[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13397

____________________

BETTY DENSON, 

Plaintiff-Appellant,

versus

DONALD GERTEISEN, 

LINDA GERTEISEN, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 2:20-cv-00228-SCJ

____________________

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2 Opinion of the Court 22-13397

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and 

PROCTOR,* District Judge.

PER CURIAM: 

This appeal requires us to decide whether the district court 

erred in granting summary judgment on a premises-liability claim

arising under Georgia law. While this case was pending on appeal, 

the Georgia Supreme Court issued a decision addressing issues relevant here. We therefore vacate the district court’s order granting

summary judgment and remand so that the district court may consider this new decision in the first instance.

I.

In October 2018, Betty Denson and her family rented a cabin 

in Georgia for a short-term stay. The cabin was owned by Donald 

and Linda Gerteisen. The cabin was a two-story home in which a 

wooden staircase connected the main and upstairs floors. Two 

steps of the staircase were two triangular platform steps that turned

at an angle. At the beginning of her stay, Denson fell and hit her 

head while going down the cabin’s staircase. She was later diagnosed with a traumatic brain injury. 

The cabin was built in 1997 pursuant to a design template. 

About five years later, the builder sold the cabin to the Gerteisens. 

Before the cabin was sold, the property was permitted, passed all 

county inspections, and received a certificate of occupancy. At the 

* Honorable R. David Proctor, United States District Judge for the Northern 

District of Alabama, sitting by designation. 

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time of the sale, the builder was not aware, and had not received 

any notice, that any part of the cabin had been designed in violation 

of any building code. An independent inspection of the cabin, completed at the time of the sale, did not reveal any issue with the staircase, and the Gerteisens did not modify or alter the staircase during 

their ownership.

When Denson rented the cabin, the Gerteisens had not been 

residing there. Instead, they used the property as a short-term vacation rental, managed by and rented through Vacasa Vacation 

Rental, a vacation-property management company. Besides advertising, booking, and managing rentals, Vacasa provided other services including cleaning after every rental; providing towels, 

sheets, and amenities to renters; and alerting the Gerteisens of any 

necessary repairs to the property. Vacasa also inspected the property after each stay ended. 

During the 16 years that the Gerteisens owned and rented

out the cabin as a vacation home, they did not observe any issue 

with the staircase and never were notified of any issues with it. The 

Gerteisens sold the property in late 2018, about a month after Denson’s stay. 

II.

Denson sued the Gerteisens for her injury, bringing a premises-liability claim arising under Georgia law. She alleged that the 

Gerteisens owed a duty of care to her as an invitee to the property. 

See O.C.G.A. § 51-3-1 (stating that an owner of land is liable to invitees for “injuries caused by his failure to exercise ordinary care in

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keeping the premises . . . safe”). They breached this duty, she pled,

by maintaining the cabin’s staircase in a dangerous condition. 

The Gerteisens moved for summary judgment. In their motion, they argued that although a property owner generally owes a 

duty to use ordinary care to keep the premises safe for all invitees, 

a different standard applied to them because they were “out-of-possession” landlords. Under Georgia law, an out-of-possession landlord is one who has “fully parted with possession and the right of 

possession.” O.C.G.A. § 44-7-14. Such a landlord isresponsible only 

“for damages arising from defective construction” or “from the failure to keep the premises in repair.” Id. Because Denson failed to 

introduce any evidence supporting liability under either a defective-construction or failure-to-repair theory, the Gerteisens argued, 

they were entitled to summary judgment. 

They further argued that even if they were not out-of-possession landlords and § 44-7-14 did not govern Denson’s claim, the 

claim nevertheless failed. The Gerteisens acknowledged that if they 

were not out-of-possession landlords, they owed Denson a duty to 

exercise ordinary care in keeping the premises safe. But they argued that Denson had failed to introduce evidence showing that 

they breached this duty.

In opposing the Gerteisens’ motion for summary judgment, 

Denson argued that § 44-7-14 was inapplicable to a short-term vacation rental because an owner of such a property was not an outof-possession landlord. Instead, she said, the owner of a short-term 

vacation rental was more akin to an “innkeeper or depository for 

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hire.” Doc. 45 at 5.1 And because the Gerteisens were not out-ofpossession landlords, they owed a duty of care to her as an invitee 

to the property and thus were liable for the hazardous condition 

the staircase created.

Denson also argued in the alternative that even if the Gerteisens were out-of-possession landlords and § 44-7-14 applied, they

were liable because her injury arose from a construction defect or

because they failed to keep the premises in good repair. To support 

her position, Denson relied on evidence showing that the staircase 

violated local building codes based on its handrail dimensions, 

handrail height, and walkline widths.

