Another type of tort litigation, about which much has been written recently, involves torts and criminal acts committed by third-parties while on the property of another. This particular paper will deal with the responsibility of landowners and/or proprietors for these unanticipated torts and criminal acts of third parties. While this area of the law developed some predictability over the past ten years, things changed as a result of the Georgia Supreme Court's Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339(1997). The decision in Sturbridge was of particular significance to the extent that it lowered the standard of forseeability for landowners by expanding what is meant by a "substantially similar prior occurrence."
General Principles
Although all premises liability cases are factually different, certain legal principles are generally applicable. For example;
"The mere ownership of land or buildings does not render one liable for injuries sustained by a person who has entered thereon or therein; the owner is not an insurer of such persons, even when he is inviting them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground for liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted." Emory University v. Duncan, 182 Ga. App. 326, 328, 355 S.E.2d 446 (1987).
Third-Party Torts and Criminal Acts
Third-party torts and criminal act cases typically involve invitees who have been attacked or assaulted, or otherwise injured, by the criminal act of a third-party while on the property of another. Quite often, convenience stores, apartment complexes, shopping malls, etc., are involved. O.C.G.A. § 51-3-1 sets the standard.
"Where an owner or occupier or land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such person for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." O.C.G.A. §51-3-1.
As with other types of premises liability cases, as already mentioned, it is not the mere ownership property, but the proprietor's superior knowledge of dangers that exist on that land. See Cole v. Cracker Barrel , 210 Ga. App. 488, 436 S.E.2d 488 (1993).
One of the most common defenses asserted in cases of this type is that the tortious conduct for which damages are sought, was not the responsibility of the owner/landlord, but was, instead, the result of the unanticipated misconduct of a third person for whom the owner/landlord is not responsible. Bishop v. Mangal Bhai Enterprises , 194 Ga. App. 874, 877, 392 S.E.2d 535 (1990).
This defense is not unlimited, and can be defeated where a plaintiff shows that the owner/landlord had, or should have had, a reasonable apprehension that the presence of third persons created a dangerous condition for invitees on his property. It is on this issue that the decision in Sturbridge has been significant.
Duty of Owner/Landlord to Protect Invitees from Known Dangers
It is the duty of a owner/landlord to protect invitees from injury caused by the misconduct of third persons if there is a reasonable apprehension of danger from the conduct of third persons or if the injury could have been prevented by the owner/landlord through the exercise of ordinary care and diligence. A showing that the owner/landlord had, or should have had, prior knowledge that the presence of third persons created a dangerous condition for patrons on his premises is typically necessary in order to show the existence of a duty on the part of the owner to provide preventative security measures.
Absent such a duty, the random unforeseeable misconduct (or criminal act) of a third person is considered to be the sole proximate cause of the injury and insulates the owner/landlord from liability. The duty owed to invitees involves only a duty to see that the premises are reasonably safe, not a duty to absolutely protect the invitees. In order to find liability in the case of intervening misconduct or a criminal act, the owner/landlord must have had reasonable grounds to believe that the particular criminal act was likely to occur. Donaldson v. Olympic Health Spa, 175 Ga. App. 258, 261, 333 S.E.2d 98 (1985).
Prior Happening of Similar Occurrence Maybe Notice of Dangerous Condition
A common contention made by plaintiffs in these cases is that the owner/landlord, knew, or should have known, about a particular dangerous or defective condition because of the prior happening of a substantially similar occurrence on his property. Whether a prior substantially similar occurrence can be shown, is determined by the particular facts of each case. It is not required that the offenses be identical.
All that is required is that the prior incident be sufficient to attract the owner's attention to the dangerous condition which resulted in the litigated incident. "While the relevance of other occurrences is ordinarily within the sound discretion of the court, 'it is necessary that the condition of the things compared be substantially similar'. (Cit. omitted). Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the Court's discretion can operate." Stated another way, "[N]otice of one defect or of one fact is not notice of another wholly unconnected defect or fact, even though the two may be similar in nature."
