

Plaintiff or Hannah could have avoided Hannah's drowning despite
the inadequacies of

the locks and fence is not

summary adjudication.22

Thompson,

259 Ga.

at

susceptible to

129-30.

Without

modifying the locks or fence, Plaintiff's ability to prevent Hannah
from eloping through the exterior doors was significantly limited.
And whether Plaintiff and Mr. Sackman were exercising ordinary care

in supervising Hannah on the night of the drowning is certainly a
jury question.

In sum, the Court concludes that there are genuine,

factual

disputes

that

preclude

summary

judgment

on

material

Plaintiff's

negligence claim.
D.

Fraud

In

Georgia,

fraud

representation by defendant,

the

plaintiff

to

act

reliance by plaintiff,

Williams,

258 Ga.

Campbell,

on behalf of

Plaintiff

that

22 Moreover,
landlord standard,

806,

has

(2)

five

scienter,

or

refrain

and

(5)

806

elements:

from

damage

(1989) .

Balfour Beatty,

(3)

(1)

a

false

intention to induce

acting,

(4)

to plaintiff.

Plaintiff

justifiable
Crawford v.

alleges

that Ms.

committed fraud by telling

the requested modifications

to

the fence and locks

Balfour Beatty has not presented any argument under the
as set forth in Phillips.
38

were

not

permitted

and

would

subject

the

Sackmans

to

citations.

Assuming without deciding that this was a false representation made

with scienter and intent to induce plaintiff to refrain from making
the

modifications,

Plaintiff

cannot

show

justifiable

reliance.

Plaintiff and Mr. Sackman testified that they believed Ms. Campbell
(L.

Sackman Dep.

at 47,

144;

J.

Sackman Dep.

at 24,

27-28),

but

Plaintiff has not explained why this reliance was justifiable.23
In order to prove justifiable reliance, a party must show that
she exercised due

diligence.

Inc. , 310 Ga. App. 253, 257

Martin v.
(2011).

Ctr.

Pointe

Generally,

Investments,

a plaintiff has a

duty to exercise due diligence and "cannot be permitted to claim
that he has been deceived by false representations about which he
could have learned the truth of the matter."

Fowler v. Overby, 223

Ga.

not

App.

one who

803,

803-04

suffers

by

(1996).

"The

law

does

not using the ordinary means

afford

of

relief

to

information,

whether the neglect is due to indifference or credulity."
Estate Int'l, Inc. v. Buggay, 220 Ga. App. 449, 451 (1996).

Real
"While

questions of due diligence often must be resolved by the trier of
fact,

that is not always the case.

diligence as a matter of law."
Plaintiff

took

no action

One may fail to exercise due

Fowler, 223 Ga. App. at 804.
to determine

the veracity

of

Ms.

Campbell's statement that the requested modifications were against
policy and not permitted - even though slight diligence would have

23

Although Balfour Beatty directly addresses this issue in its motion

(doc. no 16 at 20-21), Plaintiff's response brief makes no attempt to explain
why Plaintiff's reliance was reasonable or justified (doc. no. 29 at 15-16).
39

revealed

otherwise.

Campbell's

March

Plaintiff

2,

2 012

should

email,

have

that

requesting alterations to the house.
that,

been

there
Ms.

Form."

and directed her to

(L. Sackman Dep., Ex. 34.)

was

a

from

Ms.

process

for

Campbell told Plaintiff

if the assigned home did not have a fence,

you to put one up,"

aware,

"we will authorize

"complete an Alterations

Further, an alterations request

form was included in the packet of materials given to the Sackmans
when

they

moved

Additionally,

the

in

on

Lease

March

30,

indicated

that

seeking modifications of the house.
written request by the tenant,

2 012.

there

(Id. ,

was

a

Ex.

25.)

process

The Lease stated that,

for

upon

Balfour Beatty would make or allow

repairs and modifications of the premises under certain conditions.
(See id. , Ex.

23 at 5,

7.)

The Lease specifically stated that the

Landlord would install, repair, or replace locks if needed and upon

written

request.24

(Id.)

requesting modifications
website.
74;

The

availability

could also be

of

a

process

for

found on Balfour Beatty's

(See Campbell Dep. at 76-68; Hignite Dep. at 167-68, 173-

PI.'S Ex.

4.)

24 "[W]here a representation is controverted by the express terms of a
contract, a plaintiff will be unable, as a matter of law, to establish that
his reliance is justifiable."
Rayle Tech, Inc. v. DeKalb Swine Breeders,
Inc. , 133 F.3d 1405, 1410 (11th Cir. 1998) (applying Georgia law).
Here, Ms.
Campbell's representation that the modification of the locks and fence was
against Balfour Beatty's policy is controverted by the express terms of the
lease.
Usually,
this would be dispositive of the justifiable reliance
inquiry.
In this case, however, Plaintiff did not actually sign the lease.
Mr. Sackman signed the lease and Plaintiff was merely listed as an occupant.
(L. Sackman Dep., Ex. 23 at 5, 9.)
Under these facts, the Court concludes
that the principle articulated in Rayle is not dispositive.
Nevertheless,
the

fact

that

Plaintiff

had

access

to

the

lease

is

still

relevant

to

justifiable reliance inquiry because i t gave her readily available means
determine the veracity of Ms. Campbell's statements.
40

the

to

Yet,
website

Plaintiff did not review the Lease or Balfour Beatty's
to

determine

whether

the

modifications

permissible or truly against policy.

proposed

were

Plaintiff made no attempt to

call Balfour Beatty, to submit any of the available request forms,

or make any written request at all.

