Carlock v. Kmart Corp.

• Citation: 227 Ga.App. 356,489 S.E.2d 99
• Decision Date: 15 July 1997
• Docket Number: No. A97A0598,A97A0598
• Parties: , 97 FCDR 2769 CARLOCK et al., v. KMART CORPORATION.
• Court: Georgia Court of Appeals

Page 99

489 S.E.2d 99

227 Ga.App. 356, 97 FCDR 2769

CARLOCK et al., v. KMART CORPORATION.

No. A97A0598.

Court of Appeals of Georgia.

July 15, 1997.

Certiorari Denied Jan. 23, 1998.

Lawson, Davis & Pickren, G. Thomas Davis, Paul R. Jordan, Atlanta, for appellants.

Drew, Eckl & Farnham, George R. Moody, Francis E. Wiggers, Jr., Mary B. Galardi, Atlanta, for appellee.

RUFFIN, Judge.

Shortly before 10:00 p.m. on April 8, 1994, Evelyn Carlock was shot and killed during an attempted robbery in a shopping center parking lot. Evelyn Carlock's surviving spouse and executor of her estate, Frank Carlock, sued two businesses located in the shopping center, Kmart Corporation, doing business as American Fare ("Kmart"), and Super Discount Markets, Inc., doing business as Cub Foods ("Cub Foods"). Carlock alleged that he was entitled to wrongful death and punitive damages due to the defendants' negligence and conscious indifference to consequences in failing to keep the premises safe. The trial court subsequently granted Cub Foods summary judgment on all claims and Kmart partial summary judgment on Carlock's claim for punitive damages. Carlock appeals from those judgments and the trial court's partial grant of a motion in limine excluding expert testimony on the issue of foreseeability of the criminal act. For reasons which follow, we affirm the trial court's grant of summary judgment to Cub Foods and the order in limine, but reverse the grant of partial summary judgment to Kmart.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

1. Carlock's claim against Cub Foods for its alleged failure to keep the premises safe is governed by OCGA § 51-3-1. Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339 (1997). Among other facts that must be shown to prevail on this claim, Carlock must prove that the criminal act was reasonably foreseeable to Cub Foods. See id.; Whitmore v. First Fed'l., etc., 225 Ga.App. 768(1), 484 S.E.2d 708 (1997).

In its motion for summary judgment, Cub Foods showed that it leased the store space from Kmart and opened for business at the location approximately two months before the incident. Cub Foods claimed that there was no evidence in the record showing the criminal act was reasonably foreseeable to Cub Foods. Bearing in mind that it was not Cub Foods' burden to affirmatively disprove Carlock's case, to survive summary judgment Carlock was required to point to specific evidence creating a triable issue on foreseeability. See Lau's Corp., supra.

Although foreseeability can be established through the presentation of evidence of prior similar crimes, see Whitmore, supra at 769, 484 S.E.2d 708, and the trial court based its ruling in part on a lack of such evidence, on appeal Carlock points to other evidence which he contends gives rise to a triable issue. Specifically, Carlock cites evidence of a parking lot security patrol hired by Kmart, the landlord, and signs indicating that the property was "protected by Wells Fargo." He contends this evidence showed Cub Foods that there was a need for security devices and, presumably, that the necessity arose due to criminal activity substantially similar to the crime in this case.

Carlock cites no authority in support of this contention, and we do not find that a jury could reasonably infer from the evidence cited that Cub Foods knew the reason why a security patrol was hired or that substantially similar criminal activity had previously occurred in the parking lot. There are numerous reasons why Kmart might have hired a security patrol. Even if crime prevention was a reason for the security patrol in this case, that fact would not necessarily indicate to Cub Foods that crimes were previously committed in the parking lot. Moreover, it would not be reasonable to infer from this evidence that substantially similar crimes occurred in the parking lot. In short, the cited evidence does not show that the crime in this case was foreseeable to Cub Foods.

Carlock also contends that Cub Foods had a duty to investigate the possibility of criminal conduct in the parking lot. Carlock contends that an investigation would have shown that prior robberies occurred in the parking lot. Although Carlock acknowledges in his brief that these robberies occurred before Cub Foods occupied the leased space, he argues that the incidents were known to Kmart and as a result, Cub Foods had a duty to inquire of Kmart about such incidents.

In Sun Trust Banks v. Killebrew, 266 Ga. 109, 464 S.E.2d 207 (1995), our supreme court found no authority in this state imposing a duty on a property owner to investigate police files to determine whether criminal activities have occurred on its premises. The Court refused to impose such a duty in Killebrew, where testimony by the bank's security chief did not establish that the bank's "duty to investigate crimes on its property encompassed seeking out police reports of incidents not reported to the bank." Id. at 109-110, 464 S.E.2d 207.

We likewise refuse to impose a similar duty on Cub Foods in this case. We are aware of no authority requiring a commercial tenant of a shopping center to investigate police files or the files of its landlord to determine whether criminal activities occurred in the parking lot prior to its occupancy. Furthermore, the testimony of Cub Foods' corporate loss prevention manager indicates that Cub Foods never had such a policy. Under these circumstances, we find that no genuine issue of foreseeability exists on this ground. See id.

Finally, Carlock contends that the crime was foreseeable because of the generally recognized danger associated with shopping center parking lots. Although we have found that there is a "generally recognized danger associated with ATMs and night depositories," there is no authority extending this finding to parking lots. Whitmore, supra at 770, 484 S.E.2d 708. Indeed, as Carlock states in his brief, it is sad but true that many public areas are all too frequently the scene of criminal activity. In Whitmore, we gave special consideration to ATMs because of the "well documented reality" that ATM customers, who are known to be either depositing or withdrawing significant amounts of money outdoors in full public view, are frequently the subjects of robberies. See id.; Killebrew, supra at 110, 464 S.E.2d 207 (Sears, Justice, concurring specially). These special circumstances are absent in the instant case.

For the foregoing reasons, we find that Carlock failed to present any evidence creating a triable issue of whether the tragic shooting in this case was foreseeable to Cub Foods. Accordingly, the trial court did not err in granting Cub Foods summary judgment. In light of this ruling, it is unnecessary to address Carlock's two other enumerations asserting error in the trial court's grant of summary judgment to Cub Foods.

2. We do find, however, that the trial court erred in granting Kmart partial summary judgment on Carlock's claim for punitive damages.

Pursuant to OCGA § 51-12-5.1(b), "[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." "The latter expression relates to an intentional disregard of the rights of another [and] knowingly or wilfully disregarding such rights. Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. Negligence, even gross negligence, is inadequate to support a punitive damage award." (Citations and punctuation omitted.) Ga. Farm, etc., Ins. Co. v. Miller, 222 Ga.App. 95, 96-97(1)(b), 473 S.E.2d 189 (1996).

In support of its motion, Kmart points to evidence showing that the parking lot was well lit and that during September 1992, due to employee complaints about property crimes in the parking lot, it retained Wells Fargo Guard Services to patrol the area. The record shows that on the night of the shooting, a Wells Fargo security guard was on duty and patrolled the entire parking lot until 9:00 p.m., when Kmart closed. Pursuant to his duties, however, the security guard then parked his cart in front of Kmart and "stayed in that portion of the parking lot to watch and assist [Kmart] employees as they walked to their cars." The security guard was permitted to leave once all the Kmart employees had left the building, which was usually before 10:00 p.m. On the night of the incident, the security guard was walking to his car when he learned of the shooting.

Carlock contends that, in light of previous parking lot criminal activity known to Kmart, its failure to provide security patrols to Cub Food customers at the time of the shooting raised the...