Norby v. Heritage Bank

• Decision Date: 20 March 2007
• Docket Number: No. A06A2448.,A06A2448.
• Citation: Norby v. Heritage Bank, 644 S.E.2d 185, 284 Ga.App. 360 (Ga. App. 2007)
• Parties: NORBY et al. v. The HERITAGE BANK.
• Court: Georgia Court of Appeals

284 Ga. App. 360

644 S.E.2d 185

NORBY et al. v. The HERITAGE BANK.

No. A06A2448.

Court of Appeals of Georgia.

March 20, 2007.

C. James McCallar Jr., Savannah, for appellant.

John T. Croley Jr., Fitzgerald, for appellee.

PHIPPS, Judge.

Susan Norby, as administratrix of the estate of Michael Norby and individually as his widow, brought this wrongful death action against The Heritage Bank after he was murdered as he was attempting to use a night deposit box on the bank's premises. The superior court granted the bank's motion for summary judgment. Finding a lack of similarity between prior crimes committed on the premises of the bank and the decedent's murder, the court ruled that the latter incident was not reasonably foreseeable by the bank. Norby appeals. Under the right for any reason rule, we affirm.

On the evening of November 21, 2002, Michael Norby went to The Heritage Bank in Midway, Georgia, to deposit a personal check in the night deposit box. The night deposit box and an automated teller machine (ATM) were located under a canopy at the rear of the bank facing a wooded area. Unbeknownst to Norby, four persons had concealed themselves in the area of the night deposit box awaiting the arrival of the manager of a store known as the Dollar Tree. When Norby appeared at the night deposit box, they mistook him for their intended victim and shot him instead. One of his assailants provided an affidavit in which he attributed their ability to conceal themselves, as well as their misidentification of the intended victim, to the poor lighting in the area of the night deposit box.

Commission of two prior crimes at the bank are shown by the record. The first was on February 13, 2002, when someone armed with a weapon entered the bank in the morning while the bank was open and took a substantial amount of money. After that armed robbery, surveillance cameras were placed in the drive-in area and in other locations in and around the bank. The second crime was on May 5, 2002, when someone attempted unsuccessfully to break into the ATM late at night when the bank was closed.

Susan Norby charged the bank with common law negligence in having inadequate lighting, in locating the night deposit box at the rear of the bank away from the adjacent public road, and in allowing foliage to grow in such a manner that the assailants could conceal themselves from customers who approached the area of the night deposit box. And, as in Deese v. NationsBank of Ga.,¹ Norby also charged the bank with negligence per se by having violated federal regulations requiring federally insured banks to adopt security systems, devices, and procedures to discourage crimes such as robberies and burglaries.

In reviewing a grant of summary judgment pursuant to Lau's Corp. v. Haskins,² we conduct a de novo review of the law and the evidence,³ giving the opposing party the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.⁴ If a defendant who does not bear the burden of proof at trial demonstrates that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case, the burden shifts to the nonmoving party to point out specific evidence giving rise to a triable issue.⁵

To state a cause of action for negligence under Georgia law, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.⁶

Under OCGA § 51-3-1, "[a] proprietor's duty to invitees is to `exercise ordinary care in keeping the premises and approaches safe.'"⁷ A proprietor is not, however, the insurer of the invitee's safety.⁸ Ordinarily, therefore, a proprietor is "insulated from liability by the intervention of an illegal act which is the proximate cause of the injury," unless the proprietor "had reasonable grounds for apprehending that such criminal act would be committed."⁹ "If the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters."¹⁰ Stated another way, "[i]n order for a plaintiff to prevail against a proprietor for injuries incurred as the result of a criminal act committed by a third party on the proprietor's premises, a plaintiff must first show that the criminal act was reasonably foreseeable."¹¹ It has also been recognized that under OCGA § 51-3-1, "(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."¹² Knowledge that the premises subjected its guests to an unreasonable risk of criminal attack may be demonstrated by evidence of the occurrence of "prior substantially similar incidents."¹³

In McClendon v. C & S Nat. Bank,¹⁴ a bank customer who had been robbed in the bank's parking lot sued the bank for failure to exercise reasonable care for her safety. Affirming the trial court's grant of the bank's motion for directed verdict, we held that prior instances of possible criminal activity inside the bank, as shown by numerous alarms to police, did not give the bank reasonable grounds for apprehending a dangerous situation in the parking lot.