In fact, when a Balfour Beatty

employee made a "warm call" to check-in on the Sackmans and ask how

everything was going just a few days after the move-in,

stated that (1) everything was going well,

(2) the service requests

made during the move-in had been completed,
service

request

requests, and
74,

& Ex.

29.)

phone

(4)

number

submit

a

log-in

there was no hot water.

(3)

she had received a

information

for

online

(L. Sackman Dep. at 68-

There is no indication that Plaintiff mentioned the

fence or lock requests at

to

and

Plaintiff

Property

that time.

Condition

Plaintiff was also reminded

Report.

(Id.)

Mr.

Sackman

eventually submitted the report and requested that Balfour Beatty
fix minor problems with carpeting and a medicine cabinet.
72,

75-75,

&

Exs.

26,

31.)

The

report

failed

to

(Id. at

mention

any

problems with the fence and locks.

In short,

of Ms.

Plaintiff took no action to determine the veracity

Campbell's statements and did nothing to follow up on her

requests.

Even

after

Sackmans became aware of

Hannah

climbed

over

the

the lake in mid-April,

fence

and

the

Plaintiff took no

further action to renew her request with Balfour Beatty to modify
the fence and locks - despite her knowledge of

that the lake posed to Hannah.

Similarly,

41

the special danger

no action was taken to

contact

Balfour

Beatty

after

Plaintiff

became

aware

of

Hannah's

ability to manipulate the locks, aside from warning her to not open
the doors.

"By

[her]

inaction,

[Plaintiff]

diligence as a matter of law."
373

(2009).

Plaintiff's

representation

regarding

reliance'

matter

which

on

could

verified demonstrates a lack of due diligence

claim."
Fowler,
matter

Reeves v.

Edge,

to

exercise

due

Lehman v. Keller, 297 Ga. App. 371,

"'blind

a

failed

225 Ga. App.

615,

[Ms.

Campbell's]

have

been

fatal

619

to

easily

the

fraud

(1997); see also

223 Ga. App. at 804 (finding no justifiable reliance as a
of

law

where

truthfulness

of

the

defendant's

statement

"could have been discovered through the exercise of the slightest

degree

of

diligence").

Balfour

Beatty

is

entitled

to

summary

judgment on Plaintiff's fraud claim.
D. Negligent Misrepresentation
" [J]ustifiable

reliance

is

also

an

essential

claim asserting negligent misrepresentation."
at 451.

element

of

a

Buggay, 220 Ga. App.

"To establish reasonable reliance under Georgia law as to

either fraud or negligent misrepresentation,

a plaintiff must show

that

Sec.

[she]

Stephens,

exercised
Inc.,

due

diligence."

500 F.3d 1276,

1289

Fin.

(11th Cir.

Plaintiff's failure to exercise due diligence,

Assur.,

2007).

Inc.

v.

Therefore,

as described above,

also bars her negligent misrepresentation claim as a matter of law.

42

E. Punitive Damages

Balfour Beatty argues that Plaintiff may not recover punitive

damages in this action for two reasons.
there

can

be

no

award

of

punitive

Balfour Beatty argues that

damages

action.

That is true, but incomplete.

Georgia

law

wrongful

death claim.'"

Ortiz v.

4468771,

at

Sept.

26,

2012)

Ga.

App.

700,

Facilities

that

*2

* [p]unitive

(M.D.

v.

Dixon,

Ga.
176

in

a

wrongful

death

" [I]t is well settled under

damages

are

Wiwi,

not

No.

available

3:ll-CV-033,

in

2012

a
WL

(quoting Donson Nursing
702

(1985)).

However,

punitive damages may be awarded to the administrator of the estate

in

connection

deceased,

Nursing,

with

the

injuries,

pain

and

suffering

of

the

as part of a pre-death tort claim of the decedent. Donson

176 Ga.

App.

at 701; Velez,

Plaintiff seeks punitive damages as

estate.25

(Am.

Compl.

at

recoverable in this action,
sustain them.

219 Ga.

App.

at 688.

Here,

the administrator of Hannah's

18-19.)

Thus,

punitive damages

are

but only if there is a legal basis to

See Donson Nursing,

176 Ga. App. at 701.

The Court

now turns to that question.

Balfour

present

a

Beatty

also

sufficient

Georgia law.

argues

factual

that

basis

The Court agrees.

25 In its reply brief,
indicates

that

Hannah

for

a

has

punitive

In Georgia,

failed

award

to

under

"[p]unitive damages

Balfour Beatty argues that Plaintiff offers no

evidence of Hannah's pain and suffering.
record

Plaintiff

drowned

in

(Doc.
the

no.

lake.

