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Georgia
Law Monitor
THE
LIABILITY OF OWNERS AND OCCUPIERS
OF LAND FOR CRIMINAL ATTACKS IN GEORGIA
By: Dwight A. Meredith and
Hugh C. Wood
Wood & Meredith
Atlanta, Georgia
http://www.woodandmeredith.com
Copyright,
1997
All Rights Reserved
I.
_INTRODUCTION
It appears that the law regarding civil liability of owners and
occupiers of land for personal injuries caused by criminal attacks
occurring on the owned property may be in a state of flux in Georgia.
Savannah College of Arts and Design v. Roe, 261 Ga. 764, 409
S.E.2d 848 (1991), was the law in Georgia, until it was overruled by, Sturbridge
Partners, LTD. v. Walker, ___ Ga. ___, ___ S.E.2d ___ (1997), on
March 17, 1997. Now, with the Supreme Court's acceptance of Certiorari
in Doe v. Prudential - Bache/A,G. Spanos Realty Partners, we may
see the Georgia Supreme Court revisit the area of Premises Liability and
more fully refine the Rule issued in Sturbridge.
An approach to this area of negligence law is needed that will avoid
making owners and occupiers of land insurers for everyone who enters
their property while imposing liability on owners who, after having
receiving notice of a dangerous condition on their property, take no
steps or inadequate steps to remedy the problems when that failure
results in serious personal injury.
This article will first examine the current state of the Georgia law
in this area and then will make a modest proposal to refine the holding
in Sturbridge to balance those interests.
II.
_CURRENT STATUS OF THE LAW
The
Georgia cases in this area are in agreement as to general principles.
The owner of property is not an insurer of a tenants safety, but must
use ordinary case to keep the premises safe. A landlord may be
responsible for damages caused by a criminal attack of a third party
only when the criminal attack is foreseeable. The injured party
generally seeks to introduce evidence of prior criminal activity on the
premises in order to establish foreseeability. Foreseeability generally
turns on whether the prior criminal acts are sufficiently similar to the
act on which the action is based.
In order to be substantially similar, the prior criminal act need
not be identical. Georgia does not have a "one free bite" rule
for premises liability. To determine whether the prior criminal activity
is sufficiently similar the court looks to such factors as the
similarity of location, nature, and extent of the prior criminal
activities and their likeness, proximity or other relationship to the
crime sued on.
In the 1991 Supreme Court decision in Savannah College of Arts
and Design v. Roe, 261 Ga. 764, 409 S.E.2d 848 (1991), (hereinafter
"SCAD") the Court had to decide whether sexual assaults
by an intruder on students was foreseeable and, therefore, whether the
students tort claims against the school could survive summary judgment.
The plaintiffs put forth evidence showing that the school was located in
an urban environment, that there had been two incidents of "peeping
Toms," that a vagrant had to be removed from the dorm, that a
student surprised a burglar and some petty thefts.
The Supreme Court ruled that those incidents were not sufficiently
similar to the sexual assaults to be foreseeable and that the school,
therefore, did not have a duty to exercise ordinary care to protect the
students from the sexual assault. The trial court's denial of the
school's motion for summary judgment was, therefore, reversed.
The decisions following SCAD drew the distinction as being
between crimes against property or public morals on the one hand and
crimes against persons on the other hand. See e.g. Matt v. Days Inn
of America, 212 Ga. App. 792, 443 S.E. 2d 290 (1995), aff'd, 265 Ga.
235, 454 S.E.2d 507 (1995); Piggly Wiggly Southern v. Snowden,
219 Ga. App. 148, 464 S.E. 2d 220 (1995). Under those decisions, crimes
against property or public morals were not, as a matter of law,
sufficiently similar to impose liability on the owner of property for a
criminal attack.
III.
_STURBRIDGE OVERRULES SCAD:
Against
that background, on March 17, 1997, a divided Supreme Court decided the
case of Sturbridge Partners, LTD. v. Walker, ___ Ga. ___, ___
S.E.2d ___ (1997) (Case No. S96G1117). In Sturbridge, Walker was
raped and sodomized by an intruder in her apartment shortly after
midnight. Walker brought suit against the apartment complex owners
contending that the attack was foreseeable as a result of prior criminal
activity on the property and that the defendants failed to use ordinary
care to protect her.
The plaintiff produced evidence of three (3) prior burglaries on the
premises and the evidence showed that the defendants were aware of two
of those burglaries. The trial court granted defendant's motion for
summary judgment finding that the attack was not foreseeable. The Court
of Appeals reversed. Walker v. Sturbridge Partners, Ltd., 221 Ga.
App. 36, 470 S.E.2d 738 (1996) (Per Curiam).
Under a strict application of the property crime/personal crime
distinction that arose out of SCAD, it would seem that the sexual
assault was not foreseeable as a result of two incidents of the property
crime of burglary known to the defendants.
The Supreme Court, however, in the 4-3 Sturbridge, supra,
decision authored by Justice Hines, affirmed the Court of Appeals
decision. The Court first stated the general rule that a landlord's duty
to protect tenants extends only to foreseeable third-party criminal
attack.
The court went on to note that the issue of reasonable
foreseeability is generally for the jury.
The Sturbridge partnership had relied on the property crime/personal
crime distinction of SCAD. The Court however, rejected that
argument.
Sturbridge relies on ...(SCAD) for the proposition that a
landlord's knowledge of prior criminal acts against property cannot
establish the foreseeability of a brutal sex crime as a matter of law,
and therefore, no duty arose in the instant case. Such a restrictive and
inflexible approach does not square with common sense or tort law... To
the extent that ... (SCAD) supports such an analysis for
determining foreseeability, it is overruled. (Emphasis Supplied).
