Matt v. Days Inns of America, Inc.

• Decision Date: 18 March 1994
• Docket Number: No. A93A2393,A93A2393
• Citation: 443 S.E.2d 290,212 Ga.App. 792
• Parties: MATT et al. v. DAYS INNS OF AMERICA, INC.
• Court: Georgia Court of Appeals

Page 290

443 S.E.2d 290

212 Ga.App. 792

MATT et al. v. DAYS INNS OF AMERICA, INC.

No. A93A2393.

Court of Appeals of Georgia.

March 18, 1994.

Reconsideration Denied April 1, 1994.

Certiorari Granted June 27, 1994.

Bauer & Deitch, Craig T. Jones, Atlanta, for appellants.

Hicks, Casey & Young, William T. Casey, Jr., Marietta, for appellee.

BIRDSONG, Presiding Judge.

Richard and Kellee Matt appeal the grant of summary judgment to Days Inns of America, Inc. The Matts sued Days Inns for damages sustained after Richard Matt was shot in a robbery attempt at the Atlanta Airport Days Inn. The Matts contended that Days Inns' negligence was the proximate cause of Richard Matt's injuries because it failed to provide adequate security and failed to take reasonable precautions to protect him from reasonably foreseeable criminal acts of third persons.

Subsequently, Days Inns moved for summary judgment contending that it was not liable as Richard Matt's injuries were caused by the unforeseeable criminal conduct of a third person. More specifically, Days Inns asserted that although there had been crimes against property in this parking lot and two robberies by force sometime earlier, there had been no substantially similar armed robbery on its premises which would give notice of the possible occurrence of the kind of event that caused Richard Matt's injuries. Ultimately, the trial court granted Days Inns' motion for summary judgment because it found Days Inns had established that there was no genuine issue of material fact on the issue of foreseeability.

The Matts contend that the trial court erred because they introduced evidence that there were 82 crimes committed at the hotel in the three years preceding the attack on Richard Matt. The records show that one robbery occurred in a guest room and 81 other crimes were committed in this Days Inn's parking lot, including one purse snatching one year prior and a robbery by force without the use of a weapon some three years earlier.

In addition, the Matts introduced evidence showing that there are three other airport hotels within a one-quarter mile radius of the Days Inn, and that at one hotel there were 184 parking lot crimes, including five armed robberies, one strong-arm robbery, two rapes, ten assaults, and one kidnapping; another of the hotels had 257 parking lot crimes, including four armed robberies, one strong-arm robbery, one rape, and 26 assaults; and at the other hotel, three total parking lot crimes including two assaults and one kidnapping. The evidence showed that Days Inns' procedures required that it monitor criminal activity within the area of each Days Inn and adapt its crime prevention plan accordingly.

After their marriage in another state the day before, the Matts drove to Atlanta and, upon their travel agent's recommendation, checked into the Days Inn with plans to take a honeymoon flight to Mexico very early the next morning. The evidence showed that the Matts had never spent the night in an Atlanta hotel before.

The evidence presented showed the shooting occurred in the early morning hours in the first row of cars parked very near the front door of the Inn and that a security guard was seated in a vehicle some 40-50 feet from the place of the shooting. The security guard saw the crime taking place and notified the front desk to call the police because a robbery was in progress.

Testimony from the security guard and Richard Matt showed that the robbery attempt happened very quickly. While Richard Matt opened the trunk of his car to remove some luggage, another car came up behind him. When someone in the car demanded Matt's wallet and Matt did not comply immediately, he was shot. The car then sped away.

The Matts contend that Days Inns failed to exercise its responsibility to protect them on its premises, and that under Days Inns' security procedures, the guard should not have been seated in the car, but should have been patrolling the premises. Further, an expert witness for the Matts, a former chief of security for Days Inns, testified that under the facts known to Days Inns prior to the shooting, a crime such as the one which resulted in the injury to Richard Matt was foreseeable. The trial court found, however, that for criminal activity to be foreseeable, there must have been previous substantially similar criminal acts, and that the "test of 'substantial similarity' is stringent and is met only where the injured party can demonstrate that the prior criminal acts took place in a like manner and under similar conditions as the criminal act in issue." The trial court found that the previous criminal activity at the Days Inn was not substantially similar under this test and, consequently, granted summary judgment. The Matts appeal under OCGA § 9-11-56(h). Held:

Under our law, Days Inns has an obligation as an innkeeper to exercise ordinary care to keep its premises safe for its guests. OCGA § 51-3-1; Davis v. Garden Svcs., 155 Ga.App. 34, 270 S.E.2d 228. Days Inns, however, relies upon Savannah College of Art, etc., v. Roe, 261 Ga. 764, 409 S.E.2d 848 and Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474, for the propositions that before a landowner may be liable for a third party's criminal act there must have been at least one prior substantially similar incident, and further the fact that a security guard is present does not increase the standard of care.