The district court granted summary judgment to the Gerteisens. After reviewing relevant case law and the record, including

the role of Vacasa and the services it provided, the court concluded 

that the Gerteisens had fully parted with possession and the right 

of possession, and so they were out-of-possession landlords. The

district court rejected Denson’s argument that because the Gerteisens offered the cabin as a “short-term vacation rental[],” they 

should be treated as “innkeeper[s].” Doc. 59 at 17 (internal quotation marks omitted). 

Having determined that the Gerteisens were out-of-possession landlords, the district court ruled that they owed Denson the 

narrow duties set forth in § 44-7-14—that is, they could be held 

1 “Doc.” numbers refer to the district court’s docket entries.

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liable only if Denson proved defective construction or a failure to 

keep the premises in repair. 

To prevail on a theory of defective construction, the court 

explained, Denson needed to show that the Gerteisens “‘knew or 

by the exercise of reasonable diligence could have known,’ before 

the tenancy was created, of a ‘structural defect.’” Doc. 59 at 19 

(quoting WCE Holdings B, LLC v. Lewis, 870 S.E.2d 522, 525 (Ga. Ct. 

App. 2022)). “A structural defect is the kind that would have been 

discovered during a pre-purchase building inspection.” Id. at 20 (internal quotation marks omitted). 

After reviewing the record, including the testimony of Denson’s building-inspection expert, who opined that there were at 

least three defects in the staircase—improper handrail dimensions, 

height, and walkline widths—the court found there was evidence 

that the staircase’s construction was defective. But because Denson’s expert failed to opine on whether the defect would have appeared in a pre-purchase building inspection, the court concluded 

that the Gerteisens were entitled to summary judgment under a 

defective-construction theory. 

To prevail on a failure-to-repair theory, the court observed, 

Denson must prove two elements: “a duty to repair” and “notice . . . of the defect.” Id. at 18 (quoting Gainey v. Smacky’s Invs., 

Inc., 652 S.E.2d 167, 169 (Ga. Ct. App. 2007)). The Gerteisens had a 

duty to repair, the district court concluded, but there was no evidence in the record that the Gerteisens had knowledge about any 

defect in the staircase. To support its conclusion, the court pointed 

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to the pre-sale inspection that showed no defects and a lack of complaints about the staircase while the Gerteisens owned and rented 

out the cabin. Thus, summary judgment was granted on the failure-to-repair theory. 

Having concluded that Denson failed to raise a genuine dispute of material fact as to defective construction or failure to repair, 

the district court granted summary judgment to the Gerteisens. 

The court did not address their additional, alternative arguments 

for why they were they entitled to summary judgment. Denson 

timely appealed. 

III.

We review a district court’s grant of summary judgment de 

novo, viewing all evidence and drawing all reasonable inferences in 

favor of the non-moving party. Newcomb v. Spring Creek Cooler Inc, 

926 F.3d 709, 713 (11th Cir. 2019). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a).

On appeal, Denson argues that she adduced sufficient evidence to survive summary judgment on her premises-liability 

claim, which arose under Georgia law. She argues that O.C.G.A.

§ 44-7-14 does not “apply to transient vacation rental arrangements” such as the arrangement between Denson and the Gerteisens. Appellant’s Br. at 1. According to Denson, the arrangement 

between herself and the Gerteisens was similar to an innkeeperguest relationship. This relationship meant that the Gerteisens 

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owed her an ordinary duty of care, which they breached by maintaining the staircase in a dangerous condition. And so, she says, she 

was not required to establish defective construction or failure to 

repair under the standard of care applicable to out-of-possession 

landlords. 

In this diversity case we must apply Georgia law “and decide 

issues of state law the way it appears the state’s highest court 

would.” Pincus v. Am. Traffic Sols., Inc, 986 F.3d 1305, 1310 (11th Cir. 

2021) (internal quotation marks omitted). And “[o]n state law issues, we are bound by the decisions of the state supreme court.” Id.

(internal quotation marks omitted). 

After the parties finished briefing the appeal, the Georgia Supreme Court issued its decision in Efficiency Lodge, Inc. v. Neason

clarifying the framework used under Georgia law to determine 

when a landlord-tenant relationship exists. 889 S.E.2d 789, 792 (Ga. 

2023). The Efficiency Lodge litigation began when long-term residents of an extended-stay motel fell behind on their rent payments. 

Id. at 793. The motel threatened to evict them and lock them from

their rooms. See id. at 792–93. The motel claimed that it had the 

authority to lock out the residents from their rooms because Georgia law grants a remedy that allows an “innkeeper” to remove a 

holdover “guest.” See id. at 795 (citing O.C.G.A. § 43-21-3.2). 