Thus, under Sturbridge, evidence of prior criminal activity
on or near the property will create a jury issue of the foreseeability
of the incident in which the plaintiff was harmed. The classification of
the prior criminal acts as property crimes or crimes against persons may
affect a jury's determination of foreseeability but does not insulate
the property owner from liability as a matter of law.
Chief Justice Benham, the author of SCAD, filed a strong
dissent in which he was joined by two other justices. In dissent, Chief
Justice Benham argued that the Sturbridge rule made owners of
land "virtual insurers" of persons who come on their property.
The dissent went on to argue that SCAD should not have been
overruled as the inflexible property crime/ personal crime distinction
provided predictability within the law.
The dissent argued that the Sturbridge Rule would change the
result of come cases recently decided by the Court of Appeals. In
particular, Chief Justice Benham argued that new the Sturbridge
analysis would change the result in Doe v. Prudential-Bache/A,G.
Spanos Realty Partners, 222 Ga. App. 169, 474 S.E.2d 31 (1996).
IV.
_CERTIORARI IN DOE V. PRUDENTIAL
We
will now have a chance to see if the Sturbridge dissent is
prescient in regard to Doe because on April 24, 1997, the Supreme
Court granted certiorari to review the Court of Appeals decision in that
case. In the acceptance of Certiorari the court noted that it was
particularly interested in whether:
In
light of this court's decision in Sturbridge, did plaintiff present
sufficient evidence to create a factual issue regarding the
defendant's knowledge of danger to its residents on its premises?
In
Doe, plaintiff was attacked on a Sunday afternoon in the garage
beneath her apartment building. The assailant threatened her with a
knife, raped her and stole her purse. Plaintiff brought suit against the
apartment complex owners and asserted, inter alia, a negligence claim.
Defendant moved for and was granted summary judgment on plaintiff's
claims. The Court of Appeals affirmed.
The evidence submitted on the motion for summary judgment showed
that there had never been a prior physical attack in the complex
garages. Plaintiff did produce evidence, however, of nine (9) thefts and
three (3) acts of vandalism in the garages in the five months preceding
the rape. Relying on the property crime/personal crime distinction of SCAD
and Snowden, the Court of Appeals held that the evidence of prior
thefts and prior vandalism did not make a violent sexual assault
foreseeable and, therefore, that summary judgment was proper.
Under a Sturbridge analysis, the issue of reasonable
foreseeability is usually a jury issue. Thus, if a rational jury could
find that evidence of the prior thefts and prior vandalism were
"sufficient to attract the (landlord's) attention to a dangerous
condition which resulted in the litigated (incident). Sturbridge,
supra, at ____, then the Court of Appeals decision must be reversed and
a jury trial held.
The issue of whether the dangerous condition resulted in the harm
may lead to an analysis of whether reasonable measure that the landlord
could have taken to halt the prior incidents would have been effective
to prevent the litigated incident.
For instance, if all of the prior criminal activity occurred at
night and if the installation of lights in the garages would have
prevented the prior criminal acts, one could argue that the dangerous
condition was a lack of lighting in the garage. Since the rape in Doe
occurred in broad daylight, the installation of lights would not have
prevented that particular rape. It is difficult to see why a defendant
should have liability for the rape based on a failure to remedy the
dangerous condition of a lack of lighting in the garage if the remedy of
installing additional lighting would not have prevented the subsequent
rape.
Alternatively, if the dangerous condition is found to be allowing
access to the garage by criminal elements, then perhaps fencing or
gating would have prevented such entry and would have prevented a
recurrence of the thefts and vandalism.
If a jury is convinced that the dangerous condition of the property
was a lack of fencing and gating and that a reasonable land owner would
have responded to the theft and vandalism incidents by installing fences
and/or gates and if the jury is convinced that such a response
would have prevented the rape, then imposing liability on the land owner
for damages arising from the rape seems appropriate.
V.
_A PROPOSED REFINEMENT OF STURBRIDGE
The
examples above suggest that the test for whether the prior criminal acts
are substantially similar to the litigated incident should turn on
whether a reasonable response by the landlord to prevent a recurrence of
the prior incidents would have prevented the litigated incident. That
approach would avoid the inflexibility of the SCAD property
crime/personal crime distinction while avoiding the problems of making
the property owner an insurer of everyone who enters onto the property.
As long as the property owner takes reasonable steps to remedy a
condition that has been shown to result in criminal activity, no
liability will attach. If the property owner fails to take steps to
prevent a recurrence of crimes and if such remedial measures would have
prevented a later crime, then the landlords is liable for all damages
proximately caused by the failure.
A landlord may, therefore, avoid liability by showing that after a
crime occurred on the property, he took reasonable steps to prevent a
recurrence. The landlord, therefore, is not an insurer.
Similarly, if a plaintiff can show that the landlord took no
steps to prevent a recurrence or inadequate steps, and that
reasonable remedial measure would have prevented the subsequent
crime, the plaintiff may recover.
That test does not depend on the mechanical application of
artificial distinctions such as the SCAD test. It does not make
the landlord liable in all circumstances. Thus, the test proposed above
is a balance of the interests of all parties.
The test outlined above will allow cases based on negligence to go
to the jury except in plain, palpable and indisputable cases. Issues of
reasonableness and proximate cause are decided by juries in garden
variety negligence cases and it is difficult to see why the alleged
negligence of owners and occupiers of land should be treated
differently.
VI.
_CONCLUSION
The
decision to grant certiorari in Doe gives the Georgia Supreme
Court an opportunity to refine the Sturbridge rule to avoid the
twin problems of the inflexibility of SCAD approach and the
landlord as insurer. We shall see if the court seizes that opportunity.
Dwight
Meredith
Hugh Wood
May 7, 1997
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