Pappas Rest., Inc. v. Welch

• Decision Date: 14 December 2021
• Docket Number: A21A1341, A21A1342
• Citation: 867 S.E.2d 155,362 Ga.App. 152
• Parties: PAPPAS RESTAURANT, INC. v. WELCH et al. Tactical Security Group, LLC v. Welch et al.
• Court: Georgia Court of Appeals

362 Ga.App. 152

867 S.E.2d 155

PAPPAS RESTAURANT, INC.

v.WELCH et al.

Tactical Security Group, LLC

v.Welch et al.

A21A1341, A21A1342

Court of Appeals of Georgia.

December 14, 2021

Nicole Christine Leet, Laurie Webb Daniel, Michael J. Rust, Nicholas Robert Boyd, Atlanta, for Appellant in A21A1341.

Warner S. Fox, Christine Lupo Mast, Atlanta, Robert B Gilbreath Esq., Elliott Crawford Ream, Atlanta, for Appellant in A21A1342.

Edward M. Wynn, James Nicholas Sadd, Atlanta, Aleksandra H. Bronsted, Atlanta, for Appellee.

Markle, Judge.

After Cynthia Welch was injured and her husband Anthony was killed in a shooting in the parking lot of Pappadeaux Restaurant, she sued Pappas Restaurant Group, which owned the property, and Tactical Security Group, LLC, which provided the on-site security guards.¹ The trial court denied Pappas's and Tactical's motions for summary judgment, and certified its order for immediate review. We granted the interlocutory applications, and these appeals followed. After a thorough review of the record, and with the benefit of oral argument, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Little-Thomas v. Select Specialty Hosp.-Augusta , 333 Ga. App. 362, 363, 773 S.E.2d 480 (2015).

So viewed, the record shows that Pappas owns Pappadeaux and another restaurant on the same property on Windy Hill Road, with parking lots for each and a lower lot for overflow parking. The parking lots are well-lit, and there are surveillance cameras throughout the area. To patrol the grounds, Pappas hired Tactical to provide unarmed, uniformed security guards to deter crime such as automobile break-ins and loitering, and to assist with traffic issues. On Friday nights, two guards were assigned to patrol the lots, and a third guard was stationed in the fire lane in front of Pappadeaux to monitor traffic. The guards patrolled the lots on foot or in marked security cars with flashing lights.

On Friday, October 7, 2016, Welch and her husband went to dinner at Pappadeaux and parked in the lower lot. Because the restaurants were extremely crowded that night, with customers waiting over an hour to be seated, there were many people in the parking lot area. Although there were three guards on site most of that evening, one guard left at 10 p.m. After that, one of Tactical's guards patrolled the parking lot while the second guard remained stationed in the fire lane. Shortly after 10 p.m., as the Welches walked through the parking lot back to their car, a man stepped in front of them, demanded their belongings, and then shot both of them. Anthony was killed. The shooter and his accomplices were later captured and convicted of murder.

Security footage from the surveillance cameras showed the assailants driving into the lot shortly after 10 p.m. and lingering around their car before the attack. The footage also confirms that, 60 seconds before the shooting, a guard in a marked security vehicle with the lights flashing patrolled the area where the assailants were lingering and where the attack would occur moments later.

Cynthia Welch sued Pappas and Tactical for premises liability, negligence, and wrongful death.² Pappas and Tactical moved for summary judgment, which the trial court denied. We granted the applications for interlocutory review, and these appeals followed.

Case No. A21A1341

1. In this appeal, Pappas contends that the trial court erred in denying its summary judgment motion because Welch failed to show that there were substantially similar crimes that made the instant attack foreseeable. It further asserts that the trial court erred in relying on expert testimony because the expert stated outright that he had no opinion on foreseeability. We agree that Pappas was entitled to summary judgment.

Under Georgia law, to state a claim for negligence,

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.

