Brown v. All-Tech Inv. Group, Inc.

• Decision Date: 15 December 2003
• Docket Number: No. A03A1842-A03A1854.
• Citation: 595 S.E.2d 517,265 Ga. App. 889
• Parties: BROWN et al. v. ALL-TECH INVESTMENT GROUP, INC. et al. Muralidhara et al. v. All-Tech Investment Group, Inc. et al. Herder v. All-Tech Investment Group, Inc. et al. Zaprzala et al. v. All-Tech Investment Group, Inc. et al. Havash et al. v. All-Tech Investment Group, Inc. et al. Quinn et al. v. All-Tech Investment Group, Inc. et al. Wenzel et al. v. All-Tech Investment Group, Inc. et al. Liberzon et al. v. All-Tech Investment Group, Inc. et al. Harjee et al. v. All-Tech Investment Group, Inc. et al. Higginbotham et al. v. All-Tech Investment Group, Inc. et al. Winitt v. All-Tech Investment Group, Inc. et al. Tenenbaum et al. v. All-Tech Investment Group, Inc. et al. Williams et al. v. All-Tech Investment Group, Inc. et al.
• Court: Georgia Court of Appeals

595 S.E.2d 517

265 Ga. App. 889

BROWN et al. v. ALL-TECH INVESTMENT GROUP, INC. et al.

Muralidhara et al. v. All-Tech Investment Group, Inc. et al.

Herder v. All-Tech Investment Group, Inc. et al.

Zaprzala et al. v. All-Tech Investment Group, Inc. et al.

Havash et al. v. All-Tech Investment Group, Inc. et al.

Quinn et al. v. All-Tech Investment Group, Inc. et al.

Wenzel et al. v. All-Tech Investment Group, Inc. et al.

Liberzon et al. v. All-Tech Investment Group, Inc. et al.

Harjee et al. v. All-Tech Investment Group, Inc. et al.

Higginbotham et al. v. All-Tech Investment Group, Inc. et al.

Winitt v. All-Tech Investment Group, Inc. et al.

Tenenbaum et al. v. All-Tech Investment Group, Inc. et al.

Williams et al. v. All-Tech Investment Group, Inc. et al.

Nos. A03A1842-A03A1854.

Court of Appeals of Georgia.

December 15, 2003.

Reconsideration Denied March 2, 2004.

Certiorari Denied June 28, 2004.

Weinstock & Scavo, Michael Weinstock, Jan P. Cohen, Adam M. Gleklen, Jami M. Kohn, Kilpatrick Stockton, Raymond G. Chadwick, Jr., Joseph H. Huff, David M. Zacks, for appellants.

Gorby, Reeves, Peters & Burns, Michael J. Gorby, Matthew J. Ashby, for All-Tech Investment Group, Inc.

Hawkins & Parnell, A. Timothy Jones, Michael K. Watson, for Barton Protective Services, Inc. Chambers, Aholt & Rickard, Douglas F. Aholt, Laura Speed-Dalton, for Momentum Securities, Inc.

ELLINGTON, Judge.

On July 29, 1999, Mark O. Barton went on a shooting spree at the offices of two day trading firms, killing nine people and injuring twelve. In these cases, six of the people who survived the wounds Barton inflicted, and the survivors of seven of the people who died, sued for damages resulting from Barton's attacks.¹ The named defendants included the two day trading firms, All-Tech Investment Group, Inc. ("All-Tech")² and Momentum Securities, Inc. ("Momentum"), and Barton Protective Services, Inc. ("BPS"), which provided security services at the two buildings. The appellants who were injured at All-Tech asserted liability as to Momentum (as well as to All-Tech), and vice versa.

After a hearing, the trial court granted the motions for summary judgment filed by All-Tech and Momentum (collectively "the trading firms"). The trial court also granted BPS's motion for summary judgment, addressing the two locations in separate orders. The plaintiffs-below appeal these three orders, contending material questions of fact remain for jury resolution. For the reasons which follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Ponder v. Brooks, 256 Ga.App. 596, 597, 569 S.E.2d 267 (2002).

Viewed in this light, the record shows the following undisputed facts.

Day Trading. Day trading is a form of financial securities trading in which traders place multiple buy and sell orders for securities and hold the positions for a very short period of time, usually less than one day, seeking to profit from the daily fluctuations in stock prices. In exchange for a commission on each trade, All-Tech and Momentum, as day trading firms, provided their customers access to computer terminals and specialized computer software used in day trading. At each of these trading firms, the terminals were located on a "trading floor": a large common room which was not locked or otherwise secured during business hours.