Prior Occurence Must be Substantially Similar
In reviewing cases of this nature, Georgia courts at first held that crimes against property were not substantially similar to crimes against persons, and that miscellaneous criminal offenses, such as loitering, drinking, and minor physical altercations were not always substantially similar to violent attacks on patrons. One example of these holdings was McCoy v. Gay, where the Georgia Court of Appeals held that an armed robbery during the early morning hours in a Holiday Inn parking lot, which purportedly did not have sufficient lighting, was not substantially similar to a purse snatching, which had previously occurred as the victims started up a large open stairway on the outside of the motel leading to a balcony which provided access to the motel's rooms. The fact that both crimes occurred in close proximity to guest facilities was not enough. McCoy v. Gay, 165 Ga. App. 590, 302 SE 2d 130 (1983)
One of the earlier, and more significant, cases in which the issue of "substantial similarity" was Savannah College of Art & Design, Inc. v. Roe, 261 Ga. 764, 409 S.E.2d 848 (1991). In Savannah College of Art , the Georgia Supreme Court held that "Evidence that the college is located in an urban environment and that it had received reports of two instances of 'peeping Toms' at the dormitory, of the removal from the dorm of a vagrant and an intoxicated person, of a student surprising a burglar, and of the occurrence of petty thefts is irrelevant because none of the incidence is substantially similar to the sexual assaults which are the bases of this litigation." Ibid. at 765.
Crimes Against Property Not Substantially Similar to Crimes Against Persons
In other words, crimes against property were held not to be substantially similar to crimes against persons, i.e., violent assaults or rapes. The Court went on to state that "In light of the dearth of evidence of the occurrence of prior substantially similar incidence, the College was entitled to summary judgment because there was no evidence sufficient to create a factual issue as to whether the College knew or should have known that its dormitory residents were at risk of a violent criminal sexual assault." Ibid. at 766.
Cases after Savannah College of Art continued the discussion of substantially similar prior occurrences, and continued the distinction between crimes against property and crimes against persons. These cases generally held that the issue of substantial similarity ("Forseeability") was dependent upon the facts of each individual case. No decision ever required that the offenses be identical. All that was required was that the prior incident be sufficient to attract the owner's attention to the dangerous condition which resulted in the litigated incident. Grandma's Biscuits, Inc. v. Baisden, 192 Ga. App. 816, 817, 386 S.E.2d 415 (1989); Tolbert v. Captain Joe Seafood, 170 Ga. App. 28, 316 S.E.2d 11 (1984); Arnold v. Athens Newspapers, 173 Ga. App. at 737; Gay v. Franchise Enterprises, Inc., 203 Ga. App. 870 at 871-872, 418 S.E.2d 135 (1992); and Reid v. Augusta-Richmond County Coliseum Authority, 203 Ga. App. 235 (416 S.E.2d 776) (1992).
Some cases after Savannah College of Art seemed to favor landowners. For example, in Hunter v. Rouse-Atlanta, Inc., 211 Ga. App. 131, 438 S.E.2d 188 (1993), the Georgia Court of Appeals held that a series of incidents in which youth gangs had become intoxicated, gotten into altercations, and harassed customers, were not substantially similar to a shooting death of an Underground Atlanta customer, who was shot during an armed confrontation between two youth gangs. Subsequent decisions also continued to hold that crimes against property were not substantially similar to crimes against persons, and that miscellaneous criminal offenses, loitering, drinking, and altercations were not always significantly similar to "violent" attacks on patrons. Gay v. Franchise Enterprises, Inc., 203 Ga. App. at 871-872; and Grandma's Biscuits, Inc. v. Baisden, 192 Ga. App. at 817.
Another decision in which the Georgia Court of Appeals held that a crime against property was not substantially similar to a crime against a person was Arnold v. Athens Newspapers, Inc. Specifically, it was held in Arnold that three prior burglaries at an Arby's restaurant, the most recent of which had occurred several years earlier, were not substantially similar to a sexual assault upon a newspaper delivery person where the Arby's restaurant was used a drop-off point by the Athens-Banner Herald for its carriers. 173 Ga. App. at 736. See also, Tolbert v. Captain Joe's Seafood, 170 Ga. App. at 28; and Grandma's Biscuits v. Baisden, 192 Ga. App. At 817.
Prior Unarmed Assaults Not Similar to Armed Assaults
In Grandma's Biscuits, Inc. v. Baisden , the Georgia Court of Appeals held that prior unarmed physical assaults were not substantially similar to a shooting in which the plaintiff was injured. 192 Ga. App. at 817. The underlying facts were that a Grandma's Biscuits patron sought damages for injuries he sustained when he was shot, purportedly without provocation or apparent motive, by an unknown assailant. Grandma's Biscuits contended that the assailant's conduct was an unforeseen criminal act for which it could not be held responsible since no shootings or other violent crimes had previously occurred in its restaurant. A police computer print-out, which showed that between 1981 and 1984 various other criminal offenses had been reported at the restaurant, was not sufficient to establish liability. None of the other criminal occurrences on which the plaintiff relied, involved a shooting.
