Deese v. NationsBank of Georgia, N.A., A96A0643

CourtUnited States Court of Appeals (Georgia)
Citation222 Ga.App. 275,474 S.E.2d 18
Docket NumberNo. A96A0643,A96A0643
Decision Date28 June 1996

Kirbo & McCalley, Thomas L. Kirbo, III, Jon V. Forehand, Moultrie, for appellant.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Griffith J. Winthrop, III, Austell, for appellee.

BIRDSONG, Presiding Judge.

Paul Deese appeals the grant of summary judgment to NationsBank of Georgia, N.A. f/k/a Citizens & Southern National Bank. He contends the trial court erred by granting summary judgment because genuine issues of material fact remained for trial.

The record shows that one morning Deese arrived to cash a check at a NationsBank's branch shortly before the time the bank opened its drive-through lanes. While waiting for the bank to open, he parked his pickup truck in the drive-through lane.

A few minutes earlier, Collins, the bank's security officer responsible for opening, noticed a man driving a car slowly around the bank's vicinity, watching Collins' movements and the bank. Thinking this suspicious, Collins decided to test the bank's security procedures, so he did not put out the "all clear" signal. That signal would inform arriving employees all was normal and they could approach the bank. In the absence of this signal, employees were not to approach the building but were to go to a telephone and call the bank. Then, depending upon a code given during that call, they would make another call to the police to report a robbery in progress. The exact nature of the "all clear signal" is not in the record, but it is undisputed that it should have been visible to any approaching employee and all employees should have checked for it before approaching the bank.

Prince, the branch manager, however, approached the bank without looking for the signal or noting its absence. The suspicious man approached Prince, produced a shotgun, forced her into the bank, and robbed it. Collins had deactivated the alarm as part of his test of the security procedures, but when he placed a special code in the vault's lock to reactivate the alarm and sound it, no alarm sounded. Nor did any alarm sound when the robber took certain "bait money," the removal of which was designed to set off an alarm. While the robbery was in progress, several other employees also entered the bank without regard to the absence of the "all clear" signal.

While the robber was inside the bank, Roberts, a bank employee known to Deese, approached him and asked whether anyone was in the bank and how long he had been waiting. Although Roberts failed to note the ambush signal, she could tell something was amiss from looking in the bank's windows. According to her deposition, she advised Deese something was wrong and told him to leave the premises, but she said he did not wish to do so because he was concerned about the people inside the bank, but he did say he would accompany her to a nearby store where she would make the necessary telephone calls. Deese testified, however, that she equivocally asked him to leave, which he took to be a request to leave the drive-through lane to allow the bank's opening procedures to continue. He specifically denied Roberts told him anything was wrong. Roberts, joined by another employee, got into her own car and drove to a nearby public telephone within sight of the bank.

Deese did not go with Roberts. Instead, he testified he drove his pickup truck to the bank's front parking lot, double parked to wait for the drive-through lanes to open, and began to read the newspaper. Unknown to anyone, however, this spot was near the bank robber's car. When the man who robbed the bank emerged and approached his car, Deese asked him if the bank was opened. The man replied, in vulgar terms, it was none of Deese's business. After watching the man approach his car and throw a garbage bag in the window, Deese went back to reading his paper. The man then yelled at Deese and when Deese looked up he saw the man pointing a shotgun at him and motioning for Deese to move his truck. Deese backed up, but the man kept pointing the shotgun at him through the car's window while the man attempted to move his car and leave the parking lot.

At this time, according to his deposition, Deese did not know and had no reason to know the bank had been robbed. Instead, Deese testified that he believed the man to be a disgruntled bank employee. Nevertheless, because of his unpleasant verbal encounter with the man and because the man kept pointing the shotgun at him and might shoot him, Deese decided to ram his truck into the man's car, disable the car, and call the police. When the man's car stopped, Deese accelerated and crashed his pickup truck into the front part of the man's car. The man jumped out, came around the front of his car, and shot Deese through the windshield of his pickup, but Deese avoided the full brunt of the blast by ducking. The man then went back to his own car and drove away. Despite injuries to his shoulder, hands, face, and eyes, Deese pursued in his truck. The chase ended when the car, which had been damaged when Deese rammed it, ceased to function. Deese approached a house and told the residents to call the police. They came, the robber was captured, and the money was recovered.

