Khalia, Inc. v. Rosebud

• Decision Date: 06 December 2019
• Docket Number: A19A1891, A19A1969
• Parties: KHALIA, INC. v. ROSEBUD; and vice versa.
• Court: Georgia Court of Appeals

353 Ga.App. 350

836 S.E.2d 840

KHALIA, INC.

v.ROSEBUD; and vice versa.

A19A1891, A19A1969

Court of Appeals of Georgia.

December 6, 2019

Laurie Webb Daniel, Matthew D. Friedlander, Atlanta, for Appellant in A19A1891.

Glenn Scott Bass, Atlanta, Michael Thomas Rafi, Kurt G. Kastorf, Darren Summerville, Molly Lucille Moyer, Atlanta, for Appellee in A19A1891.

Kurt G. Kastorf, for Appellant in A19A1969.

Laurie Webb Daniel, Matthew D. Friedlander, Atlanta, for Appellee in A19A1969.

Phipps, Senior Appellate Judge.

These companion appeals arise from a shooting at a convenience store that left plaintiff Daniel Rosebud injured. After defendant Khalia, Inc. rejected Rosebud’s pretrial demand for $150,000, a jury found Khalia responsible for $1.134 million in damages. On appeal in Case No. A19A1891, Khalia argues that the trial court erred when it denied its motions for judgment notwithstanding the verdict (j.n.o.v.) on the issue of duty and for j.n.o.v. or new trial on the issue of causation. On cross-appeal in Case No. A19A1969, Rosebud argues that the trial court erred when it awarded him attorney fees under OCGA § 9-11-68 in an amount significantly below that specified in his contingency fee agreement. We find no error and affirm in both cases.

"The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict." (Citation and punctuation omitted.) Wilmock, Inc. v. French , 185 Ga. App. 259, 261 (1), 363 S.E.2d 789 (1987).

Thus viewed in favor of the verdict, the record shows that on November 1, 2015, Rosebud and his friend Dontavious Miles were looking for a barber to cut Miles’s hair for a new job when they stopped at a gas station and convenience store at 490 Fairburn Road in Atlanta. The property, which was leased to Khalia, included a chicken wing shop under different corporate ownership and a common parking area. Miles parked the car he was driving at the end of the gas pump island and went inside the convenience store while Rosebud napped in the front passenger seat. A man in a white hat began a conversation with Miles, after which shots were exchanged between the two men, some of which hit Rosebud. Miles drove away but was forced to stop by an oncoming train at a nearby railroad crossing. After Miles abandoned the car, Rosebud lay down to evade detection and then ran down the tracks, where he called 911.

Evidence before the jury showed that 490 Fairburn Road was a well-known scene of illegal drug transactions, loitering requiring police intervention, and at least two incidents of prior gunplay, including a shooting inside the store three days before the incident at issue. The store manager knew of the gunplay, and a beat officer testified that the location’s level of criminal activity required him to stop there four or five times a day. A detective also testified that although businesses are authorized to obtain a "criminal trespass warning" empowering the police to arrest trespassers, Khalia had never requested such a warning.

Khalia’s principal testified that the man in the white hat had been loitering outside and around the gas station for more than 20 minutes before the shooting. Although the store manager testified at trial that Khalia regularly held safety meetings and reported criminal activity, he was impeached with his own deposition testimony that store employees were instructed "never" to "make any sort of reports or document anything on paper[.]" The evidence also showed that there were 14 cameras located inside the store, but only two, which were not monitored, outside.

After the close of evidence, Khalia moved for a directed verdict on two issues: that Rosebud was a licensee rather than an invitee; and that the property owner, rather than Khalia, had a non-delegable duty to take reasonable care. The trial court granted the first motion and denied the second, establishing that Rosebud was a licensee but rejecting Khalia’s argument that the owner could be solely responsible as a matter of law for safety on the property. The jury then returned a verdict of $1,718,367.46 in total damages, finding Khalia 66% at fault, with Miles and the man in the white hat 17% each at fault. The trial court entered judgment on the verdict against Khalia in the amount of approximately $1.134 million.

Khalia moved for j.n.o.v. or a new trial on grounds including that it owed no duty to Rosebud because he was never on Khalia’s premises and that any breach of care by Khalia could not have been the proximate cause of the shooting. The trial court denied the motions, holding that both arguments were waived because they were not raised in the motion for directed verdict and that some evidence supported the conclusions that Rosebud was on Khalia’s property or its approaches and that Khalia failed to take reasonable care under the circumstances.

