Adler's Package Shop, Inc. v. Parker

• Decision Date: 05 January 1989
• Docket Number: No. 77212,77212
• Citation: 190 Ga.App. 68,378 S.E.2d 323
• Parties: ADLER'S PACKAGE SHOP, INC. v. PARKER.
• Court: Georgia Court of Appeals

Page 323

378 S.E.2d 323

190 Ga.App. 68

ADLER'S PACKAGE SHOP, INC. v.PARKER.

No. 77212.

Court of Appeals of Georgia.

Jan. 5, 1989.

Rehearing Denied Jan. 30, 1989.

Certiorari Denied March 8, 1989.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Stefan E. Ritter, Atlanta, for appellant.

Ashman & Zipperer, Charles R. Ashman, Ralph R. Lorberbaum, Savannah, for appellee.

SOGNIER, Judge.

Joann Parker brought suit against Adler's Package Shop, Inc., for injuries sustained when she was attacked and shot by an acquaintance on a public sidewalk outside the package shop.The trial court denied the package shop's motion for summary judgment, and we granted its application for interlocutory appeal.

Construed favorably to appellee as the respondent below, the record reveals that appellee and her assailant, Sherold Jackson, had an adversarial relationship for a number of months before the attack at issue.The two women had exchanged harsh words on several occasions, and each had sworn out a peace warrant against the other.Appellee testified by deposition that she was afraid of Jackson because Jackson had stolen personal belongings from appellee, burned clothing hanging on her clothesline, and even threatened to kill appellee.On the evening of October 14, 1985, appellee walked with her children to appellant's package store, and while making a purchase spotted Jackson outside the premises.Appellee testified that she quickly left the store, but Jackson confronted her on the sidewalk, pulled out a knife, and after a brief struggle stabbed appellee in the arm.Jackson then took a handgun from her purse and shot appellee, injuring her severely.Appellee also testified that Grady Knight, the private security guard employed by appellant, came outside the store during the altercation and told the two women to stop fighting, and that when Jackson pulled out the weapons Knight asked her to drop them.Appellee acknowledged in her deposition that she had never mentioned her feud with Jackson to anyone associated with appellant, and that she did not ask Knight for assistance.

1.In its first two enumerations, appellant contends the trial court erred by denying its motion for summary judgment because no material factual question is presented regarding a breach of duty for which it could be held liable for appellee's injuries.Appellant argues that it is not liable to patrons injured by the unforeseen criminal acts of third parties, and that its security guard did not assume a duty to protect appellee from a criminal assault arising from personal malice of the attacker.

(a)We first address appellant's contention that it cannot be held liable for injuries to its patrons resulting from the criminal acts of third parties because such a danger is not reasonably foreseeable.Although a business proprietor is not an insurer of the safety of its patrons, Washington Rd. Properties v. Stark, 178 Ga.App. 180, 181, 342 S.E.2d 327(1986), a proprietor "has a duty, when he can reasonably apprehend danger to a customer from the misconduct of other customers or persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct."Shockley v. Zayre of Atlanta, 118 Ga.App. 672, 673, 165 S.E.2d 179(1968).However, "unforeseen and unexpected acts particularly those mala in se perpetrated by third parties on the proprietor's premises do not activate liability by the proprietor....[unless] it is shown that the proprietor has reasonable grounds for apprehending that the very type criminal act which resulted in injury to his guests is reasonably likely to occur.[Cit.]"Fowler v. Robertson, 178 Ga.App. 703, 704, 344 S.E.2d 425(1986)." 'Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.'[Cit.]"Shockley, supra118 Ga.App. at 675(1), 165 S.E.2d 179.