34 at 12.)
As

the

However,

details

of

the
her

drowning are unknown, a jury might rationally infer that Hannah was conscious
at some point during the drowning. This is sufficient to create a jury
question on the issue of pain and suffering.
See Walker v. Daniels, 200 Ga.
App.

150,

1549

(11th Cir.

157

(1991);

Self v.

Great Lakes Dredge

1987).
43

& Dock Co.,

832

F.2d 1540,

may be awarded only in such tort actions in which it is proven by
clear and convincing evidence

that

the defendant's

willful misconduct, malice, fraud,

actions

showed

wantonness, oppression, or that

entire want of care which would raise the presumption of conscious
indifference

negligence
Culter,

-

208

Partners,

to

consequences."

even
Ga.

Ltd.,

gross
App.

221

O.C.G.A.

negligence
651,

Ga.

652

App.

-

§

is

not

(1993);

36,

40

51-12-5.1(b).

enough.

Walker

(1996),

Coker

v.

aff'd

Mere

v.

Sturbridge
267

Ga.

785

(1997).

Plaintiff has not presented "clear and convincing" evidence of
the

degree

section

of

culpability

51-12-5.1(b).

required

There

is

to

sustain

insufficient

conscious indifference by Balfour Beatty.

was aware of Hannah's autism,

an

award

evidence

under

to

find

Although Balfour Beatty

flight risk,

and requests to modify

the fence and locks, Balfour Beatty knew that Hannah was supervised
to

some

degree

Beatty was

by

Plaintiff

and

Mr.

Sackman.

never informed that Hannah was

Further,

drawn

she had learned to operate the dead-bolt locks.

Balfour

to water or that

Therefore,

Balfour

Beatty was unaware of the particular danger that the lake presented
to

her.

repair

care"

Under
the

these

fence

or

from which one

consequences

evidence

of

of

circumstances,

locks

not

could presume

inaction.

willful

does

or

Balfour

For

malicious

rise

to

"that

conscious

the

same

conduct.26

Beatty's

failure

entire

indifference

reasons,

And

there

the

want

to

of

the

is

Court

to

no

has

26 Although the Court earlier found sufficient evidence of intentional
interference

with

Plaintiff's

Fair Housing Rights
44

under

42

U.S.C.

§

3617,

already determined that there is no fraud in this case as a matter

of law.

In short,

Plaintiff has not presented a sufficient factual

basis for a punitive award under § 51-12-5.1(b)

and references no

other authority for punitive damages.

Although

Plaintiff's

there

is

Georgia

Plaintiff's

federal

3613 (c) (1),

the

punitive

law
FHA

"court

damages"

occurred.

no

claims.

a

for

claims,

may

if

basis

punitive

Balfour
According

award

to

the

damages

Beatty

overlooks

to

U.S.C.

housing

punitive

declines to rule,

completely

damages

under the

at least at this time,

foreclosed

in

this

action

FHA.

actual

practice

Neither party has presented any argument

availability of

42

plaintiff

discriminatory

under

§
and
has

regarding the

Thus,

the

Court

that punitive damages are

(as

contended

by

Balfour

Beatty).

In

sum,

Plaintiff

may

not

recover

punitive

damages

under

Georgia law, and the Court declines to rule on the availability of
punitive damages under FHA at this time.

IV,

A.

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Federal Enclave Defense - Third and Sixth Defenses

Plaintiff

moves

for

partial

summary

Beatty's third and sixth defenses,

judgment

as

to

Balfour

which are stated in the Answer

to the Amended Complaint as follows:

that is an entirely different inquiry.
Here, the question is whether - by
failing to repair the locks and fence - Balfour Beatty willfully or
maliciously intended to cause the personal injury (death) that befell Hannah.
45

Third Defense:

There can be no liability under Georgia

state law because all events alleged in the amended
complaint took place at Fort Gordon, a federal enclave.

Sixth Defense:

Plaintiff's claims are barred in whole or

in part by the fact of Georgia having surrendered
sovereignty over Fort Gordon military base, a federal
enclave,
in
or
around
1917,
and
having
confirmed
exclusive federal jurisdiction by statute.
(Am.

Compl. at 2.)

It is undisputed that

(1)

the events giving

rise to this action took place on Fort Gordon,
Fort Gordon to the federal government in 1917,

is a federal enclave.
a

matter

of

law

(2)

and

Georgia ceded
(3)

Fort Gordon

Plaintiff argues that these defenses fail as

because

a

federal

statute

incorporates

state

wrongful death and personal injury law into federal law applicable
to

federal

enclaves.

Plaintiff's

cession,

state

1917,

Defendant,

law

and

are

claims

on

did

therefore

the
not

other
exist

barred.

hand,
as

The

contends

of

the

Court

that

date

agrees

of

with

Plaintiff.

"A federal enclave is created when a state cedes jurisdiction
over land within its borders to the federal government and Congress

accepts that
689

F.3d

cession."

1234,

military bases.
to

federal

1235

Id.

enclaves,

Allison v. Boeing Laser Technical Servs.,
(10th

Cir.

2012).

lands.

the

includes

federal

Under a body of constitutional law applicable
"[i]t

is

well-established

has transferred authority over a tract of
enclave,

This

state may no

that

after a

state

land creating a federal

longer impose new

state

laws

on

these

But state laws enacted before the cession continue to apply

unless Congress

specifically overrides them."
46

Id.

