Camelot Club Condo. Ass'n, Inc. v. Afari-Opoku, A16A2069

• Decision Date: 09 March 2017
• Docket Number: A16A2069,A16A2070
• Citation: 340 Ga.App. 618,798 S.E.2d 241
• Parties: CAMELOT CLUB CONDOMINIUM ASSOCIATION, INC. v. AFARI-OPOKU et al.; and vice versa.
• Court: Georgia Court of Appeals

340 Ga.App. 618

798 S.E.2d 241

CAMELOT CLUB CONDOMINIUM ASSOCIATION, INC.

v.AFARI-OPOKU et al.; and vice versa.

A16A2069

A16A2070

Court of Appeals of Georgia.

March 9, 2017

Sun S. Choy, Atlanta, John Stephen Berry, David Austin Bersinger, Jacob Edward Daly, Atlanta, James Randolph Evans, Wayne Steven Melnick, Kathryn Maynard Guinn, Atlanta, for Appellant in A16A2069.

Jeffrey Parker Shiver, Andrew Timothy Rogers, Gilbert H. Deitch, Atlanta, Alan John Hamilton, Naveen Ramachandrappa, Michael Brian Terry, Atlanta, for Appellee in A16A2069.

Jeffrey Parker Shiver, Andrew Timothy Rogers, Gilbert H. Deitch, Atlanta, Alan John Hamilton, Naveen Ramachandrappa, Michael Brian Terry, Atlanta, for Appellant in A16A2070.

Sun S. Choy, Atlanta, John Stephen Berry, Jacob Edward Daly, Atlanta, James Randolph Evans, Wayne Steven Melnick, Kathryn Maynard Guinn, Atlanta, for Appellee in A16A2070.

McMillian, Judge.

After Emmanuel Afari-Opoku¹ was murdered in the parking lot of his gated community, his surviving spouse Georgina Afari-Opoku sued the condominium complex and the security firm that it hired for negligence in failing to keep the premises safe. The matter proceeded to trial against Camelot Club Condominium Association, Inc. ("Camelot"), and Alliance Security & Protective Services, LLC ("Alliance"), and a jury found that Georgina, as the surviving spouse of and as personal representative of Emanuel's estate, had suffered $3,250,000 in damages arising from her husband's wrongful death. The jury apportioned 25% of the fault for Emmanuel's death against Camelot, 25% against Alliance, and the remainder against non-parties Anthony Norris (15%), Tariq Smith (15%), and Tefflon Rhoden (20%) (referred to collectively herein as the "Assailants"). The parties subsequently filed post-trial motions and briefs addressing the issue of apportionment between Camelot and Alliance. Following a hearing, the trial court issued judgment in the amount of $1,625,000 against Camelot, which "constitute[d] the 25% fault the jury assigned to Camelot plus the 25% fault the jury assigned to Alliance," and the amount of $812,500 against Alliance representing the 25% fault the jury assigned to it.

In Case No. A16A2069, Camelot appeals the trial court's denial of its motion for directed verdict at trial, as well as the trial court's judgment finding Camelot liable for Alliance's share of fault. In Case No. A16A2070, Georgina cross-appeals the trial court's denial of her pretrial motion in limine to preclude Camelot from arguing that it is not legally responsible for the conduct of Alliance and its security guard employee, and further appeals the denial of her trial motion to "disallow any apportionment [by the jury] of fault, liability or damages between Alliance [ ] and Camelot."

Construed in support of the jury's verdict,² the record shows that Camelot is the owner of the common areas of the Camelot Club Condominiums in College Park ("Camelot Club"). Beginning in 2009, the Camelot board became concerned about the level of crime in and around the gated community and began to take measures to increase security. In August 2010, the board hired Alliance to provide 24/7 security at the front gate.

On October 12, 2010, Emmanuel, a Camelot Club resident, purchased electronics from Smith in a parking lot on Campbellton Road. After the transaction, Smith and a companion contacted Norris and Rhoden regarding Emmanuel, and the three met up in the parking lot. Although Norris suggested robbing Emmanuel there, the three men decided to follow him instead. Emmanuel stopped at a gas station on his way home, and the Assailants stopped in a parking lot across the street. They discussed robbing Emmanuel at this location and taking his car, but they opted to follow him home. After trailing Emmanuel for around 20 miles, they arrived at Camelot Club. There, the security guard let them in, allowing their car to drive through the security gates and the security arm without questioning them. The men followed Emmanuel to his condominium unit, and during an attempt to rob him, Rhoden shot Emmanuel, who later died from his injuries.