We find Shockley is controlling in the instant case.In Shockley, the plaintiff was attacked inside a store by Hillman, a woman who previously had threatened the plaintiff and against whom the plaintiff had taken out a peace warrant.Hillman confronted the plaintiff in the checkout line, the two women began struggling, and when an employee of the defendant store and a shopper separated them, Hillman cut the plaintiff with a razor.This court affirmed the grant of summary judgment to the defendant, reasoning that "[w]hile a business proprietor has a duty ... to exercise ordinary care to protect persons on its premises as business invitees from foreseeable dangerous conduct of others, we know of no authority holding that this duty of ordinary care requires the proprietor to intervene to save a business invitee from an assault arising from the assailant's personal malice toward the victim.[Cit.]"(Emphasis in original.)Id. at 674, 165 S.E.2d 179.Therefore, we find appellant owed no duty to appellee as a matter of law, and the trial court erred by assuming "arguendo" that such a duty existed.

Appellee tries to distinguish Shockley by arguing that Jackson's criminal attack was foreseeable because the package shop had been the scene of two armed robberies, a theft, and a burglary prior to the altercation between appellee and Jackson, and appellant had hired a security guard.However, those crimes were directed against the business itself and were not similar to the incident at issue here." 'While the relevancy of other occurrences is ordinarily within the sound discretion of the court, "it is necessary that the conditions of the things compared by substantially similar."[Cit.] 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.[Cits.]'[Cit.]"McCoy v. Gay, 165 Ga.App. 590, 592, 302 S.E.2d 130(1983).We find that proof of prior dissimilar crimes occurring several years before the incident at issue "did not meet the 'similarity' requirement so as to constitute a sufficient showing of [appellant's] knowledge of the 'litigated' dangerous condition."Id. at 592-593, 302 S.E.2d 130.Thus, no evidence proffered was sufficient to present a factual question as to whether appellant knew or should have known that any of its patrons was at risk of an assault by a personal adversary outside appellant's business premises.SeeNalle v. Quality Inn, 183 Ga.App. 119, 120, 358 S.E.2d 281(1987).CompareLay v. Munford, Inc., 235 Ga. 340, 219 S.E.2d 416(1975).

(b)Appellee next contends that the hiring of a security guard creates an exception to the general rule regarding lack of liability of proprietors for criminal acts of third parties because once a business owner undertakes to provide security for its patrons, the owner may be liable for injuries resulting from the negligent performance of the security operations.Specifically, appellee asserts, because appellant employed a security guard and because the guard voluntarily intervened in the struggle between appellee and Jackson, he was obligated to perform that undertaking with ordinary care as required by the Restatement (Second) of Torts, § 324A, which provides as follows: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or ... (c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

We find this provision of the Restatement to be inapposite for three reasons.First, as previously discussed, there is no evidence appellant or its security guard should have recognized that any security services were "necessary for the protection of [appellee]" because the prior thefts previously committed within the store were not sufficiently similar so as to alert appellant to a risk of physical assault upon patrons occurring outside the premises and arising from the personal malice of the attacker, and thus the essential element of foreseeability was not present.SeeHewett v. First Nat. Bank, 155 Ga.App. 773, 774, 272 S.E.2d 744(1980).These circumstances contrast with those presented in the case cited by appellee, Atlanta Center Ltd. v. Cox, 178 Ga.App. 184, 341 S.E.2d 15(1986), in which we held that summary judgment was improper when the plaintiff was assaulted by an unknown attacker in the elevator of a hotel which provided mechanical security devices in the elevators and security personnel inside the hotel premises.Contrary to the case at bar, in Atlanta Center a jury question was presented because there was no prior personal connection between the assailant and the victim, and the hotel was aware of a risk of harm to its guests in the elevators and hallways.

Second, even assuming that Knight did recognize that such a need for protection had arisen when he admonished the women to stop fighting, nothing in the record suggests that Knight's actions "increase[d] the risk of ... harm" to appellee.Subparagraph (a) of Section 324A of the Restatement "applies only when a nonhazardous condition is made hazardous through the negligence of a person who changed its condition or caused it to be changed."Argonaut Ins. Co. v. Clark, 154 Ga.App. 183, 185, 267 S.E.2d 797(1980).Although appellee argues that the risk to her may have increased once Knight failed to stop the fight because Jackson may have become confident that no one would intervene, there is no evidence in the record to support that contention.

Third, although appellee asserts she relied on Knight's protection within the meaning of subparagraph (c) of Section 324A, appellee admitted in her deposition that no one associated with appellant was aware of...