Supreme Court

precedent "makes it clear that the law on a federal enclave is the

state law that governed the land at the time the federal government
established

the

enclave,

not

state

law

enacted

thereafter-unless

that law was expressly adopted by the enclave's new sovereign, the
federal government."

Id.

"Congress can legislate on behalf of the

enclave and may provide for the application of state laws enacted

after the creation of the enclave."

Id. at 1237 (emphasis added)

(citing United States v. Sharpnack, 355 U.S. 286, 294-95 (1958)).

Congress has decided to integrate state law governing wrongful
death and personal
federal

injury actions into federal law applicable on

enclaves.

In the case of the death of any person by the neglect or
wrongful act of another within a national park or other
place subject to the exclusive jurisdiction of the United
States, within the exterior boundaries of any State, such
right of action shall exist as though the place were
under the jurisdiction of the State within whose exterior

boundaries such place may be; and in any action brought
to recover on account of injuries sustained in any such
place the rights of the parties shall be governed by the
laws of

the State within the exterior boundaries of which

it may be.

16 U.S.C.
current
death

§ 457.

This statute

substantive

or

personal

law

of

injury

"envisions

the

surrounding

occurring

within

Vasina v. Grumman Corp.,

644 F.2d 112,

Voelkel

Corp.,

1994)

v.
("The

applicable
enclaves],

Gen.

Motors

second

to
while

sentence

personal
the

846
of

injury

first

the application of

§

F.

a

actions

1473

current

[arising

accomplishes

see also

(D.
state

on
the

for

enclave."

1981);

1468,

makes

actions

in

federal

(2d Cir.

Supp.

457

sentence

47

118

state

the

Kan.
law

federal
same

for

wrongful

death

actions.").

wrongful death and personal

In

regards

to

such

injury law of the

not "frozen as of the date of cession;" rather,

that of
however

the
it

surrounding

might

change

state,
over

whatever

(W.D. Va. 2002)
wrongful

the

federal enclave is
it is

"identical to

that

law

might

Vasina,

time."

accord Adams v. Alliant Techsystems,

actions,

644

F.2d

be
at

and
117;

Inc., 201 F. Supp. 2d 700, 706

("§ 457 adopts state laws on a continuing basis for

death

and

personal

injury

actions."

(emphasis

in

original)).

This is a wrongful death and personal injury action arising on
a federal enclave.

state

law

Georgia law applicable to Plaintiff's remaining

claims,

incorporated

into

for

federal

wrongful
law

and

death
will

and

govern

negligence,
the

is

resolution

of

those claims.27

Balfour Beatty also contends,

on point,
§

that the damages asserted by Plaintiff are not adopted by

457.

damages

without providing any authority

In

and

particular,

pain

and

Balfour

suffering

Beatty

"are

contends

not

adopted by § 457 or existing prior to 1917.
determined

that

Plaintiff

Georgia tort law.

Thus,

may not

that

punitive

necessarily"

injuries

The Court previously

recover punitive

damages

under

the Court need not decide if Georgia law

on punitive awards is adopted by § 457.

As to damages for pain and

27 As an aside, the Court notes that negligence - and specifically the
landlord's duty to make repairs - has existed in Georgia since 1865, prior to
the

cession

(1989)

of

Fort

Gordon.

See

Thompson

v.

Crownover,

259

Ga.

126,

(providing a historical overview of landlord duties in Georgia).

48

127

suffering,

those

damages

appear

to

fall

squarely

personal injury law of Georgia adopted by § 457.

within

the

Balfour Beatty

has not provided any authority to the contrary.
Balfour Beatty also argues that the third defense - that there

is "no liability under Georgia state law" - is correct because §

457 merely adopts Georgia law as federal law.
technically correct.

See Mater v. Holley,

Cir.

that

1952)

(holding

state

law

This argument is

200 F.2d 123, 124

applicable

within

(5th

federal

enclaves is federal law for purpose of determining whether there is
federal question jurisdiction under 28 U.S.C.

§ 1331).

As Balfour

Beatty is technically correct that there is no liability arising
under Georgia

entitled to

law,

the Court has determined

summary judgment as

this determination

in

no

way

to the

impedes

that

Plaintiff

third defense.

Plaintiff

under Georgia law as adopted by § 457.

from

is

not

However,

recovering

Balfour Beatty's argument

is purely pedantic and has no practical effect on the applicable
law.

or

For that reason,

in

part"

by

the

Plaintiff's claims are not

federal

enclave

"barred in whole

doctrine,

and

the

Court

concludes that Plaintiff is entitled to summary judgment as to the
sixth defense.28
B.

Contractual Defense -

Plaintiff
Balfour

also

Beatty's

are barred by the

moves

fifth

Fifth Defense

for

defense,

terms of

the

partial
which

[Lease]

summary

states:

judgment

"Plaintiff's

as

to

claims

signed by John Sackman on

28 The Court will continue to refer to Plaintiff's "Georgia" or "state
law" claims for ease of reference, even though
claims.
The parties may feel free to do the same.
49

they

are

actually

federal

March 30, 2012."