Likewise, Gay v. Franchise Enterprises, Inc. held that prior "(a)ltercations, loitering and other breaches of the peace" at a Hardee's restaurant were not substantially similar to a situation in which a customer was beaten and injured while attempting to leave the restaurant. The customer and his wife, after getting up from their table, were blocked from leaving the restaurant by another customer, a fight broke out after the plaintiff shoved the other customer, and the plaintiff was beaten by several other young men who joined the fight. 203 Ga. App. at 871. See also, Modesitt v. Waffle House, 213 Ga. App. 381, 444 S.E.2d 412 (1994); and Woods v. Kim , 207 Ga. App. 910, 429 S.E.2d 262 (1993), where the Georgia Court of Appeals held that the fact that a store was located in a high crime area and that numerous crimes had occurred on the premises, was not sufficient to establish liability to a plaintiff, who, as he left the store, was confronted by an assailant armed with a sawed off shotgun, and shot. No other prior criminal acts were found to be substantially similar to the shooting. In its decision, the Court found that the proprietor did not know of the dangerous condition giving rise to the attack, and that "(k)nowledge of the conditions would be necessary in order to show the existence of even an initial duty on the part of the (appellee) to provide preventive security measures." Ibid at 911.
Forseability and Substantially Similar
In an apparent reaction to the Savannah College of Art decision, the Georgia Court of Appeals reviewed the issues of substantial similarity and forseeability in Matt v. Days Inns of America, 212 Ga. App. 792, 443 S.E.2d 290 (1994). The underlying evidence was that there had been 82 crimes committed at the Days Inn in the three years before the attack on Richard Matt. Police records showed that one robbery occurred in a guest room, and that the other 81 crimes were committed in the parking lot, including a purse snatching and a robbery by force. The plaintiffs also introduced evidence from three other airport hotels located within a one-quarter mile radius of the Days Inn, which showed that at one hotel alone there had been 184 parking lot crimes, including five armed robberies, one strong arm robbery, two rapes, ten assaults, and one kidnaping. Another nearby hotels had 257 parking lot crimes, including four armed robberies, one strong arm robbery, one rape, and 26 assaults. A third hotel had two assaults and one kidnaping. In addition, the security guard at the Days Inn testified that he did not feel safe patrolling the premises, and that sometime prior to the shooting of Richard Matt, he had requested permission to carry a weapon, wear a bullet proof vest, and carry a portable telephone.
The issue before the Court in Matt was to determine whether or not the robbery by force three years earlier was substantially similar to the armed robbery in which Richard Matt was shot. The court prefaced its holding by stating, "substantially similar does not mean identical, and it is not a question whether a weapon was used, but whether the prior crimes should have put an ordinarily prudent person on notice that the hotel's guests were facing increased risk. All that is required is that the prior incident be sufficient to attract the hotel's attention in the dangerous condition which resulted in the litigated incident." Ibid . at 794. The Court then held that the record of criminal activity in the parking lots of nearby hotels, including serious crimes against persons, when coupled with the record of criminal activity in its own parking lot, was sufficient to create a genuine issue of material fact on whether Days Inn was put on notice that the criminal conduct against its guests was foreseeable.
Court Questions to Determine Adquacy of Security Measures
The Court also found questions of fact concerning whether or not the security measures implemented by Days Inn were adequate or whether they had been performed in a negligent manner. For example, the Court questioned:
- Whether or not the visible presence of a security guard in the parking lot (as was required by Days own security procedures but not following this case) might have prevented the robberies;
- Whether or not Days Inn was negligent in that its unarmed security guard remained safely in his car while allowing Richard Matt to cross the parking lot;
- Whether or not Days Inn was negligent in not maintaining an armed security guard force given the dangers to be found in its parking lot; and
- Whether or not Days Inn was negligent in not installing a security gate that could have prevented a drive through robbery attempt.
