McCoy v. Gay

• Decision Date: 02 March 1983
• Docket Number: No. 65117,65117
• Citation: 165 Ga.App. 590,302 S.E.2d 130
• Parties: McCOY v. GAY et al.
• Court: Georgia Court of Appeals

Page 130

302 S.E.2d 130

165 Ga.App. 590

McCOY v. GAY et al.

No. 65117.

Court of Appeals of Georgia.

March 2, 1983.

Adie N. Durden, Jr., Joe S. Champion, Harry L. Wingate, Jr., Albany, for appellant.

Thomas S. Chambless, Albany, for appellees.

CARLEY, Judge.

Appellee-defendants are the owners of the Downtowner Motor Inn (Inn) in Albany, Georgia. The Inn provided, at the time in question, personal security for its patrons through the employment of a single guard, who apparently made periodic patrols about the premises. Appellant-plaintiff was, on the date in question, a patron of the Inn's cocktail lounge but not a guest in the Inn itself. After having several drinks, appellant left the lounge in the early morning hours to return to his car which was located in one of the Inn's lighted parking lots. While in the lot, appellant was attacked and robbed by an unknown assailant who was armed with a weapon. He sustained severe physical injuries as the result of the attack. At the time of the assault on appellant, the Inn's security guard was not patrolling the parking lot but was in the Inn itself. Appellant subsequently instituted the instant tort action, alleging that appellees "were negligent, jointly and severally, in not controlling and maintaining their business premises in a safe and adequate manner for the protection of their invitees, customers and patrons." The case proceeded to trial, where, at the close of appellant's evidence, appellees moved for a directed verdict. Appellees' motion was granted and appellant appeals.

Appellant's action is predicated upon OCGA § 51-3-1 (Code Ann. § 105-401): "Where an owner or occupier of land, by express or implied invitation, induces or leads another to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." Under this statute, "[t]he true ground of liability of the owner of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. [Cits.]" Pound v. Augusta Nat., 158 Ga.App. 166, 167-168, 279 S.E.2d 342 (1981).

Appellant asserts that, as the result of "poor" lighting and the absence of a full-time security guard, the Inn's parking lot where he was injured was a "defective condition" which subjected him to the unreasonable risk of harm from criminal assault. "[O]ne is not ordinarily charged with the duty of anticipating acts mala per se, but there are exceptions to this rule..." Pittman v. Staples, 95 Ga.App. 187, 191, 97 S.E.2d 630 (1957). " 'It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence.' [Cit.] Ordinarily, even where the proprietor's negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. [Cit.] 'However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed.' [Cit.]" McClendon v. C & S Nat. Bank, 155 Ga.App. 755, 756, 272 S.E.2d 592 (1980).

The burden of proof was on appellant, as plaintiff, to demonstrate appellee's knowledge that the parking lot subjected invitees to the unreasonable risk of criminal attacks. "Knowledge by the owner or 'occupier' or his employee of the dangerous condition created by a third person is a prerequisite to recovery under [OCGA § 51-3-1 (Code Ann. § 105-401) ]. [Cits.]" Holiday Inns. v. Newton, 157 Ga.App. 436, 437, 278 S.E.2d 85 (1981). Appellant attempted to meet this burden by showing the occurrence of two prior crimes at the Inn. "Where evidence of a prior similar accident tends to show condition and knowledge of that condition, the evidence is admissible. [Cits.] All that is required is that the prior accident be sufficient to attract the owner's attention to the dangerous condition which resulted in the litigated accident. [Cit.]" (Emphasis supplied.) Pembrook Mgt. v. Cossaboon, 157 Ga.App. 675, 677, 278 S.E.2d 100 (1981). The first previous crime shown to have occurred at the Inn was a purse snatching which had taken place the year before appellant was assaulted. The second was a robbery of two guests of the Inn, accomplished through physical violence but without the use of weapons, occurring some three years prior to the attack on appellant.

"While the relevancy of other occurrences is ordinarily within the sound discretion of the court, 'it is necessary that the conditions of the things compared be substantially similar.' [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court's discretion can operate. [Cits.]" Carlton Co. v. Poss, 124 Ga.App. 154, 155, 183 S.E.2d 231 (1971), aff'd 228 Ga. 402, 185 S.E.2d 803 (1971). It is undisputed that both prior crimes took place at locations in the Inn other than the parking lot where appellant was attacked. The purse snatching occurred, according to the testimony of the victim, "as [she] was going through the door of the [Inn]..." The other robbery occurred as the victims had started up "a large open stairway on the outside of the [Inn going] up to a balcony that runs along the room[s] upstairs..." Accordingly, both prior crimes occurred at or in close proximity to the actual guest facilities provided by the Inn. The "poorly" lit and unpatrolled parking lot where appellant was assaulted--the alleged "dangerous" condition in the instant case--was, on the other hand, on the periphery of the premises some distance from the actual Inn facility itself. " ' "Generally, it may be said that it is not permissible, for the purpose of establishing whether a condition at one place is dangerous to show conditions at places other than the one in question..." [Cit.]' [Cit.]" MARTA v. Tuck, 163 Ga.App. 132, 138, 292 S.E.2d 878 (1982). Accordingly, proof of the two prior crimes at a location on the Inn's premises other than the asserted "dangerous" parking lot would have no relevancy or probative value with regard to appellees' knowledge of that "dangerous condition." "Notice of one defect or of one fact is not notice of another wholly unconnected...