(Am. Compl.

at 2.)

is predicated on

the Lease's

the fifth defense

exculpatory clause,

separate clauses agreeing that
safe and acceptable.

Presumably,

the house

and

disclaimer,

existing locks

and
were

(See L. Sackman Dep., Ex. 23 at 5, 7-8.)

The parties present a multitude of arguments concerning this
defense.

(See

Doc.

nos.

21

at

5-6;

27

at

7-10;

Neither Plaintiff nor Hannah signed the Lease.
argues that Mr.

not

her

36

at

Plaintiff primarily

Sackman had no authority to bind Hannah,

biological

parent,

never

adopted

3-5.)

her,

as he was

and

was

never

appointed as her guardian;

Plaintiff and Jeffrey Ross still shared

custody over Hannah.

Sackman Dep.

primary response

at 49.)

Balfour Beatty's

that Mr.

Sackman could bind Hannah because he

was acting in loco parentis.

Neither party presents any authority

that

is

(J.

directly addresses

bind a

the

child when acting

need not

rule on that

Plaintiff

points

out

in

ability of

a person

loco parentis.

to

The

issue and subsidiary issues
an

alternative

and

contractually

Court,

however,

raised because

independent

ground

for

granting her motion.

As Plaintiff notes,
Lease.

(Doc. no.

Balfour Beatty is not even a party to the

36 at 3 n.3.)

The only parties to the Lease are

Mr. Sackman and Fort Gordon Housing,

at 4.)

LLC.

(L. Sackman Dep.,

Balfour Beatty has provided no explanation as to why it is

entitled to rely on rights given to Fort Gordon Housing,

Lease.29

Ex. 23

LLC in the

For example, Mr. Sackman agreed with Fort Gordon Housing,

29 Specifically, Balfour Beatty has not argued that it was assigned any
of the rights or

that

it is a third-party beneficiary under the Lease.
50

Nor

LLC that all existing locks were safe and acceptable and that Fort

Gordon

Housing,

members

for

disrepair,

LLC shall

damages,

not

be

injuries,

and other causes.

liable

or

to

losses

him

or

caused

(L. Sackman Dep.,

his
by

family

defects,

Ex. 23 at 5,

7-8.)

Balfour Beatty is a separate entity and a non-party to the Lease.

Thus,

it appears to have no rights under the Lease.

contrary argument provided by Balfour Beatty,

that

Plaintiff

defense.

is

entitled

Consequently,

to

summary

the

Without any

Court

judgment

on

concludes

the

fifth

the Court need not rule on the other issues

presented in connection with the fifth defense.

V.

Balfour Beatty moves

expert, Mark E. Williams.

MOTION TO

to

EXCLUDE

exclude

the

(Doc. no. 18.)

testimony of

Below,

Plaintiff's

the Court presents

the controlling standard and addresses issues presented.
A.

Standard for Expert Testimony

Federal Rule of Evidence 702 provides that:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if: (a) the expert's
scientific,
technical, or other specialized knowledge
will help the trier of fact to understand the evidence or
to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods of
the

facts

of

the

case.

has it attempted to argue that its ten percent interest
Housing, LLC entitles it to the rights in the Lease.
51

in

Fort

Gordon

"As the Supreme Court recognized in Daubert v. Merrell Dow Pharms.,

Inc. , [509 U.S.

579

(1993)], Rule 702 plainly contemplates that the

district

court

will

[expert]

testimony."

serve

as

Quiet

Ltd. , 326 F.3d 1333, 1340

a

gatekeeper

Tech.

DC-8,

to

Inc.

(11th Cir. 2003).

the
v.

admission

of

Hurel-Dubois

UK

"The burden of laying

the proper foundation for the admission of the expert testimony is
on the party offering the expert,

and admissibility must be

by a preponderance of the evidence."
184 F.3d 1300,

1306

(11th Cir.

Allison v. McGhan Med.

shown
Corp.,

1999).

The Eleventh Circuit has explained that district courts are to

engage

in

a

three-part

expert

testimony under Rule

Specifically,

inquiry to
702.

determine

the

Quiet Tech.,

admissibility of

326

F.3d at

1340.

the court must consider whether:

(1)
The expert
is
qualified to
testify competently
regarding the matters he intends to address;
(2) the
methodology by which the expert reaches his conclusions
is sufficiently reliable as determined by the sort of
inquiry mandated in Daubert;
and
(3)
the
testimony
assists the trier of fact, through the application of
scientific,
technical,
or
specialized
expertise,
to
understand the evidence or to determine a
Id.

at

knowledge,

2008).

in issue.

1340-41.

First,

Chain,

fact

an

expert

skill,

LLC v.

may

be

experience,

Blount,

Inc.,

qualified

training,
583

F.

to

testify

or education.

Supp.

2d 1293,

188 F.3d 709,

723

(7th Cir.

1999).

52

to

his

Trilink Saw

1304

A witness's qualifications must correspond to

matter of his proffered testimony.

due

(N.D.

the

Ga.

subject

See Jones v. Lincoln Elec.