Georgina filed suit against Alliance³ and "ABC Corporation" on February 25, 2012, alleging that they had undertaken and breached a duty to provide security for the residents and invitees of Camelot Club. She subsequently amended the complaint to replace "ABC Corporation" with Camelot and Homeside Properties, Inc.⁴ as named defendants, and to spell out claims for negligence under OCGA § 51-3-1 and the Restatement of Torts (Second) § 324A and nuisance under OCGA § 41-1-1 et seq.

Directed Verdict

1. Camelot argues that the trial court erred in denying its motion for directed verdict because the evidence showed that Camelot did not breach any duty to Emmanuel and no evidence existed that it had created a nuisance on the property.⁵ "The standard of appellate review of a trial court's denial of a motion for a directed verdict is the any evidence test." (Citation and punctuation omitted.) Doherty v. Brown , 339 Ga.App. 567, 573 (2), 794 S.E.2d 217 (2016). Moreover, "[i]n considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion." (Citation and punctuation omitted.) Chrysler Group, LLC v. Walden , 339 Ga.App. 733, 735-36 (1), 792 S.E.2d 754 (2016). We review any pure questions of law de novo. Brown v. Tucker , 337 Ga.App. 704, 720 (8), 788 S.E.2d 810 (2016).

(a) Premises Liability —Camelot asserts that Georgina failed to show that it breached any duty under OCGA § 51-3-1, because the evidence does not demonstrate that the crime in this case was foreseeable or that Camelot had superior knowledge of the risk that caused Emmanuel's death.

Under OCGA § 51-3-1,

[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

"Although a landowner has a duty to invitees to exercise ordinary care to keep its premises safe ..., the landowner is not an insurer of an invitee's safety." Agnes Scott College v. Clark , 273 Ga.App. 619, 621 (1), 616 S.E.2d 468 (2005). See also Sipple v. Newman , 313 Ga.App. 688, 690, 722 S.E.2d 348 (2012). In order to recover on a premises liability claim, a plaintiff must show "(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier." Robinson v. Kroger Co. , 268 Ga. 735, 748-49 (2) (b), 493 S.E.2d 403 (1997).

(i) Foreseeability —An intervening criminal act by a third party generally "insulates a landowner from liability unless such criminal act was reasonably foreseeable." Clark , 273 Ga.App. at 621 (1), 616 S.E.2d 468. See also Days Inns of America v. Matt , 265 Ga. 235, 236, 454 S.E.2d 507 (1995) ("Simply put, without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises."). "In order to be reasonably foreseeable, the criminal act must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers against the risk posed by that type of activity." (Citation and punctuation omitted.) Ratliff v. McDonald , 326 Ga.App. 306, 312 (2) (a), 756 S.E.2d 569 (2014).

However, "[w]hile the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical"; rather, such activity "[must] be sufficient to attract the [owner's] attention to the dangerous condition which resulted in the litigated incident." (Citation and punctuation omitted.) Sturbridge Partners, Ltd. 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 ..., 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." Id."[T]he question of reasonable foreseeability of a criminal attack is generally for a jury's determination rather than summary adjudication by the courts." (Citation and punctuation omitted.) Id.

Georgina presented evidence at trial of a number of prior crimes in or near Camelot Club, including, but not limited to, an armed robbery of a Camelot security guard at the front gate in January 2006; a battery and attempted robbery at the front gate in July 2006, which was reported to the security guard on duty; a robbery at gunpoint of a resident's guest inside the complex in June 2008, which was reported to police and via phone message to Camelot; an attempted armed robbery of a resident inside the complex in June 2008; a robbery of a landscaper on Camelot Club property in September 2008, which was reported to Camelot; and a robbery of a resident in July 2009 after perpetrators drove unchallenged onto the property.

Additionally, Camelot's chief executive officer ("CEO") testified that Camelot received quarterly reports of criminal activity on the property from police, and he was personally aware of four incidents of armed robbery/aggravated assault on the property between April 2009 and the summer of 2010. He actually witnessed one of these incidents, in which a teenager fired shots at a resident, causing the CEO himself to duck behind a car to avoid being shot. The CEO testified that because Camelot Club had become "quite a bad place," Camelot hired Alliance, repaired the front gate, and took other security measures to address the situation.

We find that this and other evidence at trial was enough to support a finding by the jury that...