Double View Ventures, LLC v. Polite
| Decision Date | 26 March 2014 |
| Docket Number | No. A13A2134.,A13A2134. |
| Citation | 757 S.E.2d 172,326 Ga.App. 555 |
| Court | Georgia Court of Appeals |
| Parties | DOUBLE VIEW VENTURES, LLC et al. v. POLITE. |
OPINION TEXT STARTS HERE
Hawkins, Parnell, Thackston & Young, Warner S. Fox, Matthew George McLaughlin, Atlanta, for Appellants.
Julie Ann Dlott, D. Richard Jones III, Summerville Moore, Darren Summerville, Nelson Otis Tyrone III, Atlanta, Sidney Leighton Moore III, for Appellee.
Nathaniel Polite filed a premises liability suit against Double View Ventures LLC (“Double View”) and Westdale Asset Management Ltd. (“Westdale”), the owner and property manager, respectively, of the apartment complex in which he lived at the time he was attacked by unknown assailants. Following a trial, the jury returned a verdict for Polite, determining that Double View and Westdale (collectively, “the Defendants”) were significantly at fault for Polite's injuries, Polite was somewhat at fault, and the unknown assailants were not at fault. The Defendants appeal from the denial of their motion for new trial, contending that the trial court erred in: (1) refusing to allow the jury to consider an apportionment of fault with respect to the nonparty owner of the property adjacent to the apartment complex; (2) denying their motion for new trial on the basis that the jury's failure to assign fault to the criminal assailants was contrary to or strongly against the evidence; (3) giving a charge on proximate cause that was inconsistent with the statutory requirement regarding apportionment of fault; and (4) excluding bad character evidence after Polite elicited testimony showing his good character. For the reasons that follow, we reverse.
Viewed in favor of the verdict,1 the evidence shows that on the evening of May 30, 2007, Polite, then a resident of Stonebridge Apartments, walked along a dirt path leading from the parking lot in front his apartment to the Chevron gas station located adjacent to the apartment complex. It was well documented that residents of the apartments and their guests would use that path to go to the Chevron convenience store. The path went up a small hill to a wooden fence, which served as a boundary between the two properties, and the wooden fence had an opening that allowed for access back and forth across the properties. Polite passed through the fence and then continued walking to the Chevron station's convenience store, where he bought a soft drink and a pack of cigarettes. Polite then exited the store and began walking back to his apartment.
As Polite walked back through the fence, two assailants, who were hiding behind the wooden fence, threw bleach into his face. Polite, whose eyes were burning, started running down the hill toward his apartment and screaming for his friends. One of the assailants then fired a gun, and the bullet struck Polite in the back, injuring his spine. It was not known if the assailants came from the apartment complex or the Chevron station.
Polite was subsequently taken to a hospital for his injuries and he remained there for several months. As a result of the gunshot wound, Polite has difficulty walking, requires the use of a cane, is unable to stand for long periods of time, and has bowel and bladder problems. Polite's assailants were never apprehended.
In the three years preceding the attack on Polite, at least a dozen armed robberies and a number of aggravated assaults had occurredat the Stonebridge Apartments. Furthermore, approximately two weeks prior to Polite's attack, an apartment resident was attacked soon after passing through the wooden fence as he was walking back home along the dirt path from the Chevron station. That individual reported the incident to the complex manager of Stonebridge Apartments. Another attack was also reported to the complex manager approximately one week before Polite's attack.
A security expert testified that given the documented history of armed robberies and aggravated assaults at Stonebridge Apartments, the access and perimeter control for the property fell below the standard of care. The security expert testified that, while the apartment complex had wrought-iron gates and chain link fencing surrounding most of the property, the use of the wooden fence as a means to control access from the convenience store was inadequate. The security expert also testified that the wooden fence was actually harmful because it provided a cover for would-be assailants to hide behind while waiting for victims. A former Stonebridge Apartments security guard testified that, beginning in January 2007, he made numerous reports to management identifying the opening in the wooden fence as a significant security violation, because it left residents unprotected. The security guard stated that nothing was done to respond to his concerns.