Substantially Similar Not a Pre-Requiste for Forseeability
In Wallace v. Boys Clubs of Albany , 211 Ga. App. 534, 536, 439 S.E.2d 746 (1993), the Court stated in a footnote that the decision in Savannah College of Art & Design v. Roe, did not absolutely hold that forseeability could only be established by showing a prior substantially criminal act. "An absolute requirement of this nature would create the equivalent of a 'one free bite rule' for premises liability, even if the landowner otherwise knew that the danger existed. Evidence of a prior substantially similar act is one way to establish notice and forseeability, and in most cases it will be the only possible way to do so. It is conceivable, however, that a danger could be so obvious that an issue for a jury's determination could exist regarding notice and/or forseeability despite the absence of a prior similar incident on those premises."
Despite these decisions, the Georgia Supreme Court felt compelled in Sturbridge Partners, Ltd. v. Walker, to revisit the issue of forseeability. Again, the Court held that "in determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the forseeability of risk, the Court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question . . . while the prior criminal activity must be substantially similar to the particular crime in question that does not mean identical. . . what is required is that the prior incident be sufficient to attract the landlord's attention to the dangerous condition which resulted in the litigated incident." Ibid. at 786.
The Court then went on to hold that three prior burglaries which had occurred at the defendant's apartments were substantially similar to the occurrence being litigated to get the plaintiff to a jury on the issue of forseeability. The facts being litigated involved a plaintiff, who was raped and sodomized in her apartment at approximately 12:30 a.m. The defendant had moved for summary judgment, asserting that there had been no prior rapes or other violent sex crimes on its property, and as a consequence, the rape and sodomization of the plaintiff was not reasonably foreseeable. The defendant relied on the decision in Savannah College of Art & Design v. Roe, for the proposition that a landlord's knowledge of prior criminal acts against property cannot establish the forseeability of a brutal sex crime as a matter of law.
The Supreme Court rejected this analysis and stated that "such a restrictive and unflexible approach does not square with common sense or tort law, and represents a significant departure from the person of this Court." Ibid. The Court then concluded by stating that the defendant (Sturbridge) had actual knowledge of two of three prior burglaries, and that although the burglars were committed when the apartments were vacant, it was reasonable to anticipate an authorized entry might occur while an apartment was occupied and personal harm to the tenant might result.
More recently, Georgia appellate courts have followed the trend started with Matt v. Days Inn and then accelerated with. Sturbridge Partners, Ltd. v. Walker. See, McNeal v. Days Inn of America, 230 Ga. App. 786, 498 S.E.2d 294 (1998) cert. denied where the Court of Appeals held that several criminal acts in the Days Inn parking lot, including the arrest of several persons for a violent melee which had begun in a nearby housing project, were substantially similar to the assault and robbery of the plaintiffs, who were walking back to the Days Inn from a nearby Shoney's Restaurant after dinner.
On this same issue of "substantial similarity," the fact that a proprietor knows that one of its customers was loud and boisterous has been held not to constitute evidence that the proprietor knew that the customer was aggressive or threatening. WD Enterprises, Inc. v. Barton, 218 Ga. App. 857, 463 S.E.2d 529 cert. denied (1995). Likewise, the mere fact that the incident occurred in a bar did not make it foreseeable. Nor did the fact that the bar gave training to its employees about how to deal with intoxicated customers, or that a waitress had refused to serve a particular customer alcohol, imply that the proprietor had notice of the customer's aggressiveness.
A Prior Identical Crime Not Necessary for Forseability
Even before the recent decision in Sturbridge, the defense of "substantial similarity" could not be taken too far. "[I]n order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen some injury would result from his act or omission, and consequences of a generally injurious nature might result." Bayshore Co. v. Pruitt, 175 Ga. App. 679, 680, 334 S.E.2d 213 (1985). In other words, it is not necessary that prior identical injuries or attacks have occurred if it can be shown that the proprietor was otherwise made aware of the particular defective or dangerous condition which created an opportunity for the plaintiff to be injured. For example, prior burglaries could be argued to create notice of defective locks, windows, etc., and create liability where a tenant was raped, so long as entry was gained by the same defective condition demonstrated by earlier burglaries. cf, Warner v. Arnold, 133 Ga. App. 175, 178, 210 S.E.2d 350 (1974); and Demarest v. Moore, 201 Ga. App. 90, 92, 410 S.E.2d 191 (1991).