Deese sued the bank for damages. He contended, under a theory of premises liability (OCGA § 51-3-1), that he was injured as a result of the bank's negligence in executing its security procedures and in failing to warn him of the danger posed that morning. He further asserts that the bank violated federal banking regulations requiring security systems and procedures, see 12 CFR §§ 21.1-21.4, and thus was negligent per se under OCGA § 51-1-6. Deese asserted that the behavior of the employees on the morning of the robbery, and the failure of the alarms to sound when they should have been activated, would allow a jury to conclude that the bank violated the duties imposed by these regulations. Deese also contends a jury could determine that the bank breached its duty to exercise ordinary care to guard him against injury from the robber because of the specific circumstances occurring on the bank's premises that morning, and that the bank voluntarily assumed a duty to protect him by adopting security measures and breached that duty by negligently failing to follow those security measures.

Upon NationsBank's motion, the lower court granted summary judgment to the bank because the court found that there had been no substantially similar incident at the bank sufficient to create a duty to protect Deese from this kind of misconduct. This appeal followed. Held:

1. The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. On appeal, the grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga.App. 764, 767, 431 S.E.2d 746.

2. Regardless of whether NationsBank's equipment and procedures worked properly or whether NationsBank was otherwise negligent, NationsBank can only be liable to Deese if its negligence was the proximate cause of his injuries. Atlanta Obstetrics, etc. v. Coleman, 260 Ga. 569, 398 S.E.2d 16.

Here, the evidence, without question, leads only to the conclusion that NationsBank was not the proximate cause of Deese's injuries. Deese was shot because of his own actions: For his own reasons, he elected to crash his truck into the side of the gunman's car, and not because of anything NationsBank did or failed to do. Although ordinarily a jury question, lack of proximate cause may be decided as a matter of law when "the causal connection between [the defendant's] conduct and the injury is too remote for the law to countenance a recovery." (Citation and punctuation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga.App. 63, 67, 397 S.E.2d 576. Thus, the question of proximate cause could be decided as a matter of law by the court. Atlanta Obstetrics, etc. v. Coleman, supra at 570, 398 S.E.2d 16.

Here, Deese's own testimony shows that NationsBank's purported negligence was not the cause in fact of Deese's injuries. Further, nothing in this record provides any reason to conclude that NationsBank should have foreseen either the bank robbery (see Sun Trust Banks v. Killebrew, 266 Ga. 109, 464 S.E.2d 207; Savannah College of Art etc. v. Roe, 261 Ga. 764, 765, 409 S.E.2d 848) or that Deese would take the actions he did which resulted in his injuries. Western Stone & Metal Corp. v. Jones, 180 Ga.App. 79, 80-81, 348 S.E.2d 478. Therefore, the evidence establishes unquestionably that NationsBank was not the proximate cause of Deese's injuries. McAuley v. Wills, 251 Ga. 3, 7, 303 S.E.2d 258; Southern Bell Tel., etc., Co. v. Dolce, 178 Ga.App. 175, 176-177, 342 S.E.2d 497.

Consequently, summary judgment was appropriate because viewing all the facts and reasonable inferences from those facts in a light most favorable to Deese, the evidence does not create a triable issue on the question of proximate cause (Lau's Corp., supra at 495, 405 S.E.2d 474). Accordingly, summary judgment was properly granted to NationsBank regardless of the reasons given by the trial judge. Malaga Mgmt. Co. v. John Deere Co., supra.

Although the dissent contends that we should not reach the issue of proximate cause in this manner because it was not raised in the trial court, we find no support for that contention. NationsBank's argument below was that it had no duty to protect Deese from the intervening cause because it was not foreseeable. In this sense, foreseeability is included within concept of proximate cause: "The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that for a variety of reasons, e.g. intervening act, the defendant's conduct and the plaintiff's injury are too remote for the law to...

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