Following his attack, Polite sued the Defendants, alleging that they were negligent in failing to exercise ordinary care in keeping the premises safe and that their failure to provide adequate security in light of the prior criminal activity was the proximate cause of his injuries. Following a trial, the jury returned a verdict for Polite, finding that he was 13% at fault and the Defendants were 87% at fault. Although the unknown assailants were on the verdict form, the jury did not apportion any fault to them. Pursuant to the trial court's ruling, the verdict form did not include the name of Chevron gas station for the jury to determine whether it should be apportioned fault.
1. On appeal, the Defendants contend that the trial court erred in refusing to allow the jury to consider the percentage of fault of the Chevron station and to apportion damages among the Defendants and the Chevron station, pursuant to OCGA § 51–12–33. We agree.
Prior to trial, the Defendants filed three different notices of intent to seek apportionment of fault among non-parties as well as parties pursuant to OCGA § 51–12–33(d). The three notices named at least three different entities as the owner of the Chevron gas station located adjacent to the Stonebridge Apartments.
At trial, evidence was elicited that, in addition to the criminal incidents on the apartment complex property in the three years preceding Polite's attack, there were approximately nine robberies or assaults on the Chevron property, both inside and outside the store. Other evidence showed that the wooden fence in question was built by the owners, or former owners, of the Chevron station. A survey of the Chevron property shows that the fence is 12 feet away from the property line abutting Stonebridge Apartments.
A former Stonebridge Apartments complex manager testified that the Defendants began repairing the fence after individuals ripped out planks in order to cross between the convenience store and the apartment complex. The manager further testified that she attempted to contact the owners of the Chevron station to determine who was responsible for the fence and to propose sharing the costs of installing a wrought-iron fence; however, she received no response from the Chevron station owners. The manager also stated that the Defendants ultimately installed a wooden gate to deter people from tearing off planks from the fence.
Following the close of evidence, the trial court considered Polite's motion for a directed verdict on the issue of putting the Chevron station on the verdict form for an apportionment of fault. Although the trial court initially questioned the validity of the Defendants' pretrial notices on the ground that the Defendants had not established the true legal owner of the Chevron station, it concluded that the notices were legally adequate. The trial court nevertheless determined that the Chevron station would not be on the verdict form because the Defendants failed to produce any evidence creating a jury question as to whether the Chevron station was responsible for any of the repairs or had knowledge of the existing condition of the fence.
Here, the trial court essentially granted Polite's motion for a directed verdict on the apportionment-of-fault issue with respect to the Chevron station.
A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the nonmovant, demands a particular verdict. OCGA § 9–11–50(a). But where any evidence or some evidence exists to support a jury issue on the non-movant's claims, a directed verdict is improper. This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict only if all of the evidence demands it.
(Citations and punctuation omitted.) Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga.App. 832, 835, 730 S.E.2d 556 (2012).
(a) The apportionment-of-fault statute at issue, OCGA § 51–12–33,
establishes the mechanism by which a trier of fact apportions damages. First, if the plaintiff is some degree responsible for its own injuries, the trier of fact determines the percentage of fault of the plaintiff, and the judge thereafter reduces the total amount of damages awarded in proportion to the plaintiff's percentage of fault. Next, in cases involving an action against more than one actor, the trier of fact apportions the remaining damages among the liable actors according to each actor's percentage of fault.
(Punctuation and footnotes omitted.) Levine v. SunTrust Robinson Humphrey, 321 Ga.App. 268, 271(1), 740 S.E.2d 672 (2013). “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” (Emphasis supplied.) OCGA § 51–12–33(c).
The purpose of the apportionment statute is to have the jury consider all of the tortfeasors who may be liable to the plaintiff together, so their respective responsibilities for the harm can be determined.... By its plain language, OCGA § 51–12–33(b) makes all persons...
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