The residents sued, claiming that the motel could not remove them from the rooms unless it filed dispossessory actions 

against them as required by a Georgia statute governing landlordtenant relationships. See id. at 793–95 (citing O.C.G.A. §§ 44-7-49, 

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50, 55). In the lawsuit, the trial court ultimately granted permanent 

injunctive relief, concluding that the motel was not an inn and thus

was required to initiate dispossessory proceedings to remove the 

residents. Id. at 794. 

The motel appealed to the Georgia Court of Appeals, which

affirmed the trial court’s judgment. Id. Looking to Georgia’s innkeeper statute, the Georgia Court of Appeals concluded that because the residents were not “transient guests of a hotel as such is 

understood by a reasonably common person,” an innkeeper-guest

relationship did not exist between the motel and its residents. Id.

(internal quotation marks omitted). As a result, the Georgia Court 

of Appeals concluded, the motel was a landlord that had to undergo dispossessory proceedings to evict the residents. Id. 

The motel then appealed to the Georgia Supreme Court. Id.

The Supreme Court described the “key question” in the case as 

“whether the parties [had] created a landlord-tenant relationship.”

Id. at 792. The Court began by contrasting the landlord-tenant relationship with the innkeeper-guest relationship. Id. at 795. It described an innkeeper-guest relationship as a “transient, non-possessory relationship.” Id. The Court observed that “the landlord-tenant relationship and innkeeper-guest relationship are mutually exclusive.” Id. But it also noted that “the absence of a landlord-tenant 

relationship does not necessarily mean that parties are in an innkeeper-guest relationship.” Id. 

Turning to the landlord-tenant relationship, the Court explained that a landlord-tenant relationship is created “when a 

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property owner ‘grants,’” either expressly in a written agreement 

or through implied possession by the tenant with the landlord’s 

consent, “to another the right ‘simply to possess and enjoy the use 

of’ the owner’s property, either for a fixed time or at the will of the 

grantor.’” Id. at 792 (quoting O.C.G.A. § 44-7-1). In other words, 

“the hallmark of a landlord-tenant relationship” is the “transfer of 

the right of possession—the grant by the owner and acceptance by 

another.” Id. at 795. 

The Court instructed how courts should determine whether 

such a transfer occurred. Id. at 796. “Because transferring the right 

to possession requires a grant by the owner and acceptance by another,” the intention of the parties determines whether a grant by 

the owner and acceptance by another occurred. Id. The parties’ intention, the Court continued, can be shown by express agreement, 

such as a contract or lease, but even without express agreement, 

intent may be discerned through “evidence from the parties’ arrangement and the circumstances as a whole.” Id. Said differently, 

intent can be shown through other evidence establishing that “a 

person [was] in actual possession of the property . . . with the 

owner’s consent.” Id. (emphasis added). 

The Court proceeded to evaluate these two concepts: possession and consent. Id. at 797–800. Possession, the Court noted, 

involves “sufficient acts of ownership and control with respect to 

the subject property.” Id. at 797. In a residential context, a landlordtenant relationship is ordinarily established when “a person does a 

collection of things . . . normally associate[d] with using the subject 

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property as her dwelling place—as her home.” Id. When a renter 

uses a property as a home, and “not just as a place to sleep or stay 

for a short time,” she can be expected to “maintain[] a relatively 

continuous physical presence.” Id. at 797-98. For example, a renter 

maintaining a relatively continuous physical presence, “perform[s] 

routine cleaning and maintenance; add[s], remov[es], or alter[s] fixtures, furnishings, and decor; and keep[s] belongings there.” Id. In 

short, “acts of ownership and control” that indicate the renter is 

using the property as her “dwelling place” establish possession. Id.

at 797–98. 

As to the concept of consent, the Court explained that consent may be express or implied. Id. at 799. A written agreement 

may plainly establish consent to transfer the right to possess and 

use the property. Id. But “[e]ven an agreement between the parties 

that does not expressly transfer the right to possess and use the 

property may shed light” on the question of consent. Id. For example, the agreement could allow or prohibit the “kinds of acts of 

ownership and control that can establish possession.” Id. On the 

one hand, the Court explained, the agreement could require the 

renter to “provide [her] own furniture, take out the trash, and keep 

the premises clean”—acts consistent with an agreement to transfer 

possession. Id. On the other hand, the agreement could prohibit 

the renter “from making any alterations, performing maintenance, 

or having visitors”—acts inconsistent with an agreement to transfer possession. Id.

