Ga. CVS Pharm. v. Carmichael
Docket Number | S22G0527,S22G0617,S22G0618 |
Decision Date | 29 June 2023 |
Parties | GEORGIA CVS PHARMACY, LLC v. CARMICHAEL. WELCH et al. v. PAPPAS RESTAURANTS, INC. WELCH et al. v. TACTICAL SECURITY GROUP, LLC. |
Court | Georgia Supreme Court |
Collectively these cases present an opportunity to explore the scope and nature of the liability faced by premises owners, occupiers and security contractors in cases involving personal injuries arising from third-party criminal conduct. Although the underlying appeals vary with respect to their facts and specific issues presented, the resolution of each appeal necessitates consideration of fundamental principles of premises liability under Georgia law.
In granting certiorari in these cases, we posed the following questions:
1. For a claim brought under OCGA § 51-3-1 that alleges negligent security, to what extent, if at all, is proof that the underlying criminal act occurring on the premises was reasonably foreseeable part of the plaintiff's burden to prove the elements of duty, breach, or proximate cause?
2. In light of the answer to the first question, is the question whether a criminal act occurring on the premises was reasonably foreseeable generally for the judge or the factfinder?
3. What is the legal test for determining whether a criminal act occurring on the premises was reasonably foreseeable? For example, is reasonable foreseeability determined based on the totality of the circumstances, or is some more specific showing required, such as prior, substantially similar crimes occurring on or near the premises?
In Case No. S22G0527, we also specifically asked the following:
4. When apportioning fault, can a rational factfinder determine that an intentional tortfeasor whose actions directly caused the plaintiff's injuries bears no fault for those injuries?
Finally in Case No. S22G0618, we posed the following question:
5. Under Georgia law, does a party rendering security services to the owner or occupier of property in a premises-liability case owe a duty of care to third parties under any of the bases set out in Section 324A of the Restatement (Second) of Torts?
Today, as discussed more fully below, we clarify that the reasonable foreseeability of a third-party criminal act is a determination linked to a proprietor's duty to keep the premises and approaches safe under OCGA § 51-3-1, and that the totality of the circumstances informs whether a third-party criminal act was reasonably foreseeable. Moreover, the question of reasonable foreseeability is generally reserved to the trier of fact, but the trial court may resolve the issue as a matter of law where no rational juror could determine the issue in favor of the non-moving party. Additionally, with respect to Case No. S22G0527, we hold that, under the specific circumstances of the case before us, the verdict apportioning no fault to the intentional tortfeasor is not inconsistent because, when considered in conjunction with the instructions to the jury, the verdict is capable of a viable construction. And with respect to Case No. S22G0618, we hold that a party rendering security services to a proprietor may owe a duty of care to third parties visiting the premises in accordance with the standard outlined in Section 324A of the Restatement (Second) of Torts.
Consistent with these conclusions, we affirm the judgment of the Court of Appeals in Case No. S22G0527; and in Case Nos. S22G0617 and S22G0618, we reverse in part and vacate in part the judgments of the Court of Appeals and remand the cases for reconsideration consistent with this opinion.
In each of the cases at bar, the plaintiffs, while present as invitees on property owned, operated, and/or secured by the defendants, sustained injuries resulting from third-party criminal conduct. One person died as a result of his injuries. We summarize the relevant factual and procedural histories of the cases before us below.[1]
Plaintiff James Carmichael was shot during an armed robbery that took place in and around his vehicle in the parking lot of a CVS store; Carmichael thereafter filed a premises liability claim against CVS. Following a trial, the jury awarded damages to Carmichael, finding CVS ninety-five percent at fault for Carmichael's injuries and Carmichael five percent at fault, but apportioning no fault to the shooter. The Court of Appeals affirmed, holding that there was sufficient evidence from which a reasonable jury could conclude that the crime was foreseeable. The Court of Appeals further concluded that the jury's verdict apportioning no fault to the shooter was not void because the jury "'considered' the fault of all who potentially contributed," including the shooter, and because, the court reasoned, the jury could have decided, based on the evidence, not to assign any fault to the shooter. Ga. CVS Pharmacy, LLC v. Carmichael, 362 Ga.App. 59, 63-67, 70-71 (1), (3) (865 S.E.2d 559) (2021). The Court of Appeals also noted that, even if the evidence was insufficient to support the jury's apportionment of fault, any error was harmless because, under its reading of OCGA § 51-12-33 (b), damages may be reduced only when multiple defendants are named in a case. Thus, the Court of Appeals concluded, CVS would not have been entitled to apportionment of damages. See id. at 71 (3). CVS filed a petition for certiorari in this Court, which we granted.