Co.,

Second, the testifying expert's opinions must be reliable.
Daubert,

In

the Supreme Court directed district courts faced with the

proffer of expert testimony to conduct "a preliminary assessment of

whether the reasoning or methodology underlying

the testimony is

scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue."
93.

There

whether the

are

four

factors

that

courts

(2)

at

592-

consider:

should

theory or technique can be tested,

been subject to peer review,

509 U.S.

(1)

whether it has

(3) whether the technique has a known

or potential rate of error, and (4) whether the theory has attained
general
"These

acceptance
factors

are

in

the

relevant

illustrative,

will apply in every case,

community.

not

exhaustive;

Id.
not

at
all

593-94.
of

them

and in some cases other factors will be

equally important in evaluating the reliability of proffered expert
opinion."
2004).

United States v. Frazier,
Thus,

"the

trial

387 F.3d 1244,

judge must

have

1262

considerable

(11th Cir.
leeway

in

deciding in a particular case how to go about determining whether
particular

expert

Carmichael,

526 U.S.

Regardless

of

testimony
137,

the

152

is

reliable."

Kumho

Tire

Co.

(1999).

specific

factors

considered,

" [p]roposed

testimony must be supported by appropriate validation - i.e.,

grounds,'
most

based on what is known."

cases,

"[t]he

expert's

v.

Daubert,

testimony

must

509 U.S.
be

'good

at 590.

grounded

in

accepted body of learning or experience in the expert's field,
the expert must explain how the conclusion is so grounded."

53

In
an

and
Fed.

R.

Evid.

702,

advisory

committee's

notes

(2000

amendment).

"Presenting a summary of a proffered expert's testimony in the form
of conclusory statements devoid of factual or analytical support is
simply not enough"

to carry the proponent's burden.

Estate of Tessier v. Sheriff of Monroe Cnty.,

1113

(11th Cir.

2005).

Cook ex rel.
402 F.3d 1092,

neither an expert's

Thus,

Fla.,

qualifications

and experience alone nor his unexplained assurance that his or her
opinions

rely

Metabolife

Frazier,

on

accepted principles

Int'l,

Inc.,

401

387 F.3d at 1261.

reliability,
principles

courts

must

Third,

Daubert,

expert

decide a fact

testimony

in issue.

a material

at

described

careful

509 U.S.

1262;
this

aspect

Daubert,
test

"Proffered expert

as

must

Thus,

beyond the understanding of

F.3d

1233,

Moreover,

be

sufficient.
1244

509
one

to

focus

Cir.

2005);

on

the

expert's

scientific conclusions

at 595.

assist

the

average

trier

of

fact

lay person and

the proponent's
U.S.

of

(11th

v.

to

the testimony must concern matters

the

of

McClain

when analyzing a witness's

and methodology rather than the

that they generate.

advance

F.3d

is

at

591.

"fit."

case.

The

Daubert,

testimony generally will

not

Frazier,

Supreme
509

help

logically

Court

U.S.

the

at

387
has
591.

trier of

fact when it offers nothing more than what lawyers for the parties

can argue in closing arguments."

Frazier,

387 F.3d at 1262-63.

B. Application

Mr.

and

Williams is Plaintiff's expert as to both standard of care

causation.

He

opined

that

54

Plaintiff's

rental

house

had

"inadequate

proximity

locking devices,"

...

to

Soil

and that given the house's "close

Erosion

Lake,"

it

was

"reasonably

foreseeable to Balfour Beatty that Hannah Ross would be exposed to
the water hazard that caused her fatal drowning."
Ex.

1 "Expert Report"

at 11.)

Furthermore,

(Doc.

Mr.

no.

Williams

18,

opined

that Balfour Beatty should have realized Hannah was a flight risk
and therefore should not have assigned the Sackmans to a house in
close proximity to the

lake.

(Id.

at 12,

14.)

He

also asserted

that Balfour Beatty had a duty to inspect the home and surrounding
area, to warn the Sackmans of the lake's proximity to their home,
and

to

install

expense

reach.

or

allow

the

Sackman's

to

install

at

their

locks on the home's exit doors which were out of

(Id. at 16-17, 19,

own

Hannah's

21-22.) According to Mr. Williams,

these

actions and inactions violated the FHA and breached the duty of
care

Balfour

dangerous

drowning.

actions

Beatty owed

conditions

(Id.

and

at

to

that

safety of Hannah Ross.

Sackmans,

which

resulted

caused or contributed to

18-22.)

inactions

the

Mr.

Williams

demonstrate

also

conscious

in

Hannah's

opined

fatal

that

disregard

the

these

for

the

(Id. at 22.)

Balfour Beatty argues that Mr. Williams's testimony should be
excluded

because:

(1)

Mr.

Williams

is

not

qualified

to

opinions regarding any alleged non-compliance with the FHA;
opinions

are

unreliable

reliable

principles

and

because

they

are

methods;

and

(3)

55

not

his

the

render
(2) his

product

opinions

of

present

arguments within the ken of the average person and amount to "naked
advocacy."

(Doc. no.
1.

Mr,

18 at 2, 11, 15.)