One case that seems to have anticipated the result in Sturbridge, was Bayshore Co. v. Pruitt, 175 Ga. App. 679, 334 S.E.2d 213 (1985). In this case, a plaintiff who resided in a second story apartment, the sliding door of which was not equipped with a Charlie bar, was attacked after an intruder was able to gain entry into her apartment by prying the sliding glass door open. In reviewing an objection to plaintiff's tender of evidence concerning 17 prior criminal incidences that had occurred at the apartment complex during the three years prior to her attack, the Court stated that
"Admissibility of these incidences not precluded solely because they all occurred on ground level apartments and/or involved crimes against property. '(I)n order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen some injury would result from his act or omission, in that consequences of a generally injurious nature might result." Bayshore Co. v. Pruitt, 175 Ga. App. at 680.
The key factor is knowledge, whether actual or constructive, of the dangerous condition which leads to the injury, and not the nature of the injury itself.
Owner/Landlord Not Insurer of Invitee's Safety
While an owner/landlord has a duty to exercise ordinary care for the safety of invitees, he is not the insurer of his invitee's safety. The owner/landlord is only bound to exercise ordinary care to protect invitees from unreasonable risks of harm. Collins v. Sheperd, 212 Ga. App. 54, 56, 441 S.E.2d 458 (1991); and Knudson v. Lenny's, 202 Ga. App. 85, 87, 413 S.E.2d 258 (1991). Likewise, "a owner/landlord does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required."
Another issue often discussed is whether or not an owner/landlord has an affirmative duty to provide security. This decision is a thankless one. It is "damned if you do, and damned if you don't." Lau's Corp. v. Haskins, 261 Ga. 491, 493, 405 S.E.2d 474 (1991). The starting point is to realize that other than the duty of care owed by an owner/landlord to exercise reasonable care to protect invitees, there is generally no affirmative duty to provide security. Camelot Club Condo Assn. v. Bonner, 207 Ga. App. 634, 428 S.E.2d 625 (1993). Likewise, there is no affirmative duty that owners/landlords post signs warning of a "generalized risk of crime." Lau's Corp. v. Haskins, 261 Ga. at 493. However, once an owner/landlord decides to provide security, or is forced by the happening of criminal occurrences, to provide security, he must do so in a non-negligent manner. "We recognize that if a defendant undertakes to do more for the benefit of another person than the law requires, he may be liable if he negligently performs that undertaking. (Cites omitted).
Such negligence does not, however, eliminate the need to determine whether or not an intervening criminal act was reasonably foreseeable." Shell Oil v. Diehel, 205 Ga. App. 367, 368, 422 S.E.2d 63 (1992). Where an owner/landlord, who has undertaken to provide security, is alleged to have failed to use reasonable care in carrying out the undertaking, a plaintiff cannot recover unless he can show either a detrimental reliance or an increased risk of harm. Copperwood v. Auld, 175 Ga. App. 694, 334 S.E.2d 22 (1985). Nor should it be overlooked that the owner/landlord is only bound to exercise ordinary care to protect invitees from unreasonable risks of harm. Lau's Corp. v. Haskins, 261 Ga. at 492. "A owner/landlord does not become an insurer of safety by taking some security precautions on behalf of invitees.
Providing Security Does not Increase Standard of Care
Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required. Collins v. Sheperd, 212 Ga. App. at 56. On occasion, an owner/landlord, or his employee may witness the attack or assault for which damages are sought. In such cases, the owner/landlord and his employees have a duty to come to the aid of the victim. Shell Oil Co. v. Diehel, 205 Ga. App. at 368.
This duty on the part of the owner/landlord and his employees, to the come to the aid of an invitee is even stronger where it is shown that the employees' duties included looking out for the safety of the (apartment) premises and residents. Cooperwood v. Auld, 175 Ga. App. at 694. Where, however, the attack and resulting injury for which damages are sought happens suddenly and without warning, and neither the defendant owner/landlord nor his employees can, by the exercise of ordinary care, discover and prevent the injury, there may be no recovery. A landlord's obligation to come to the aid of an invitee who is in danger, or is being attacked by a third party, can be satisfied by calling the police. Gay v. Franchise Enterprise, 203 Ga. App. at 871; and Modesitt v. Waffle House, 213 Ga. App. at 383.