B. Case Nos. S22G0617 and S22G0618
Anthony L. Welch ("Anthony") was killed during an armed robbery in the parking lot of the Pappadeaux restaurant; the parking lot was patrolled by Tactical Security pursuant to Tactical's contract with Pappas Restaurants, Inc., the owner of Pappadeaux. Anthony's surviving spouse, Cynthia Welch ("Welch"), filed suit[2]against Pappas and Tactical (collectively, "the defendants"), raising several claims, including one for premises liability based on the defendants' alleged negligence in securing the property. The trial court denied the defendants' separate motions for summary judgment, but the Court of Appeals reversed, holding that Anthony's shooting was not reasonably foreseeable and that the defendants' liability was therefore precluded. Pappas Restaurants, Inc. v. Welch, 362 Ga.App. 152, 154-161 (1) (a)-(b) (867 S.E.2d 152) (2021). Further, the Court of Appeals declined to hold that Tactical owed any duty to the Welches under Section 324A of the Restatement (Second) of Torts. Id. at 162-163 (2). We thereafter granted Welch's petitions for certiorari.
Turning to the underlying legal principles, we recognize that the case law that has developed over the years in Georgia premises liability cases involving third-party criminal activity has not plotted a clear roadmap for parties, litigators, or trial courts. It is well-settled that a proprietor owes its invitees a duty "to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1.[3]It is also generally accepted that, while a proprietor is "bound to exercise ordinary care to protect the invitee from unreasonable risks" of which he has knowledge, he is not an insurer of an invitee's safety. See Lau's Corp. v. Haskins, 261 Ga. 491, 492(1) (405 S.E.2d 474) (1991).
See also Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 328 (II) (801 S.E.2d 24) (2017) (same). Moreover, the law recognizes that, where an invitee is injured by a third party's intervening criminal act, the proprietor is generally insulated from liability; an exception to this general rule arises, however, where the proprietor had sufficient reason to anticipate such criminal conduct. See Martin, 301 Ga. at 328 (II). We granted certiorari in these cases in part to address the relationship between reasonable foreseeability and the specific elements of a premises liability claim involving third-party criminal activity, the respective roles of the trial court and the jury in that analysis, and how reasonable foreseeability should be determined.[4]
A. The reasonable foreseeability of a crime informs the duty owed.
As a general rule, in order to recover on a premises liability claim arising from third-party criminal conduct, a plaintiff must present evidence of a duty, a breach of that duty, causation, and damages. See Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840, 841-842 (1) (797 S.E.2d 87) (2017); Lau's Corp., 261 Ga. at 492. In our first question to the parties, we asked whether and how the concept of reasonable foreseeability informs each of these elements - that is, whether reasonable foreseeability is part of the plaintiff's burden to prove the elements of duty, breach, or causation. We hold that the reasonable foreseeability of third-party criminal conduct is properly considered as part of a proprietor's duty to exercise ordinary care in keeping the premises and approaches safe under OCGA § 51-3-1 although considerations of foreseeability also inform other elements of a premises liability claim, as we will discuss below.
Relying on prior decisions of this Court, Pappas and CVS both argue - and we agree - that reasonable foreseeability factors into the analysis of the duty element. More specifically, the foreseeability of the criminal act informs whether the proprietor's duty of ordinary care owed pursuant to OCGA § 51-3-1 encompasses the duty to keep invitees safe from third-party criminal conduct. Under longstanding precedent, "[i]f the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters." (Citation and punctuation omitted.) Lau's Corp., 261 Ga. at 492 (1). See also Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785,...
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