Grandma's Biscuits, Inc. v. Baisden

• Court: Georgia Court of Appeals
• Writing for the Court: BANKE
• Citation: Grandma's Biscuits, Inc. v. Baisden, 386 S.E.2d 415, 192 Ga.App. 816 (Ga. App. 1989)
• Decision Date: 18 September 1989
• Docket Number: No. A89A0941,A89A0941
• Parties: GRANDMA'S BISCUITS, INC. v. BAISDEN.

Page 415

386 S.E.2d 415

192 Ga.App. 816

GRANDMA'S BISCUITS, INC. v. BAISDEN.

No. A89A0941.

Court of Appeals of Georgia.

Sept. 18, 1989.

James T. Budd, Atlanta, for appellant.

W. Wheeler Bryan, Atlanta, for appellee.

BANKE, Presiding Judge.

The appellee sued to recover for injuries sustained when he was shot, without provocation or apparent motive, by an unknown assailant while a patron at a restaurant owned and operated by the appellant. The case is before us on interlocutory appeal from the denial of the appellant's motion for summary judgment. The appellant contends that the assailant's conduct was an unforeseeable criminal act for which it cannot be held responsible, while the appellee maintains that the assault was foreseeable and that the appellant was negligent in providing security at the restaurant. Held:

1. The general rule is that a landowner is under no duty to anticipate a criminal assault against an invitee by a third party; however, "[t]he rule has been held inapplicable if the landowner had reasonable grounds for apprehending that such a criminal act would be committed. [Cit.]" Nalle v. Quality Inn, 183 Ga.App. 119, 120, 358 S.E.2d 281 (1987). Evidence of prior criminal acts may be admitted to establish that the landowner was on notice that his patrons were subject to the risk of criminal assault, provided that the circumstances surrounding the prior acts were "substantially similar" to those surrounding the acts on which the suit is predicated. See McCoy v. Gay, 165 Ga.App. 590, 592, 302 S.E.2d 130 (1983). "Whether a 'substantial similarity' exists must be determined by the facts of each individual case. It is not required that the offenses be identical. 'All that is required is that the prior (incident) be sufficient to attract the owner's attention to the dangerous condition which resulted in the litigated (incident).' " MARTA v. Allen, 188 Ga.App. 902, 903, 374 S.E.2d 761 (1988).

In support of its motion for summary judgment, the appellant relied on testimony from several of its officers and employees, including the restaurant's manager, to the effect that no shooting or other violent crime had previously occurred at the restaurant. In opposition to this testimony, the appellee submitted a police computer printout showing that between 1981 and 1984 various other criminal offenses had been reported at the address in question. However, none of those offenses had involved a shooting, and only one, which had occurred approximately five months prior to the occurrence on which the present action is based, had involved an assault. The appellant maintains that, in the absence of a showing that the circumstances of that assault were similar to those of the assault for which the appellee seeks to recover, this evidence fails to satisfy the "substantial similarity" requirement and thus fails to negate the evidence offered in support of its motion for summary judgment. We agree. The computer printout does not reveal whether the prior assault occurred inside the...