Day trading is highly speculative. A large majority of day traders fail to profit from their trading.³ All-Tech and Momentum each had policies to screen new day traders for suitability. Each provided new day traders with extensive disclosures about the risks of day trading and instructed day traders to use only "risk capital" for trading. Each had policies to monitor their customers' success and to reevaluate the suitability of customers whose accounts lost a certain percentage in a certain period of time.

The Security Contracts. During the relevant times, All-Tech and Momentum each operated a day trading office in rented space on Piedmont Road in Atlanta: All-Tech in Building Eight of Piedmont Center and Momentum across the street at Two Securities Centre. Under separate contracts with the property managers, BPS provided security services at Piedmont Center and Two Securities Centre. In its contract with the management of Piedmont Center, BPS agreed to provide unarmed "protective services," including the following: to inform property management about severe weather and fire alarms, bomb threats, and power failures, to assist in evacuations as appropriate, to facilitate emergency response to medical emergency 911 calls and disasters, and to monitor elevator functions. BPS guards were to patrol the buildings and parking deck, looking for "hazardous conditions," and to investigate and report "all suspicious persons, vehicles, and circumstances," including property theft and vandalism, fighting, "horseplay," and gambling. The contract forbade BPS personnel to enter any tenant space except "for security purposes" and required BPS personnel to notify the supervising officer of the reasons necessitating the entry. Although the contract required BPS to restrict access to the buildings and parking deck after hours according to a specific protocol, during business hours, BPS's protective services did not include restricting access to the buildings, such as checking employees' and customers' identification, scanning packages, having visitors sign in or pass through a metal detector, etc. As instructed by property management, BPS maintained a denied-access list regarding certain individuals who were not allowed on the property.

Similarly, in its contract with the management of Two Securities Centre, BPS agreed to provide unarmed security services including responding to alarms, "suspicious incidents," and "security related situations (including fires, accidents, internal disorders and attempts of sabotage or other criminal acts), in conformance with common sense and good judgment and in keeping with [the owner's and property manager's] policies and procedures." BPS agreed to enforce "access control procedures"; access control procedures, however, did not include restricting employees' and visitors' access to the buildings during business hours. The property manager retained the exclusive right to control and deny access to the building and sometimes notified BPS of individuals who should be denied access. The contract forbade BPS to search any tenant's leased space or question any tenant unless directed to do so by the property manager.

Barton. Barton began trading at All-Tech in April 1998. He represented to All-Tech that his net worth was $500,000. All-Tech took no action to verify Barton's representations about his assets. Barton deposited $100,000 in his All-Tech account before he began trading. Over the next 11 months, Barton sustained heavy losses, including over $200,000 just in August 1998. No manager of All-Tech met with Barton about his losses or reevaluated his suitability for day trading. By May 10, 1999, Barton had lost more than his total investment of almost $400,000 and owed All-Tech more than $30,000. At that point, All-Tech closed Barton's account.

Within days, Barton went to Momentum to open an account. He represented to Momentum that his net worth was $750,000. Like All-Tech, Momentum took no action to verify Barton's financial information. Again, Barton deposited $100,000 before he began trading. In the six weeks before his deadly rampage, Barton lost most of his total investment of $137,500. Managers froze his account, but no one met with Barton about his losses or reevaluated his suitability for day trading.

Before going to All-Tech's and Momentum's offices on July 29, 1999, Barton called managers, announcing that he would be coming by with a check for each to reactivate his accounts. Between 2:00 and 3:00 p.m. that day, Barton went to Momentum's third floor office suite and asked to speak to a particular manager. Before that manager arrived, Barton shot another manager and then began shooting other people working on the trading floor. Barton left the Momentum suite, crossed the street, went to All-Tech's second floor office suite, and asked to speak to certain managers. While meeting with three managers in an office, Barton began firing his weapons. He left the office and continued firing, striking down several people working on the trading floor.

All Cases

1. The appellants challenge the grant of summary judgment in favor of the trading firms. Because the appellants failed to identify evidence which would support a conclusion that their damages were a reasonably foreseeable outcome of the trading firms' actions, we affirm.

To state a cause of action for negligence under Georgia law,

the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.

(Citation omitted.) Phillips v. South West Mechanical Contractors, 254 Ga.App. 144, 145-146(1), 561 S.E.2d 471 (2002). Thus, summary judgment is appropriate in negligence cases when, viewing all the facts and...