Aldridge v. Tillman

• Decision Date: 12 April 1999
• Docket Number: No. A99A0540.,A99A0540.
• Citation: 237 Ga. App. 600,516 S.E.2d 303
• Parties: ALDRIDGE v. TILLMAN.
• Court: Georgia Court of Appeals

516 S.E.2d 303

237 Ga. App. 600

ALDRIDGE v.TILLMAN.

No. A99A0540.

Court of Appeals of Georgia.

April 12, 1999.

Gibson & Spivey, Andrew C. Spivey, Waycross, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Bradley J. Watkins, Brunswick, for appellee.ELDRIDGE, Judge.

Appellant, Jay Aldridge, brought a premises liability suit against appellee, Geraldine Tillman, who is his grandmother, for injuries he incurred at her home during an altercation which occurred between him and his stepgrandfather, Gary Tillman.¹Aldridge alleged that Mrs. Tillman was negligent in failing to keep her premises safe by not warning Aldridge of a known danger on her premises, i.e., that Mr. Tillman was contemplating physical violence toward him.In his sole enumeration of error, Aldridge contends that the trial court erred in granting summary judgment to Mrs. Tillman.

Construed most favorably to Aldridge, the non-movant, the facts of the case show the following: Aldridge was raised by Mr. and Mrs. Tillman.On December 24, 1994, Aldridge, who was 21 years of age and no longer resided in the Tillmans' home, attended a family gathering at the Tillman home.Aldridge arrived at the Tillman home between noon and 1:00 p.m.The family had an oyster roast and exchanged Christmas gifts.Aldridge testified that Mr. Tillman had been drinking throughout the day and that Mr. Tillman had appeared to be intoxicated since about 5:00 p.m. Aldridge also testified that he was aware Mr. Tillman had a violent personality when he was drinking.Aldridge went on to testify that he could tell when they were outside in the yard that Mr. Tillman was drunk and "wanted to start something."Although, he knew that Mr. Tillman was drunk and apt to start trouble, Aldridge, along with several other people, remained at the Tillman home to watch a movie after the rest of the family departed.

Between 7:00 p.m. and 8:00 p.m., Aldridge's roommate arrived to pick up Aldridge and joined the remaining guests in the Tillman living room.Aldridge testified that Mr. Tillman went into the kitchen area and "mumbled" something to Mrs. Tillman, which Aldridge could not understand.Mrs. Tillman told Mr. Tillman that he was drunk and that he should go to bed.Aldridge further testified that, as Mr. Tillman walked by him on Mr. Tillman's way into the bedroom, Mr. Tillman gave him a "mean" look.Aldridge testified that the next thing he knew, Mr. Tillman was coming up the hall with a knife in his hand.

Aldridge testified that Mrs. Tillman yelled "watch out Jay, he's got a knife" and attempted to stop Mr. Tillman from injuring him by physically putting her body between Aldridge and Mr. Tillman.Mr. Tillman made a six-inch cut on Jay's side and punctured his lung with the knife.Mrs. Tillman was also injured in the altercation.

Aldridge testified that, having grown up in the Tillman home, he was aware of previous incidents during which Mr. Tillman had behaved in a violent manner.Aldridge testified, that when he was between ten and twelve years of age, he would go to work with Mr. Tillman.When Aldridge did not know how to perform a task, Mr. Tillman would get "aggravated" and threaten to hit him with a 2" × 4" board or a pipe.Aldridge further testified that, on one occasion when he was four or five years of age, his grandparents were "fussing" as his aunt came to pick up him and his grandmother.As they were leaving in his aunt's vehicle, Mr. Tillman pulled out a gun and fired it.Aldridge did not know where Mr. Tillman shot the gun while they were leaving.Aldridge also testified that, even though he was not present, he had heard that Mr. Tillman had become angry at some police officers he had summoned to his home and had pulled a gun on the officers.Aldridge went on to testify that Mr. Tillman had hit Mrs. Tillman on one occasion, which resulted in her being treated at the hospital.

Aldridge further testified that when he was young, Mrs. Tillman would try to protect him by sending him to a relative's house or to bed when Mr. Tillman became violent.Aldridge also testified that once he was old enough to understand that Mr. Tillman often became violent when he was drinking, he would try to stay away from him when he was intoxicated and upset.

By way of affidavit, Mrs. Tillman denied having any prior knowledge that Mr. Tillman planned to hurt Aldridge.Mrs. Tillman averred that she was in the kitchen when Mr. Tillman walked by Aldridge on his way to bed and did not see Mr. Tillman stare at Aldridge in a "mean" way and had no reason to believe Mr. Tillman was going to "start something" with Aldridge.Mrs. Tillman further averred that, when Mr. Tillman left the kitchen, she thought he was going to bed, and the first indication she had that Mr. Tillman might assault Aldridge was when Mr. Tillman emerged from the bedroom with a knife.Mrs. Tillman went on to aver that when she saw Mr. Tillman with the knife, she yelled at Aldridge to "watch out" and attempted to physically stop Mr. Tillman from assaulting Aldridge, which resulted in her being injured.