Williams's Qualifications

Balfour Beatty contends that Mr. Williams is not qualified to

opine

on

whether

Balfour

Beatty

failed

to

comply

with

the

FHA

because Mr. Williams has failed to explain any previous experience
with

reasonable

Plaintiff,

on

accommodations

the

other

issues

hand,

under

points

out

the

FHA.

that

(Id.

5.)

Williams

Mr.

at

has

previously testified as an expert architect on multiple occasions
and has experience and training in code compliance.
8-9.)

Furthermore,

Mr.

Williams

possesses

over

experience as a residential property manager.

The

qualification

stringent,"

and

objections

to

"so

the

long

(S.D.

Fla.

decide,

Dec.

that Mr.

23,

as

level

credibility and weight,
Arch Specialty Ins.

standard

Co.,

the

of

not

for

the

2011) .

minimally

expert's

20-61485-CIV,
Here,

testimony

is

admissibility."

No.

the

fourteen years

of

(Id.)

expert

expert

(Doc. no. 28 at

is

qualified,

expertise

Banta Props.,

[go]

will

assume,

to

Inc. v.

2011 WL 7118542,

Court

"not

at

but

*2
not

Williams is minimally qualified to discuss matters

relating to compliance with the FHA.
2,

Reliability of Mr, Williams's Testimony

Balfour Beatty also contends that Mr. Williams's testimony is
not reliable. Specifically,

did
that

not

provide

Balfour

any

Balfour Beatty claims that Mr. Williams

discernible

Beatty breached

the

56

methodology
standard

of

for

his

care

conclusions

applicable

to

property management

companies,

and that

its

actions

and inactions

resulted in the dangerous conditions which caused or contributed to

Hannah's

fatal

drowning.

Plaintiff

argues

that

(Doc.

Mr.

no.

18

Williams's

at

11.)

In

testimony on

response,

causation

and

reasonable care is reliable because of Mr. Williams's expertise and

experience in architecture,
and his research.

his experience as a property manager,

(Doc. no. 28 at 11, 14.)

As noted previously,

Mr. Williams is an expert architect with

experience in property management.

His experience as an architect

spans over thirty years and includes work conducting code research
and planning and designing the construction of facilities for "at-

risk" populations.

(Expert Report at 31-39.)

His experience as a

property

includes

of

a

and

multiple

manager

residential
family

property,

homes.

(Id.)

the

management

an apartment
Together,

building,

these

experiences

multi-family

may

single

qualify

Mr.

Williams to opine regarding whether Balfour Beatty met its standard

of

care,

experience,
to

the

but

when

a

relies

"solely

or

primarily

on

then the witness must explain how that experience leads

conclusion

reached,

basis for the opinion,
to the facts."

also Fed.

witness

R.

P.

that

experience

is

a

sufficient

and how that experience is reliably applied

See Frazier,

Civ.

why

387 F.3d at 1261

26(a) (2) (B)

(expert

(emphasis added); see

reports must

contain

"a

complete statement of all opinions the witness will express and the
basis and reasons for them").

57

Mr. Williams has not provided any such explanation,

reason

for

specific

his

opinions.

experiences

conclusions.

To

Nor

upon

find

Mr.

has

Mr.

which

Williams

he

Williams's

relied

referenced

any

reaching

his

in

opinion

basis, or

testimony

reliable

based on his experience alone would be "tantamount to disregarding
entirely the reliability prong of the Daubert analysis." Dukes v.
Georgia, 428 F. Supp. 2d 1298, 1315

Plaintiff

also

contends

that

reliable because it is based on

no.

28

at

12).

Mr.

(N.D. Ga. 2006) .

Mr.

Williams

reviewed

depositions,

guidebooks,

agreements

(Expert Report at

23-30.)

Additionally,

Mr.

autism spectrum

environmental safety precautions and accommodations for

individuals

disorders.

with

autism,

and

lethal

(Expert Report at 8-11,

Despite

application

his

of

research

industry

fire codes,

15-16,

and

Dep.

in

autism

spectrum

18-21.)

purported

and federal laws,

(Williams

outcomes

standards,

how any industry standards,
opinion.

(Doc.

handbooks written

Williams reviewed publications related to the FHA,

codes,

is

and documents pertaining to 135 Cypress Circle,

among other materials.

disorders,

testimony

"sufficient facts and data."

between Balfour Beatty and Plaintiff,
by Balfour Beatty,

Williams's

local
Mr.

expertise

ordinances,

in

the

building

Williams fails to explain

code, or other authority supports his
at

14-16.)

Of

the

works

cited,

none

address the application of the FHA or Georgia law to the housing of
families
reviewed.

with
Mr.

autistic

children,

and

none

Williams does not discuss

58

appear

to

be

peer-

the applicability of

the

publications
these

he cites to the case at hand,

publications,

companies

follow

or the extent

the

guidelines

his experience with

to which property management
included

in

the

publications.

Without explanation from Mr. Williams addressing these factors, the
Court

cannot

reasonably

rely

on

these

publications

and

their

guidelines as setting forth industry standards or industry practice
that Balfour Beatty had to, and failed to, follow.