Although an innkeeper is not an insurer of the safety of the guests, it is bound to exercise ordinary care to protect its guests from unreasonable risks of which the innkeeper has superior knowledge, and if an innkeeper has reason to anticipate criminal acts, it has the duty to exercise ordinary care to guard against injury caused by dangerous characters. Lau's Corp., supra at 492, 405 S.E.2d 474. "[O]rdinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances." OCGA § 51-1-2. "Exactly what constitutes 'ordinary care' varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm." (Citations and punctuation omitted.) Lau's Corp., supra at 493, 405 S.E.2d 474. The Matts, however, may not rely upon Richard Matt's injuries as evidence that Days Inns failed to take reasonable steps to protect him, but must present facts from which a jury could conclude that Days Inns failed to take reasonable measures to protect him against injury. Lau's Corp., supra at 494, 405 S.E.2d 474.

Additionally, the Matts produced evidence from Days Inn's security guard that he did not feel safe patrolling the premises and prior to Matt's shooting had requested permission to carry a weapon, wear a bullet-proof vest, and carry a portable telephone and had also requested that a gate controlling access to the parking lot be installed. Further, there is evidence that a Days Inns security audit conducted some years prior to the Matt shooting had recommended increased security patrols in the parking lot.

Knowledge that the premises subjected its guests to an unreasonable risk of criminal attack is a prerequisite to recovery under OCGA § 51-3-1 and such knowledge may be demonstrated by evidence of the occurrence of prior substantially similar incidents. Savannah College of Art, supra 261 Ga. at 765, 409 S.E.2d 848. Moreover, under Lau's Corp., supra 261 Ga. at 493, 405 S.E.2d 474, evidence of criminal activity in the area in which the hotel is located may be considered on this issue.

Therefore, the question is whether the prior robberies by force in the Days Inn parking lot are substantially similar to the armed robbery in which Richard Matt was shot. In this sense, substantially similar does not mean identical, and it is not a question whether a weapon was used, but whether the prior crimes should have put an ordinarily prudent person on notice that the hotel's guests were facing increased risks. "All that is required is that the prior [incident] be sufficient to attract the [hotel's] attention to the dangerous condition which resulted in the litigated [incident]." Pembrook Mgmt. v. Cossaboon, 157 Ga.App. 675, 677, 278 S.E.2d 100.

Judge Andrews' dissent proposes adoption of a too narrow definition of "prior substantially similar incidents." Savannah College of Art, supra 261 Ga. at 765, 409 S.E.2d 848. Under the dissent's definition of the term, not only must the prior incident be the same crime, but the means of inflicting injury must be identical. That is not our law. As may be seen from our Supreme Court's citations to earlier decisions of this court, Savannah College of Art did not announce a new or more restrictive standard in these cases. See Nalle v. Quality Inn, 183 Ga.App. 119, 120, 358 S.E.2d 281; Washington Rd. Properties v. Stark, 178 Ga.App. 180, 181, 342 S.E.2d 327; McCoy v. Gay, 165 Ga.App. 590, 591, 302 S.E.2d 130; McClendon v. Citizens, etc., Nat. Bank, 155 Ga.App. 755, 756, 272 S.E.2d 592. Savannah College of Art, supra 261 Ga. at 765, 409 S.E.2d 848. Thus, the test is whether the prior criminal activity was sufficiently substantially similar to demonstrate the landowner's knowledge that conditions on his property subjected his invitees to unreasonable risk of criminal attack so that the landowner had reasonable grounds to apprehend that the present criminal act was foreseeable. The test proposed by the dissent, however, is in application a "free bite" analysis that is not supported by Savannah College of Art or any other precedent in this state.

Consequently, it cannot merely be stated that because none of the prior offenses at the Days Inn was an armed robbery with a firearm that none of the events were...