Aldridge testified that, prior to this incident, Mr. Tillman had merely threatened him and that, even though he was aware that Mr. Tillman was drunk and upset on the evening of December 24, 1994, he never expected Mr. Tillman to do more than "mouth off" or threaten him.Aldridge testified that he never expected Mr. Tillman to physically attack him.Aldridge further testified that Mrs. Tillman told him for the first time at some point after the December 24, 1994 incident that Mr. Tillman had made specific threats to harm Aldridge on two recent occasions: (1) approximately one to two months earlier, Mr. Tillman had hidden a crowbar under the sofa and was going to "jump on [Aldridge] with it" and (2) that Mr. Tillman had stated to her "he was mad and was going to start some trouble."On appeal, Aldridge argues that Mrs. Tillman failed to exercise ordinary care for his safety when she invited him to the Christmas party at her home and when she allowed him to stay after the other guests left without warning him of these specific recent threats made by Mr. Tillman toward him.Held:

1."As a social guest [at the Tillmans'] home, [Aldridge] occupied the legal status of licensee.[Cit.]"Strickland v. Strickland,198 Ga.App. 440, 441, 402 S.E.2d 66(1991);Hemphill v. Johnson,230 Ga.App. 478, 497 S.E.2d 16(1998)."`The owner of the premises is liable to a licensee only for willful or wanton injury.'OCGA § 51-3-2(b)."Davis v. Scott,232 Ga.App. 493, 494, 502 S.E.2d 332(1998).However,

it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one's premises.Thus as to a licensee ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated.

(Citations and punctuation omitted; emphasis in original.)Wade v. Mitchell,206 Ga. App. 265, 267, 424 S.E.2d 810(1992);Lipham v. Federated Dept. Stores,208 Ga.App. 385, 430 S.E.2d 590(1993), rev'd on other grounds, 263 Ga. 865, 440 S.E.2d 193(1994);Moon v. Homeowners' Assn. of Sibley Forest,202 Ga.App. 821, 823, 415 S.E.2d 654(1992).This rule applies to cases involving active negligence, as distinguished from static negligence.Wade v. Mitchell,supra, 206 Ga.App. at 266-267, 424 S.E.2d 810;Lipham v. Federated Dept. Stores,supra, 208 Ga.App. at 387, 430 S.E.2d 590.Therefore, the danger must be known and foreseen by the property owner before a duty to protect exists.Hackett v. Dayton Hudson Corp.,191 Ga.App. 442, 444, 382 S.E.2d 180(1989);Great A & P Tea Co. v. Cox,51 Ga.App. 880, 181 S.E. 788(1935).

2.Ordinarily, even "where the [property owner's] negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury."(Citations and punctuation omitted.)Burdine v. Linquist,177 Ga.App. 545, 546, 340 S.E.2d 198(1986).Generally, "[a]n intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury thus breaking the causal connection between the defendants' negligence and the injury."(Citation and punctuation omitted.)Alexander v. Sportslife,232 Ga.App. 538, 540, 502 S.E.2d 280(1998);Tucker Fed. &c. Assn. v. Balogh,228 Ga.App. 482, 484, 491 S.E.2d 915(1997).

However,

[Mrs. Tillman] is bound to exercise ordinary care to protect [Aldridge] from unreasonable risks of which [she] has superior knowledge, and if [she] has reason to anticipate criminal acts, [she] has the duty to exercise ordinary care to guard against injury caused by dangerous characters.

(Citations and punctuation omitted.)Millan v. Residence Inn by Marriott,226 Ga.App. 826, 827-828, 487 S.E.2d 431(1997);Matt v. Days Inns of America,212 Ga.App. 792, 443 S.E.2d 290(1994), aff'd, Days Inns of America v. Matt,265 Ga. 235, 454 S.E.2d 507(1995);Lau's Corp. v. Haskins,261 Ga. 491, 405 S.E.2d 474(1991).

[Mrs. Tillman's] duty to exercise ordinary care to protect [Aldridge] against third-party criminal attacks extends only to foreseeable criminal acts.And, only if [Mrs. Tillman] has reason to anticipate a criminal act, does ... she then have a duty to exercise ordinary care to guard against injury from dangerous characters.

(Citations and punctuation omitted; emphasis in original.)Doe v. Briargate Apts.,227 Ga.App. 408, 409, 489 S.E.2d 170(1997).²

A criminal act by a third party may be foreseeable if the incident causing the injury is

substantially similar in type to previous criminal activities occurring on or near the premises at issue so that a reasonable owner or occupier of those premises would take ordinary precautions to protect his or her [guest]

...