Fowler v. Robertson, 72021

• Decision Date: 08 April 1986
• Docket Number: No. 72021,72021
• Citation: 344 S.E.2d 425,178 Ga. App. 703
• Parties: FOWLER v. ROBERTSON.
• Court: Georgia Court of Appeals

Page 425

344 S.E.2d 425

178 Ga.App. 703

FOWLER v.ROBERTSON.

No. 72021.

Court of Appeals of Georgia.

April 8, 1986.

Timothy S. Minors, La Grange, for appellant.

Robert R. Gunn II, Macon, for appellee.

BIRDSONG, Presiding Judge.

Summary Judgment--Guest Injury.The facts leading up to this grant of summary judgment show that in about 1976, C.E. Fowler, Jr., the son of C.E. and Loretta Fowler, built a package store with the help of his parents and friends on a lot of land owned by his father, C.E. Fowler, Sr. in Meriwether County.That location was changed in about 1978 when Eddie, Jr. built another store on land purchased by Fowler, Sr. about a mile removed from the first store.Fowler, Sr. was a police officer who had worked for over 20 years in law enforcement, the last 18 years with the Hapeville force.By 1981, Fowler, Sr. had accrued vested retirement rights and left the police force.He and his family moved to Meriwether County in the late 1970's.Fowler, Sr. spent much of his time helping out in his son's package store but received no wages and did not consider himself an employee.Both the father and son kept a gun in the store as protection against possible robbery attempts of the liquor store.There had never been such an attempt at either of the two locations during the period from 1976 until 1981.The two Fowlers had considered the possibility of a robbery, and it was agreed that if an armed robber entered the store, the money would be surrendered without resistance.

On Christmas Eve, 1981, Mrs. Fowler (the elder Fowler's wife and the younger Fowler's mother) brought supper to the two men who were working at the package store.She visited with her two men behind the counter of the package store.After she had been there about 30-40 minutes, two men entered the front door with guns drawn and pointed at the three behind the counter.With no warning or other demands, the two robbers commenced firing.Eddie, Jr. pushed his mother beneath the counter.He himself was struck in the neck and fell to the floor beside her.Fowler, Sr., though already wounded, managed to reach his gun which was underneath the counter.He returned fire and fatally wounded one of the robbers.Meantime, the other rounded the counter and continued to fire at all three of the Fowlers.Father and son were both killed, and Mrs. Fowler sustained four gunshot wounds from which she ultimately recovered.

Mrs. Fowler brought this suit against the administrator of her son's estate, contending that by having guns in the package store, inviting her to remain behind the counter, and aggressively resisting the robbers, Fowler, Jr. exhibited negligence in the maintenance of his business and unnecessarily endangered Mrs. Fowler who was an invited guest on the premises.Because Fowler, Jr. had an insurance policy protecting the premises and its guests from negligence of the owner with Continental Casualty Company, Continental was allowed to intervene by counterclaim to determine its potential liability under the policy.Upon motion for summary judgment by Continental, the trial court concluded the robbery attempt was an unexpected criminal act by a third party and did not constitute an act of negligence by the policyholder so as to extend coverage to Mrs. Fowler.The trial court granted summary judgment to Continental, resulting in the filing of this appeal by Mrs. Fowler.Held:

We start with recognition of the general rule concerning liability of a proprietor for injuries to his guests that unforeseen and unexpected acts particularly those mala in se perpetrated by third parties on the proprietor's premises do not activate liability by the proprietor.This rule is excepted, however, where it is shown that the proprietor has reasonable grounds for apprehending that the very type criminal act which resulted in injury to his guests is reasonably likely to occur.SeeMcCoy v. Gay, 165 Ga.App. 590, 302 S.E.2d 130.

There is no dispute that Eddie, Jr.'s...