Case No. A19A1891

On appeal, Khalia argues that the trial court erred when it denied its motion for j.n.o.v. because there was no evidence that Khalia breached its duty to Rosebud. Khalia also argues that its motion for j.n.o.v. or new trial should have been granted because the shooter’s criminal conduct broke the chain of proximate causation. We disagree.

1. (a) Waiver of JNOV Motion . OCGA § 9-11-50 (b)

allows the device of a motion for judgment notwithstanding the verdict to be used when a motion for directed verdict does not end a trial and it proceeds to verdict. It is narrow, however, and does not permit reopening the case for new legal issues which are thought of retrospectively, with hindsight. [Rather,] [i]t provides ... a post-verdict opportunity for a determination of the legal questions raised by the motion for a directed verdict. If upon reflection the trial judge determines that the motion for directed verdict was valid, the judge is to set aside the verdict and the original judgment and enter a new judgment in accordance with the motion for directed verdict. It is patent, then, that the j.n.o.v. must be based on grounds raised in the motion for directed verdict initially, for it is in effect only a new ruling on a renewed motion.

(Citation omitted.) James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia Svcs. , 272 Ga. App. 232, 234 (1), 612 S.E.2d 17 (2005). It follows that "arguments asserted in a motion for j.n.o.v. but not raised in the motion for directed verdict cannot be considered on appeal." (Citation omitted.) Id. at 235 (1), 612 S.E.2d 17.

The record shows that although Khalia moved for a directed verdict on grounds including, in passing, that there was no evidence to support a finding that it breached the standard of care due to Rosebud as a licensee, the trial court did not grant the motion on this basis. Instead, the trial court granted the motion on the ground that Rosebud was a licensee. The record also shows that Khalia did not ask for clarification of or object to the trial court’s ruling, which effectively granted its motion in part and denied it in part; instead, Khalia remained silent during the extended discussion of the applicable standard of care, including the framing of a jury charge on the issue and objections from Rosebud, and did not object to the charge when or after it was delivered. The issues of Rosebud’s status as licensee and the applicable standard of care having been resolved in Khalia’s favor below, there is nothing for us to review on appeal. See Moody v. Dykes , 269 Ga. 217, 219-220 (3), 496 S.E.2d 907 (1998) (induced error based on the acquiescence of counsel in the giving of a charge provides no ground for reversal under OCGA § 5-5-24 (c) ).

(b) Merits of JNOV Motion: Duty and Breach . Even assuming that the issue is not waived, some evidence supported the jury’s determination that Khalia violated that standard of care. Because Rosebud was held to be a licensee, as to which holding no error has been asserted, Khalia can be liable only for its "willful and wanton" act or omission. OCGA § 51-3-2 (b). As we have often explained,

"it is usually wil[l]ful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a ... hidden peril on one’s premises. Thus, as to a licensee, ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated."

(Punctuation omitted.)

Cooper v. Corporate Property Investors , 220 Ga. App. 889, 891, 470 S.E.2d 689 (1996), quoting Wade v. Mitchell , 206 Ga. App. 265, 267 (2) (c), 424 S.E.2d 810 (1992) (emphasis in Wade ). In such cases, a possessor of land is liable for harm caused to a licensee

if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved[.]

Cooper , 220 Ga. App. at 891, 470 S.E.2d 689, quoting London Iron, etc. Co. v. Abney , 245 Ga. 759, 761 (2), 267 S.E.2d 214 (1980). As always, the test for liability "is the proprietor’s superior knowledge of the hazard." (Citation omitted.) Cooper , 220 Ga. App. at 891, 470 S.E.2d 689.

As a preliminary matter, we note that no error has been asserted as to the trial court’s admission of evidence concerning at least two prior shootings on the 490 Fairburn property, one of which occurred only three days before the incident at issue. See Camelot Club Condo. Assoc. v. Afari-Opoku , 340 Ga. App. 618, 621, 623 (1) (a), 798 S.E.2d 241 (2017) (given that "[t]he question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts" and that a crime "does not have to originate on [a] landowner’s property in order to hold the owner liable"...