Hillcrest Foods, Inc. v. Kiritsy, A97A0853

• Decision Date: 11 July 1997
• Docket Number: No. A97A0853,A97A0853
• Parties: , 97 FCDR 2655 HILLCREST FOODS, INC. v. KIRITSY.
• Court: Georgia Court of Appeals

Page 547

489 S.E.2d 547

227 Ga.App. 554, 97 FCDR 2655

HILLCREST FOODS, INC. v. KIRITSY.

No. A97A0853.

Court of Appeals of Georgia.

July 11, 1997.

Reconsideration Denied July 24, 1997.

Certiorari Denied Jan. 23, 1998.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, Jo B. Gosdeck, Atlanta, for appellant.

Gorby & Reeves, Michael J. Gorby, Mary D. Peters, Atlanta, Blakely H. Frye, Marietta, for appellee.

BLACKBURN, Judge.

By interlocutory appeal, Hillcrest Foods, Inc. d/b/a Waffle House (Hillcrest) contests the denial of its motion for summary judgment as to premises liability and punitive damages in Matthew Kiritsy's action for personal injury damages. This case arises out of a drive-by shooting at a Waffle House where Kiritsy was a patron. The trial court granted Hillcrest's motion for summary judgment on Kiritsy's claim for negligent retention of its employee Letitia Johnson, the intended victim, who was the wife of the shooter, Nathaniel Johnson. The trial court did not rule on Hillcrest's motion for summary judgment as to punitive damages, which is therefore deemed denied. See Kim v. Tex Financial Corp., 223 Ga.App. 528, 529(2), 479 S.E.2d 375 (1996).

The standard of review of the denial of a defendant's motion for summary judgment is a de novo review of the evidence of record with all reasonable inferences therefrom viewed in the light most favorable to the nonmoving party. The purpose of the review is to determine whether there remains a question for jury determination as to at least one material fact upon which plaintiff's case rests. If defendant points out the failure of plaintiff to establish any single element essential to the claimed cause of action, then defendant is entitled to summary judgment as to such claim.

"A defendant may [establish entitlement to summary judgment] by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." (Citation omitted; emphasis in original and supplied.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); see Artlip v. Queler, 220 Ga.App. 775, 776-777, 470 S.E.2d 260 (1996).

It is undisputed that while Kiritsy was a patron at the Waffle House on West Broad Street in Athens at approximately 1:00 a.m on September 16, 1994, three or four shots were fired from a gun in a vehicle traveling on West Broad Street. Kiritsy was struck by two bullets and is paralyzed from the waist down. Although no arrests have been made, a witness to the shooting, who had been a passenger in the vehicle from which the shots were fired, testified in his deposition that Nathaniel Johnson fired the shots in an attempt to kill his wife, Letitia Johnson, a waitress at the Waffle House.

1. Hillcrest maintains that the trial court erred in failing to grant its motion for summary judgment with regard to Kiritsy's claims for damages based upon premises liability. Hillcrest contends that: there is no causal relationship between its conduct and the criminal act of a drive-by shooting; there is no evidence of prior, substantially similar crimes on its property or the approaches thereto and therefore the shooting was not foreseeable; and that there was no reasonable action which it could have taken which would have prevented the incident in any event.

Hillcrest filed its motion for summary judgment on all counts and outlined the record upon which it relied. The trial court granted summary judgment to Hillcrest on plaintiff's claim that Hillcrest was liable for his injuries based upon its negligent retention of Letitia Johnson. Kiritsky contends that Hillcrest negligently retained Johnson after it became aware of prior disputes between Johnson and her husband.

In its order, the trial court found that "plaintiff alleges that the direct cause of his injuries was the intervening criminal act of a third party, Nathaniel Johnson" and that "it violates public policy and is patently absurd to suggest that, because Letitia Johnson was a victim of domestic violence, she should have been terminated." The trial court held that a question of fact regarding foreseeability remained as to the premises liability claim in that prior similar criminal acts are not the only way of proving foreseeability, relying on Doe v. Prudential-Bache/A.G. Spanos Realty, etc., 222 Ga.App. 169, 474 S.E.2d 31 (1996) and Wallace v. Boys Club of Albany, etc., 211 Ga.App. 534, 439 S.E.2d 746 (1993).

The trial court stated in its denial order that "[t]he shooting of the Plaintiff was a crime against the person. Plaintiff presented evidence of prior crimes against persons committed on the premises as follows: 1) December 8, 1991, Tamra White was punched in the face; 2) July 21, 1992, an employee of the Waffle House was the victim of an aggravated assault and attempted rape; 3) July 20, 1993, an unidentified person attempted to run over John Batch with an automobile; 4) January 1, 1994, an unidentified male robbed a patron at gunpoint on the premises; 5) February 6, 1994, Keith Hodapp was attacked on Defendant's premises by Trey Ford and struck with fists; 6) March 20, 1994, a fight broke out at the Waffle House wherein the victim was punched in the face resulting in the offender being charged with simple battery, impersonating a law enforcement officer and giving false information. There was also evidence from employee Sarah Collins that fist fights and arguments on the premises were quite common." For purposes of summary judgment analysis, we accept all these findings as true, such view being most favorable to the nonmovant.

In order for plaintiff to establish the negligent tort claim, it must show that Hillcrest violated its duty to plaintiff, and that such violation was the proximate cause of plaintiff's injuries. See OCGA § 51-1-1. Hillcrest's customers, having been induced to come onto its property by implied invitation, are invitees. The duty of a proprietor to an invitee is to "exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. "The proprietor is not the insurer of the invitee's safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge." (Citation omitted.) Lau's Corp., supra at 492(1).

In order to establish liability of a proprietor for the independent criminal acts of another which result in injury to one of its customers, it must generally be shown that the subject criminal act occurred on the premises or approaches of the proprietor's property or on adjacent property over which the proprietor has exercised some degree of control, that the proprietor had reasonable notice of prior, similar criminal acts of such a nature that the proprietor was put on notice of the likelihood of the subject criminal act being committed, and that given such notice, the proprietor could reasonably have acted thereon to protect its customers. See OCGA § 51-3-1; Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339 (1997); and Lau's Corp., supra.

We first address the issue of whether Hillcrest's duty under OCGA § 51-3-1 to protect its customers while on its premises or approaches extends to acts which are initiated from a public thoroughfare over which Hillcrest has no authority and has not otherwise exercised control. We have held that a proprietor "has a duty, when [it] can reasonably apprehend danger to a customer from the misconduct of other ... persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct." (Citation and punctuation omitted; emphasis supplied.) Adler's Package Shop v. Parker, 190 Ga.App. 68, 69(1)(a), 378 S.E.2d 323 (1989).

Although the premises owner has a duty to keep the premises and approaches safe, see OCGA § 51-3-1, "[i]f the approach is a public way, the occupier's duty ... is to exercise due care within the confines of his right in the public way." (Punctuation omitted.) Reed v. Ed Taylor Constr. Co., 198 Ga.App. 595, 597, 402 S.E.2d 346 (1991).

No evidence has been introduced showing that Hillcrest used the public road in front of the Waffle House in any manner other than that consistent with the general motoring public....