(Citation omitted.) Brown v. All-Tech Investment Group , 265 Ga. App. 889, 893 (1), 595 S.E.2d 517 (2003). In Georgia, it is well settled that a proprietor owes its invitees a duty "to exercise ordinary care in keeping the premises and approaches safe."³

OCGA § 51-3-1. But, "the landowner is not an insurer of an invitee's safety. An intervening criminal act by a third party generally insulates a landowner from liability unless such criminal act was reasonably foreseeable." (Citation omitted.) Rautenberg v. Pope , 351 Ga. App. 503, 505 (1), 831 S.E.2d 209 (2019).

Our case law has set forth the way in which a plaintiff can show that the criminal activity was foreseeable. First, a plaintiff may point to previous crimes that are substantially similar to the one at issue. As our Supreme Court explained,

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. Accordingly, the incident causing the injury must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers ... against the risk posed by that type of activity.

(Citations and punctuation omitted.) Sturbridge Partners v. Walker , 267 Ga. 785, 786, 482 S.E.2d 339 (1997) ; see also River Place at Port Royal Condo. Assn. v. Sapp , 358 Ga. App. 632, 634-635, 856 S.E.2d 28 (2021) ; Doe v. Prudential-Bache/A. G. Spanos Realty Partners , 268 Ga. 604, 605, 492 S.E.2d 865 (1997) ; Rautenberg , 351 Ga. App. at 505 (1), 831 S.E.2d 209.

In the absence of a substantially similar prior crime, a plaintiff can show foreseeability and avoid summary judgment by proffering other evidence that the proprietor knew of the danger. See Med. Center Hosp. Auth. v. Cavender , 331 Ga. App. 469, 480 (6), n. 13, 771 S.E.2d 153 (2015) ; see also Piggly Wiggly Southern v. Snowden , 219 Ga. App. 148, 149 (1) (b), 464 S.E.2d 220 (1995) (crime foreseeable where property owner knew of danger); Matt v. Days Inns of America , 212 Ga. App. 792, 795, 443 S.E.2d 290 (1994) (numerous crimes in hotel parking lot, as well as in surrounding areas, many of which were violent crimes, raised question for jury on issue of foreseeability). The touchstone of the inquiry is whether the defendant had knowledge of the risk of criminal activity. Piggly Wiggly Southern , 219 Ga. App. at 149 (1) (b), 464 S.E.2d 220. Nevertheless, there remains no "duty to anticipate unlikely, remote, or slightly possible events." (Citation omitted.) Traicoff v. Withers , 247 Ga. App. 428, 430, 544 S.E.2d 177 (2000).

Here, the trial court focused on evidence of the frequency of prior property crimes, and it relied on e-mails from Pappas's employees and expert testimony proffered by Welch. We consider whether this evidence creates a factual question under these methods of establishing foreseeability, concluding that it does not.

(a) Substantially similar crimes.

In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the [proprietor's] attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury's determination rather than summary adjudication by the courts.

(Citations and punctuation omitted.) Sturbridge Partners , 267 Ga. at 786, 482 S.E.2d 339 ; see also Rautenberg , 351 Ga. App. at 505 (1), 831 S.E.2d 209 ; Cavender , 331 Ga. App. at 475 (1) (a), 771 S.E.2d 153 ("Foreseeable consequences are those which, because they happen so frequently, may be expected to happen again.") (citation and punctuation omitted; emphasis in original).

To establish foreseeability based on similar crimes, Welch submitted police reports, testimony of Pappas's and Tactical's representatives, and the opinion of a security expert. However, none of this evidence is sufficient to create a factual question on foreseeability.

First, Welch submitted evidence of police reports detailing automobile break-ins and thefts on the property from 2011 through 2016, and e-mails between Pappas and Tactical about crime in the general area. It is undisputed that Pappas knew that there were a large number of break-ins in its lot prior to the shooting. It is also undisputed that the police gave Pappas's representative a copy of the 2014 crime reports when they met with Pappas that year to discuss the property crime in their lot. However, there is no evidence in the record to show that Pappas was aware of the police reports from 2015 and 2016 that Welch submitted to establish foreseeability.⁴ Nor was there evidence that Pappas was aware of any crimes occurring on their lot in 2015 and 2016, other than the...