"Georgia Supreme Court Provides Guidance for Parties Involved in Premises Liability Cases."
On June 30, 2023, in a long-anticipated opinion issued in connection with three consolidated appeals, the Georgia Supreme Court provided extensive guidance to parties in premises liability cases involving third-party criminal acts. As the Court noted at the outset, the facts and the legal issues presented in each of the three cases varied. However, the Court took the opportunity to discuss multiple “fundamental principles of premises liability under Georgia law.” The Court also clarified an issue relating to duties owed to third parties by security service providers. As discussed below, the Court left undecided one issue relating to the apportionment of damages under the 2005 version of O.C.G.A. section 51-12-33 where only one defendant remains in the case at the time of trial.
A landowner or occupier can have liability for injuries caused by third-party criminal acts.
The Court began its discussion by focusing on O.C.G.A. section 51-3-1, which imposes on a landowner “a duty ‘to exercise ordinary care in keeping the premises and approaches safe.’” Applying that statute, the Court concluded that “the reasonable foreseeability of third-party criminal conduct is properly considered as part of a proprietor’s duty to exercise ordinary care in keeping the premises safe.” However, the Court made it clear that the existence of that duty does not establish the proprietor’s liability for injuries resulting from such criminal acts. Rather, the finder of fact must also assess whether the “proprietor acted reasonably in the face of the particular foreseeable risk or whether the proprietor breached its duty to do so.” The factors to be considered in making that assessment include “the likelihood and severity of the foreseeable harm” as compared to the “cost and feasibility of additional security measures” that could have prevented the injury. If the factfinder finds that the proprietor’s security measures were reasonable despite the foreseeability of a crime, or if the plaintiff fails to present evidence that the security measures violated the standard of care, a proprietor will not be liable in negligence for the plaintiff’s injury.
Foreseeability of a specific crime is generally a question for the jury.
The Court next addressed when foreseeability of the criminal act (and when the duty arises) is a question to be decided by a judge or jury. As noted in the opinion, the existence of a legal duty is generally a question of law for the court to decide. However, because the existence of a legal duty in premises liability cases “turns on the presence of certain factual circumstances, the factfinder also has a role to play in determining whether a third party’s criminal attack was reasonably foreseeable.” For that reason, the Court concluded that, except in “’plain and palpable cases,’” the question of reasonable foreseeability in this context is generally a question for the jury to decide.
Foreseeability of a third-party criminal act is determined from the totality of the circumstances.
The Court next turned to how the jury is to determine whether a criminal act was reasonably foreseeable by the proprietor. While many factors can be considered, the Court confirmed that “evidence of substantially similar prior criminal conduct is typically central to the inquiry.” Ultimately, according to the Court, the determination of foreseeability “depends on the ‘location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.’” The Court went on to reject a “bright-line rule requiring evidence of a ‘substantially similar’ prior crime” despite two prior Supreme Court cases that could be read to establish such a bright line. The Court closed its discussion on this issue saying “[w]hile evidence of substantially similar prior crimes – crimes with a likeness, proximity, or other relationship to the criminal act at issue that give a proprietor reason to anticipate such an act occurring on the premises – may be one of the most probative considerations in answering [the question of foreseeability], it is not a required consideration, and other circumstances may be relevant, too.” Thus, the “totality of circumstances” test is a broad test and, in most cases, will not allow a trial court to grant summary judgment on foreseeability.
A party rendering security services to the proprietor may owe a duty of care to the third persons based on the Restatement (Second) of Torts § 324A.
One of the three cases decided arose from claims against a defendant rendering security services to an owner or occupier of land. The defendant’s motion for summary judgment based on the absence of a legal duty owed was rejected by the trial court. The Court of Appeals reversed, holding that the defendant owed no duty to the plaintiffs (1) as third-party beneficiaries of the defendant’s contract with the proprietor or (2) under Section 324A of the Restatement (Second) of Torts because that section of the Restatement did not apply to premises liability claims. The Supreme Court reversed. In its opinion, the Court noted that Section 324A was an accurate statement of the common law in Georgia and applies in all circumstances in which a party undertakes to render services which he or she should recognize as necessary for the protection of a third person, including providing security at the request of a landowner.
A jury verdict apportioning no fault to the third-party committing the criminal act is not necessarily void.
Another of the three cases decided by the Court involved entry of a jury verdict apportioning 95% of the fault for the plaintiff’s injuries to the property owner, 5% to the plaintiff, and 0% to the third-party criminal who injured the plaintiff. The property owner argued on appeal that the verdict was “inconsistent” and, therefore, void. As noted by the Court, the failure of the jury to apportion any fault to the shooter “appears contradictory on its face.” Specifically, the Court stated that it “had doubts that a jury could logically determine both that a defendant is at fault for failing to protect against a third party’s intentional tortious conduct and that the third party is not at all at fault for his intentional conduct.” However, the trial court’s instruction to the jury on apportionment of liability directed the jury to “consider the fault of all persons or entities whose negligence contributed to the injury or damage.” Since a “logical jury could have found that an intentional tortfeasor, was not negligent in inflicting injury on the plaintiff,” the verdict could be construed as being consistent and would not be set aside. At the trial court level, the defendant did not object to this jury instruction which discussed apportionment based on negligence instead of fault.
In addition to challenging the verdict as being inconsistent, the proprietor argued that the evidence was insufficient to support the jury’s apportionment of no fault to the shooter. The version of Section 51-12-33(b) in effect at the time of trial (then 2005) has been interpreted as not applying in single defendant cases. In this case, there were originally multiple defendants, but only one remained at the time of trial. Because the Court concluded that the verdict was not void, it refused to decide the issue presented – i.e., whether apportionment under the prior statute was possible where all but one defendant were dismissed prior to trial.
The take-aways.
With this decision, the Georgia Supreme Court gave guidance on premises liability issues, specifically where a third-party criminal attack on an invitee gave rise to an injury on the premises. In a concurring opinion, however, Justice McMillan expressed concern and criticism about the majority reaching beyond the specific issues in the cases before it to create these broad guidelines. The Court did not reach so far as to deal with the policy issues raised by amici, choosing instead to leave those issues to the General Assembly to decide. It is worth noting that the apportionment issue left open by the Court could arise again. The legislature amended Section 51-12-33 effective May 13, 2022, to clarify that apportionment is appropriate in single defendant cases. However, the amended statute applies only to claims based on causes of action that accrued after the effective date. As a result, a hypothetical claim arising from an injury that occurred on May 12, 2022 could be filed up until the running of the statute of limitation period in May 2024. But the window for bringing such claims is closing. Finally, given the Court’s opinion regarding the breadth of evidence that is sufficient to create a jury question in determining the foreseeability of third-party criminal activity, we anticipate that many more premises liability cases will proceed to trial.
For more information on Georgia Supreme Court’s guidance for parties involved in premises liability cases, please contact WWHGD’s Georgia-based premises liability attorneys.