Atlanta Center Ltd. (A.B.V.I. Corp.) v. Cox

• Decision Date: 04 February 1986
• Docket Number: No. 71276,71276
• Citation: 341 S.E.2d 15,178 Ga.App. 184
• Parties: ATLANTA CENTER LIMITED (A.B.V.I. CORPORATION) v. COX et al.
• Court: Georgia Court of Appeals

Page 15

341 S.E.2d 15

178 Ga.App. 184

ATLANTA CENTER LIMITED (A.B.V.I. CORPORATION) v.COX et al.

No. 71276.

Court of Appeals of Georgia.

Feb. 4, 1986.

James T. McDonald, Jr., Rose C. Miller and Larry N. Hollington, Atlanta, for appellant.

Richard N. Hubert and Glenn P. Hendrix, Atlanta, for appellees.

CARLEY, Judge.

Appellee-plaintiffs Mr. and Mrs. Cox were registered guests of a hotel owned by appellant.During the early morning hours of January 1, 1983, appelleeMr. William Cox was assaulted and seriously injured in the hotel.The crime occurred as he and his wife left an elevator which had arrived at the floor of the hotel where their room was located.The assault on Mr. Cox had been preceded by an incident involving pushing and shoving of his wife, appelleeMrs. Virginia Cox, while they were in the elevator.The crime occurred notwithstanding the fact that appellant had provided mechanical security devices in its elevators and that its hotel was also manned by security personnel.

Appellees filed the instant action, alleging appellant's negligence in failing to warn them of the presence of dangerous individuals in the hotel and in failing to provide adequate security in the hotel.Appellant answered, denying liability, and subsequently moved for summary judgment.The motion was denied, the trial court ruling that a genuine issue of fact remained as to the duty owed by appellant to its guests.The order was certified for immediate review.Appellant's application for interlocutory appeal was granted and the instant appeal results.

Appellant contends that it is insulated from liability because the assault was an intervening unforeseeable criminal act.It is true that " 'one is not ordinarily charged with the duty of anticipating acts mala per se....' "Pittman v. Staples, 95 Ga.App. 187, 191, 97 S.E.2d 630(1957)." 'Ordinarily, even where the proprietor'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.[Cit.]"However, the above rule has been held inapplicable if the defendant(original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed."[Cit.]'[Cit.]"McCoy v. Gay, 165 Ga.App. 590, 591, 302 S.E.2d 130(1983).

It is important to the resolution of this case that it does not involve a factual situation wherein, at the time and place of the criminal occurrence, there was a failure to provide any security to hotel patrons.CompareMcClendon v. C&S Nat. Bank, 155 Ga.App. 755, 272 S.E.2d 592(1980);McCoy v. Gay, supra;Tolbert v. Captain Joe's Seafood, 170 Ga.App. 26, 316 S.E.2d 11(1984);Donaldson v. Olympic Health Spa, 175 Ga.App. 258, 333 S.E.2d 98(1985);Washington Rd. Properties v. Stark, 178 Ga.App. 180, 342 S.E.2d 327(1986).In cases of that type, a showing that the defendant-landowner had prior "knowledge" that the presence of third persons had created a "dangerous condition" for his patrons on a portion of the premises would be necessary, in order to show the existence of even an initial duty on the part of the defendant to provide preventive security measures.Absent the defendant's prior knowledge of the alleged "dangerous condition," there would be no duty to protect patrons against it.See generallyRhodes v. B.C. Moore & Sons, 153 Ga.App. 106, 264 S.E.2d 500(1980).Absent such a duty, the random unforeseeable criminal act would be the sole proximate cause of the patron's injury and insulate the defendant from liability for his alleged prior act of negligence.See generallyMcCoy v. Gay, supra;Tolbert v. Captain Joe's Seafood, supra.

In direct contrast, the evidence in the instant case shows that appellant had undertaken to provide security to its patrons using its elevators and hallways.Accordingly, even assuming that there might otherwise have been no initial duty to provide security to patrons such as appellees, appellant, having undertaken that very duty, was required to perform it in a non-negligent manner.SeeShirley Cloak, etc., Co. v. Arnold, 92 Ga.App. 885, 892, 90 S.E.2d 622(1955);Mixon v. Dobbs Houses, 149 Ga.App. 481, 483-484, 254 S.E.2d 864(1979);Georgia-Car. Brick, etc., Co. v. Brown, 153 Ga.App. 747, 755, 266 S.E.2d 531(1980);Cunningham v. Nat. Svc. Indus., 174 Ga.App. 832, 834-839, 331 S.E.2d 899(1985).Thus, it is this duty undertaken by appellant to provide security which appellees assert was performed in a negligent manner.CompareMcCoy v. Gay, supra.Construing the evidence most strongly against appellant and in favor of appellees, whether, under the existing circumstances appellant was negligent in its...