Similarly, in McCoy v. Gay,¹⁵ we held that proof of a purse snatching and weaponless robbery through physical violence in areas of a motor inn removed from the parking lot did not provide the owners of the motor inn with knowledge of the risk that an armed robbery would be committed as a result of poor lighting and the absence of a security guard in the parking lot. Therefore, as in McClendon, we affirmed the trial court's grant of a directed verdict to the defense.

In Lau's Corp.,¹⁶ however, where the plaintiffs were robbed in the parking lot adjoining a restaurant, our Supreme Court held that evidence that the proprietor of the restaurant knew about one previous purse snatching in the parking lot, and that his business was located in a "high crime" area, was minimally sufficient to give rise to triable issues whether the proprietor had a duty to exercise ordinary care to guard his patrons against the risk posed by criminal activity in the parking lot.

In Savannah College of Art & Design v. Roe,¹⁷ the plaintiffs were students who were sexually attacked by an unknown intruder while they were living in a dormitory. Our Supreme Court held that evidence that the college was located in an urban environment—and that it had received reports of two instances of "peeping Toms" at the dormitory, that a vagrant and an intoxicated person had been removed from the dormitory, that a student had surprised a burglar, and that petty thefts had occurred—was collectively insufficient to create a factual issue whether the college knew or should have known that its dormitory residents were at risk of violent criminal sexual attack. The Court concluded that the extrinsic evidence was irrelevant because none of the other incidents was substantially similar to the sexual assaults which were the bases of the litigation.

In Matt v. Days Inns of America,¹⁸ however, where the plaintiff was shot in a robbery attempt in a parking lot at the Atlanta Airport Days Inn, we held that the record of numerous armed robberies and other serious crimes of violence against persons in the parking lots of nearby hotels—when coupled with the record of the prior robbery of a guest inside a room at the Airport Days Inn, and numerous other crimes such as a purse snatching and robbery by force in the parking lot—presented a genuine issue of material fact whether the crime in that case was reasonably foreseeable. We refused to hold that the prior offenses lacked substantial similarity to the attempted robbery and shooting of the plaintiff. We explained that

[t]o reach that result would require the conclusion that a hotel somehow would safeguard its guests differently to protect them from robberies by force and violence than from armed robberies, or protect them differently from armed robbers with firearms than those with knives, or protect guests differently from assaults than from armed robberies.¹⁹

Sun Trust Banks v. Killebrew²⁰ was quite similar to this case, in that the plaintiff there was shot by a robber at the bank's parking lot after using an ATM at night. Five months earlier, another customer using the same ATM at night had been accosted in the parking lot by an assailant who threatened the customer with bodily harm. But because that crime had not been reported to the bank, our Supreme Court held that the bank was not chargeable with knowledge of it. In a concurring opinion, however, then Justice Sears suggested that the well-known dangers attendant to bank customers' use of ATMs— particularly where, as in Killebrew, the ATM was located on the side of the bank and was not well lit—created a factual issue regarding whether the bank could have anticipated criminal activity at the ATM.

On remand in Killebrew, this court, in reliance on then Justice Sears' concurrence, held that the grant of summary judgment to the bank based on lack of foreseeability was improper.²¹ We recognized, however, that the analysis did not end there because

[o]nce the plaintiff in a premises liability case clears the proximate cause hurdle, he still must show that the landowner had a duty to protect him, and the existence of a duty depends not just on foreseeability, but on superior knowledge. If a criminal act is not foreseeable, it logically follows that the landowner does not have superior...