Agnes Scott College, Inc. v. Clark, No. A05A0244.
| Decision Date | 14 June 2005 |
| Docket Number | No. A05A0244. |
| Citation | 616 S.E.2d 468,273 Ga. App. 619 |
| Parties | AGNES SCOTT COLLEGE, INC. v. CLARK. |
| Court | Georgia Court of Appeals |
John S. Berry, James T. McDonald, Jr., Swift, Currie, McGhee & Hiers, L.L.P., Atlanta, for appellant.
John J. O'Connell, Jr., Smith, Schroeder & O'Connell, Decatur, for appellee.
A student at Agnes Scott College (Agnes Scott) sued the college, alleging that Agnes Scott negligently failed to keep its premises safe, after the student was kidnapped from one of Agnes Scott's parking lots and raped off campus. Although there was no evidence of any kidnappings, rapes, attacks, or other similar crimes occurring in the parking lot prior to the incident involving the student, the trial court denied Agnes Scott's motion for summary judgment. Since the trial court's ruling is contrary to Supreme Court of Georgia precedent requiring that prior similar crimes must occur before a landowner can be held liable for injuries suffered in connection with a future crime on its premises, we are constrained to reverse.
On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga.App. 553, 553-554, 562 S.E.2d 731 (2002).
So viewed, the evidence reveals that on September 29, 1997, Nikia Clark parked her car in Agnes Scott's South Candler parking lot. At around noon on the following day, Clark returned to her car while it was sunny and clear outside and the lot was still full. Clark got into her car, locked the door, and rolled down her window to release the accumulated heat inside her car. She looked in her rearview mirror and noticed a man (later identified as Toddrick Hunter) walking toward her car from behind. She started rolling up her window, but Hunter reached the driver's side of the car before she could finish doing so. Hunter then punched Clark several times in the face, unlocked her car door, and forced his way into the car. Hunter forced Clark into the passenger seat and drove away with her to another part of the Atlanta area, where he raped her. Hunter then forced Clark into the trunk of the car, but Clark managed to escape after Hunter stopped at a traffic light. Clark ran for help and Hunter drove away. Hunter was later arrested.
Prior to the September 1997 incident involving Clark, there had been no reported incidents of kidnapping, rape, or any other violent crimes occurring in the South Candler lot at Agnes Scott.1 Only crimes against property, such as car break-ins, and other crimes not involving person-to-person contact had been reported. Even reports of suspicious persons in the lot involved people who were seen late at night and who had no direct contact with students in the lot. It is undisputed that neither Agnes Scott nor Clark had any knowledge of Hunter prior to his abduction and rape of Clark.
In opposition to summary judgment, Clark did not come forward with evidence of violent crimes occurring in the South Candler lot prior to the incident involving Hunter. Instead, she produced general crime statistics for the City of Decatur and other areas and evidence that students were afraid of going to the South Candler lot alone at night. Acknowledging such evidence in its order denying summary judgment to Agnes Scott, the trial court reasoned in part that although "[t]here had been no carjackings on or near campus, . . . Agnes Scott was aware that carjackings were on the rise across the nation. . . ." The trial court further focused on the fact that the South Candler lot was farther away from campus than the other parking lots, and that students expressed concern for their safety in the lot at night, in reaching its conclusion that a jury question existed regarding whether Agnes Scott could have foreseen the daytime attack against Clark. Agnes Scott appeals from this order.
1. Agnes Scott contends that the trial court erred in denying its motion for summary judgment. We agree.
Although a landowner has a duty to invitees to exercise ordinary care to keep its premises safe (see OCGA § 51-3-1), the landowner is not an ensurer of an invitee's safety. See Fernandez, supra, 261 Ga.App. at 892, 583 S.E.2d 926. An intervening criminal act by a third party generally insulates a landowner from liability unless such criminal act was reasonably foreseeable. Days Inns of America v. Matt, 265 Ga. 235, 236, 454 S.E.2d 507 (1995) (); see also Baker v. Simon Property Group, 273 Ga.App. 406, 614 S.E.2d 793 (2005) ().
In order for the crime at issue to be foreseeable, it must be substantially similar to previous criminal activities occurring on or near the premises such that a reasonable person would take ordinary precautions to protect invitees from the risk posed by the criminal activity. See Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997).
In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability 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 [landowner's] attention to the dangerous condition which resulted in the litigated incident.
(Citations and punctuation omitted.) Id.
Applying this standard, the Supreme Court of Georgia has held that a landlord was entitled to summary judgment on the claim of a victim who was attacked in a parking garage and raped nearby, because the crime was unforeseeable as a matter of law. Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 268 Ga. 604, 606, 492 S.E.2d 865 (1997), affirming Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 222 Ga.App. 169, 474 S.E.2d 31 (1996). In Doe, the victim was attacked on a sunny afternoon in a parking garage where no violent attacks had occurred in the past. Doe, supra, 222 Ga.App. at 170-172(1)(a), 474 S.E.2d 31. The only prior crimes that had been committed...
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