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In addition, when the written agreement is ambiguous or no 

written agreement exists between the parties, a court may look to 

the “parties’ course of conduct” to determine consent. Id. at 800. 

For example, if an owner knew of and allowed a renter to do things 

consistent with possession, such as “decorating and furnishing the 

premises, taking on responsibility for cleaning and maintenance, 

entertaining houseguests, [or] changing the locks,” these facts may 

establish consent. Id. Conversely, if an “owner discouraged or was 

unaware of these or other acts of ownership or control,” a lack of 

consent may be established. Id. 

After laying out this analytical framework for determining

whether a landlord-tenant relationship existed, the Court declined 

to decide whether a landlord-tenant relationship existed between 

the motel and residents. Id. at 802. Instead, the Court remanded the 

case, leaving it to the trial court to apply the framework in the first 

instance to the facts of the case. Id.

We follow a similar path today. Because Efficiency Lodge had 

not yet been decided when the district court granted summary 

judgment, we remand to the district court for reconsideration.2

2 Given our de novo standard of review, it is within this Court’s discretion to 

address whether, in light of Efficiency Lodge, there was a general issue of material fact about the existence of a landlord-tenant relationship between Denson 

and the Gerteisens. See Clarks v. Coats & Clark, Inc., 929 F.2d 604, 609 (11th Cir. 

1991). Often, in deciding appeals from summary judgments, we forgo the option to remand to the district court. In this case, however, we exercise our 

discretion to remand for the district court to answer this question in the first 

instance. See id. 

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Using the Efficiency Lodge framework, the district court should determine whether a landlord-tenant relationship existed between 

Denson and the Gerteisens. If a landlord-tenant relationship did not 

exist, then the court’s basis for summary judgment, that is, the application of O.C.G.A. § 44-7-14, was erroneous.3 In turn, the court 

should determine what legal relationship existed between the parties. The court should not consider itself bound to conclude that 

the relationship is either landlord-tenant or innkeeper-guest. Another legal relationship may define the relationship between Denson and the Gerteisens more appropriately. See, e.g., O.C.G.A. 

§§ 43-21-2 (defining depositories for hire as “[p]ersons entertaining 

only a few individuals, or simply for the accommodation of 

3 In granting summary judgment, the district court relied on several Georgia 

cases involving tenants who fell on staircases in properties they had rented and 

unsuccessfully tried to recover from their landlords. In each of those cases, 

Georgia courts applied the out-of-possession landlord statute, O.C.G.A. § 44-

7-14. 

But nothing in those cases tells us whether a landlord-tenant relationship existed here. The tenants in those cases undisputedly were using the premises as 

their dwelling place. See Martin v. Hansen, 755 S.E.2d 892, 893–94 (Ga. Ct. App. 

2014) (noting that Hansen, the injured party, was “leasing” the property from 

the owner and that she was injured “[a]fter living in the home for approximately five months”); Steele v. Chappell, 474 S.E.2d 309, 310 (Ga. Ct. App. 1996) 

(noting that the property owner was the injured party’s “landlady” and that 

the injured party had “leased” the house from her for several years). In contrast, here, there is a dispute about whether Denson was using the cabin as her 

dwelling place and thus whether a landlord-tenant relationship existed. 

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travelers”); 51-3-1 (defining duty of care owed to persons invited 

on premises by owner of land).4

IV.

In light of intervening guidance from the Georgia Supreme 

Court that was not available to the district court at the time of its 

decision, we vacate the judgment of the district court and remand

the matter for further consideration consistent with this opinion. 

VACATED and REMANDED.

4 The Gerteisens urge that even if a landlord-tenant relationship did not exist, 

we should affirm on alternative grounds. See Haynes v. McCalla Raymer, LLC, 

793 F.3d 1246, 1249 (11th Cir. 2015) (recognizing that we may affirm on any 

basis supported by the record). They reassert several arguments, which were 

submitted to but not examined by the district court, why they are not liable to 

Denson even if no landlord-tenant relationship existed. But the district court 

never addressed these alternative arguments. The district court may evaluate 

them in the first instance on remand if it deems necessary. See Mamani v. 

Sánchez Bustamante, 968 F.3d 1216, 1240 n.26 (11th Cir. 2020). 

In addition, because we determine that remand is appropriate for the district 

court to consider anew whether a landlord-tenant relationship existed, we also 

do not reach the question whether, if there was a landlord-tenant relationship 

and § 44-7-14 applied, Denson presented sufficient evidence to establish that 

the Gerteisens were liable under a defective-construction or a failure-to-repair 

theory of liability. 

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