Generally, premises owners face liability for criminal violence on a property when it is reasonably foreseeable. This is because
Generally, premises owners face liability for criminal violence on a property when it is reasonably foreseeable. This is because “[a] property owner is not an insurer of an invitee’s safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable.” Ratliff v. McDonald, 326 Ga. App. 306, 312 (2014). “If the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters.” Days Inn of America v. Matt, 265 Ga. 235 (1995). “Without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises.” Id.
Foreseeability may be established through evidence of similar criminal activity occurring on a defendant’s property. Walker v. Aderhold Props., 303 Ga. App. 710, 712-713 (2010). In determining whether a given crime is “substantially similar,” a court must analyze the “location, nature, and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” Sturbridge Partners v. Walker, 267 Ga. 785, 786 (1997). Although the prior criminal activity must be substantially similar to the crime in question, the crimes need not be identical. Drayton v. Kroger Co., 297 Ga. App. 484, 485-486 (2009). What is required is that the prior incident be sufficient to attract the owner or occupier’s attention to the dangerous condition which resulted in the litigated incident. Id. Further, Georgia courts have generally determined that whether a criminal attack is reasonably foreseeable is usually for a jury’s determination rather than summary adjudication by the courts. Id.
But this standard may be changing. In a recent and notable opinion, Medical Center Hosp. Authority v. Cavender, 331 Ga. App. 469 (2015), the Georgia Court of Appeals overturned the trial court’s decision denying defendants’ motions for summary judgment. On appeal, the Court found that summary judgment was proper in this case because a perpetrator’s homicidal rampage at a hospital was not reasonably foreseeable and thus, the hospital owner and provider of its security services did not have a duty to the victims.
The record showed that Securitas provided security services to Doctors Hospital pursuant to a security agreement for several years prior to this incident. Securitas provided security guards on three different shifts, including one security guard during the day, to monitor Doctors Hospital. It also provided annual security surveys to Doctors Hospital to “assess the efficiency of the security” at Doctors Hospital. These surveys included areas where improved security may be warranted, particularly certain entryways to control ingress and egress, replacement of the closed-circuit TV monitoring system, and additional coverage of the premises by video cameras.
The facts also showed that on March 27, 2008, an assailant entered a hospital with two concealed handguns beneath a light jacket. The assailant deliberately targeted a hospital employee who he believed caused a decline in his mother’s health when she was previously hospitalized, resulting in her death. The assailant proceeded to shoot and kill the hospital employee in a hospital room. Two men in the hall then encountered the assailant and the assailant shot and killed one of them and physically injured another.
A Securitas security guard on duty was patrolling the parking lot of the hospital when he received urgent calls from Doctors Hospital on his radio. The security guard ran to the emergency room and ordered employees to shut down the ER to prevent anyone from entering or leaving. The assailant was unable to enter the emergency room, so he left the hospital and walked to the parking lot. The unarmed security guard followed the assailant through the parking lot and warned visitors to take cover. As the assailant approached his vehicle, another man was exiting the vehicle next to the assailant’s vehicle. The assailant shot and killed the man. Shortly thereafter, law enforcement authorities arrived and the Securitas security guard directed them to the assailant. Gunfire was exchanged and the assailant was apprehended. The surviving spouses of these victims brought actions against the hospital and provider of its security services for wrongful death and personal injury.
The defendants filed motions for summary judgment, claiming that the actions of the assailant were not foreseeable. In response to the motions, the plaintiffs produced a total of forty-three police reports in an effort to demonstrate that the defendants were on notice that something like the assailant’s rampage was foreseeable. It is the plaintiff’s burden to establish that the property owner had knowledge of the previous substantially similar crimes on or near the premises upon each the plaintiffs rely to establish foreseeability. Id. at 474. But the Court determined that these police reports were not persuasive. Specifically, the Court noted that “[o]f primary importance, the reports are most notable for what they do not show.” Id. at 475. The Court explained that none of the police reports from the hospital involved multiple murders, a single murder, a shooting, a weapon, or a significant injury. In fact, the majority of the reports detail nothing more than verbal threats. Only two of the police reports from the neighboring facility involved weapons (late-night armed robberies in the parking lot) although neither of them involved the actual discharge of a weapon and they both occurred more than five years prior to this incident.
The Court further explained “[f]orseeable consequences are those which are probable, according to ordinary and usual experience, or those which, because they happen so frequently, may be expected to happen again.” Id. (citing Brown v. All-Tech Investment Group, 265 Ga. App. 889, 894 (2003)). The forty-two prior incidents that plaintiffs relied on were not substantially similar to the assault that occurred here and “one is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” Id. at 474 (citing Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 68 (1990). In fact, “[f]oreseeable consequences are those which, because they happen so frequently, may be expected to happen again.” Id. at 475 (citing Brown at 894). The record in this case clearly shows that there were no prior instances that were substantially similar to this tragic incident involving an armed criminal assailant seeking vengeance for the death of his mother. Because the assailant’s actions were so unlikely and improbable, the defendants did not have a duty to anticipate his actions. Therefore, the Court of Appeals was correct in determining that summary judgment was appropriate and that the assault in this case was so “unusual, contrary to ordinary experience, and rare that no reasonable jury could find the defendants should have guarded against them.” Id.