In

the

absence

applicability of

of

his

testimony

expertise,

explaining

experience,

the

and

relevancy

research

and

to

the

case at hand, the Court concludes that Mr. Williams has provided no
objective,

expert

To find Mr.

methodology linking

to his

opinions.

methodology reliable as Daubert

Williams's

the

facts

requires,

the Court would need to "take the expert's word for it" and rely on
ipse dixit opinion.

his

of

the

However,

purported expert

is

exactly what

Cook and McClain warned against."

Accordingly,

"[r]eliance on naked assurances

Dukes,

the

Eleventh Circuit

428 F.

Supp.

in

2d at 1315.

the Court finds that Mr. Williams's testimony does not

satisfy the reliability prong of the Daubert analysis.
3.

.Relevance

Further,
assists

the

expert testimony is not admissible unless it actually
trier

of

fact,

i.e.,

"it

beyond the understanding of

the

F.3d

Williams's

at

1262.

Much

which are within
example,

he

of

the

opines

Mr.

matters

average lay person."

understanding of

that:

concerns

Balfour

59

testimony

the

Beatty

are

Frazier,

387

involves

average
should

that

matters

layperson.

have

known

For
that

Hannah

was

a

flight

risk;

Balfour Beatty

Sackmans in a house further from the lake;

should

have

put

the

extra locks or different

locks would have prevented Hannah's escape; Balfour Beatty should

have warned the Sackmans about the lake; and Hannah's drowning was
reasonably

foreseeable.

(See

Expert

Report

at

10-11.)

These

are

arguments within the ken of the average person, which could just as

easily

be

Frazier,

made

by

Plaintiff's

387 F.3d at 1262-63.

counsel

in

closing

arguments.

If an expert can offer nothing more

than his "stamp of approval" on the plaintiff's case, his testimony
"does nothing to advance a material
therefore lacks the
Daubert.

In

of

their claims,

and

indicia of relevance required by Rule 702 and

Dukes, 428 F. Supp. 2d at 1315.

addition,

conclusions

is

confusion.

Oakland,

aspect"

not

See

expert
helpful

Allison,

758 F.2d

testimony

147,

150

to

184

the
F.3d

couched

in

jury and

may

at

Torres

(6th Cir.

1312;

1985) .

terms
result

In his

v.

of

legal

in

jury

Cnty.

report,

of

Mr.

Williams presents legal arguments in the guise of expert opinions
about the

scope of Balfour Beatty's legal duties under common law

and the FHA.30 (See Expert Report at 15-16, 18-21.)

When providing

testimony, it is not for an expert to "communicate a legal standard
- explicit or implicit - to the jury."
25 F.3d 1342,
Cas.

& Sur.

1353-54

Co.,

(6th Cir.

898 F.2d 1537,

1994);
1541

Berry v. City of Detroit,
see also Montgomery v. Aetna

(11th Cir.

1990)

("A witness

.

30 Illustrative of this problem is Mr. Williams's attempt to establish
the appropriate standard of care by citing sources such as "Every Landlord's
Legal Guide."
(Expert Report at 15.)
The Court prefers to rely on
applicable statutes, caselaw, and pattern instructions.
60

. . may not testify to the legal implication of conduct;

must be the jury's only source of law.").
may be qualified as an expert,

Although Mr.

1354.

Because

Mr.

Williams

"he is not qualified to compete with

the judge in the function of instructing the jury."
at

the court

Williams's

testimony

Berry, 25 F.3d

encroaches

upon

the

Court's domain over jury instructions and possesses the undeniable

propensity to distract

and wrongly influence the

jury,

the Court

finds Mr. Williams's testimony inadmissible.
In

summary,

regarding

the

causation

reliable

and

Accordingly,

not
Mr.

Court

and

finds

standard

sufficiently
Williams's

that

of

Mr.

care

helpful

are

to

testimony does

Williams's

not

the
not

sufficiently

trier

meet

opinions

of

fact.

the Rule

702

standard, and Balfour Beatty's motion to exclude is GRANTED.

VI.

CONCLUSION

Consistent with reasons stated above, Balfour Beatty's motion
for summary judgment (doc. no.

16) is GRANTED IN PART AND DENIED IN

PART.

entitled

Balfour

Plaintiff's
disability

negligent
law.

Beatty

claims

for

is

reasonable

discrimination

misrepresentation,
Plaintiff's

intentional

claims

and

(doc.

no.

20)

is

damages

reasonable

judgment

under

Rehabilitation

punitive

for

summary

accommodation

the

interference under the

law shall proceed to trial.

judgment

under

to

the

on
FHA,

Act,

fraud,

under

Georgia

modification

FHA and negligence under

and

state

Plaintiff's motion for partial summary

GRANTED

61

IN

PART

AND

DENIED

IN

PART.

Plaintiff is entitled to summary judgment on Balfour Beatty's fifth

and sixth defenses,

but not the third defense.

Balfour Beatty's

motion to exclude (doc. no. 18) is GRANTED, and Plaintiff's expert
witness

is

excluded.

This

case

shall

proceed

to

trial

in due

course.

ORDER
September,

ENTERED

at

Augusta,

Georgia,

this

day

2014.

iE

J.

STATES

RAtfDA'L

HALL

DISTRICT JUDGE

DISTRICT OF GEORGIA

62

of