Actual Knowledge of Prior Criminal History Needed
Quite often in these cases, plaintiffs ask whether or not an owner/proprietor has investigated the history of his property for criminal occurrences as part of the discovery conducted after a lawsuit has been filed. More often than not, the owner/proprietor has not investigated the history of his property for criminal occurrences, and has not obtained copies of police reports for crimes conducted in the general area. While on its face this may appear damaging to the owner/proprietor, there is no authority in Georgia imposing a duty upon an owner/proprietor to investigate police department records to determine whether or not criminal activities have occurred on his property. See, SunTrust Banks, Inc. v. Killebrew, 266 Ga.109, 464 S.E.2d 207 (1995). To establish knowledge on the part of an owner/proprietor, it is necessary for a plaintiff to show that the owner/proprietor or one of his employees, had knowledge of prior criminal occurrences on the property. See, Millan v. Residence Inn by Marriott , 226 Ga. App. 826, 487 S.E.2d 431 (1997).
Comparative Negligence Arguments Not Effective
Defendants, on occasion, attempt to rely on the plaintiffs' comparative negligence or assumption of the risk in third-party assault cases. This can be very dangerous from a jury standpoint, and more often than not offers very limited benefit. When using comparative negligence, etc., as an affirmative defense in assault cases, defense counsel has to be very careful not to appear to be beating up on a plaintiff who has already been assaulted, raped, etc.
While comparative negligence and assumption of the risk are commonly asserted as defenses in slip and fall cases, they are not nearly as effective where security issues are involved. Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 158, 342 S.E.2d 468 (1986). The rationale for the equal knowledge defense is a presumption that a plaintiff, knowing of a particular danger, can, by the exercise of ordinary care for his own safety, avoid the consequences of the dangerous condition and/or the defendant's negligence.
However, the plaintiff's equal knowledge will not bar recovery where he can show that he was attacked, injured, whatever while using ordinary care to avoid the alleged dangerous condition. Clark v. Carla Gay Dress Co ., 178 Ga. App. at 160. For example, when the conduct of persons on the premises is such that the owner/landlord from either actual or constructive knowledge should reasonably apprehend danger to his invitee/tenants, it is the owner/landlord's duty to interfere to prevent injury, and the failure to interfere to prevent injury, at least where such opportunity exists, may constitute negligence.
"When the alleged breach of the provider's duty to keep the premises safe is based on its negligent failure to protect the invitee from consequences of the acts of the third party which the invitee himself was powerless to prevent by ordinary care, it is of no benefit to ponder whether the invitee knew of the incipient danger, and it would be illogical to excuse the proprietor's negligence merely because the plaintiff invitee was aware of a potential peril he could not escape."
Owner/Landlord Duty Does Not Extend Beyond Premises
One new development on the issue of forseeability, which is of some interest, is whether or not an owner/proprietor is responsible for injuries, etc., is caused by a drive-by shooting. The case was Hillcrest Foods, Inc. v. Kiritsy, 227 Ga. App. 554, 489 S.E.2d 547 (1997). In this particular case, plaintiff was injured when he was shot by an occupant of a passing car while leaving a Waffle House restaurant. The plaintiff was the unintended victim of the shooter. The shooter had actually intended to shoot his wife, who was a waitress at the restaurant. After acknowledging that a landowner has an obligation to keep the approaches to his property safe, the Court of Appeals held that this obligation did not extend to automobiles passing by the owner's property. "The premises owner's duty to keep the approaches safe does not generally extend to the busy public thoroughfare on which the premises is located, where the owner has no legal right to control such thoroughfare." 227 Ga. App. at 557.
The Court of Appeals in Kiritsy also stated that a drive-by shooting is a totally different type crime than situations in which all of the actions constituting the crime occur on the defendant's property. "In this drive-by shooting, the perpetrator was not even on the defendant's property, but rather was traveling on a busy public thoroughfare. It is difficult to imagine what effective action Hillcrest could reasonably have taken which could have prevented a drive-by shooting even had there been a prior such event." Despite testimony from the plaintiff's security expert that a security guard would have been a deterrent, the Court of Appeals held that a drive-by shooting is such a transitory act that it can be carried out at any time and place where the defendant happens to be. Lastly, because of an absence of prior substantially similar events, the Court of Appeals held that the shooting of the plaintiff was not foreseeable.
Conclusion
As should be obvious by now, this particular area of the law, and especially the issue of what constitutes a substantially similar prior event, is especially fact sensitive, and will continue to be so for some time. This was made even more obvious by the Georgia Supreme Court's decision in Sturbridge Partners, Ltd. v. Walker, where the Court pretty much undid the seemingly established concept that crimes against property are not substantially similar to crimes against persons. Sturbridge was not, however, the first case to doubt the wisdom of the decision reached in Savannah College of Art & Design v. Roe .