Rice v. Six Flags Over Georgia, LLC

• Decision Date: 27 September 2002
• Docket Number: No. A02A2142.,A02A2142.
• Citation: 572 S.E.2d 322,257 Ga. App. 864
• Court: Georgia Court of Appeals
• Parties: RICE et al. v. SIX FLAGS OVER GEORGIA, LLC et al.

572 S.E.2d 322

257 Ga. App. 864

RICE et al. v. SIX FLAGS OVER GEORGIA, LLC et al.

No. A02A2142.

Court of Appeals of Georgia.

September 27, 2002.

Reconsideration Denied October 11, 2002.

Certiorari Denied January 27, 2003.

George H. Connell, Jr., Atlanta, for appellants.

Drew, Eckl & Farnham, John P. Reale, Atlanta, Brandon M. Rhodes, Ponte Verdra Beach, for appellees. ELDRIDGE, Judge.

Appellants-plaintiffs Brittani Rice, a minor, and William D. Rice, her father, and William D. Rice, individually, appeal from the State Court of Gwinnett County's grant of summary judgment to appellees-defendants Six Flags Over Georgia, LLC ("SFG LLC") and Six Flags Over Georgia II, LP ("SFG II"). The Rices filed a premises liability action against the appellees after Brittani Rice, then 14, reported that she had been "sexually molested"¹ while riding the Ninja roller coaster ride at Six Flags Over Georgia, an amusement park located in Cobb County ("Six Flags Park" or "Park"). The complaint, twice amended, alleged that the appellees failed to exercise ordinary care to provide adequate security for the protection of business invitees. The Rices appeal enumerating that the state court erred in granting summary judgment to appellees upon the standard of care owing in a premises liability case rather than that owing in the care of a child of tender age. In the alternative, the Rices argue that, even if entered upon the proper standard of care, summary judgment for appellees nonetheless was error because genuine issues of material fact remain as to whether the appellees had a duty to exercise ordinary care for the foreseeability of the criminal attack; had a duty to warn; maintained a nuisance by providing inadequate security; and were negligent per se for violation of Georgia Department of Labor Rule 300-8-1-.08(8). Finding the Rices' claims to be without merit, we affirm. Held:

[T]his Court reviews the grant of summary judgment de novo to determine whether any genuine issue of material fact exists for resolution by jury. Moore v. Food Assoc., 210 Ga.App. 780, 781, 437 S.E.2d 832 (1993). Summary judgment is proper where the moving party is able to show that no genuine issue of material fact exists and that the movant is entitled to summary judgment as a matter of law. OCGA § 9-11-56(c). A defendant meets this burden by "showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... All of the other disputes of fact are rendered immaterial." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

Williams v. Truett, 251 Ga.App. 46-47, 553 S.E.2d 350 (2001). Construed in the light most favorable to Rice and his daughter as nonmovants, Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997), the record shows that shortly before leaving Six Flags Park on July 5, 1999, Brittani and three girlfriends, one age 14 and two age 12, decided to ride the Ninja as a final ride for the day. Overhearing the girls debating whether there was enough time to stand in line for the Ninja and still meet their ride in the parking lot, four unknown males offered to let them get in line in front of them. The girls accepted, although cutting in line in this manner violated a posted Park rule. Within minutes, one of four unknown males, whom Brittani described as in his late thirties, informed her that she was going to ride with him, pulling her by the arm and putting her in line in front of him. Although she was fearful, Brittani declined the offer of the person in front of her to let her out of line believing that two of her group would be unable to do so because of crowding. All then proceeded in line, ultimately boarding the two seat cars of the Ninja without seeking the assistance of Park staff which was present, identifiable, and accessible. Brittani was sexually attacked during the ride and first reported the incident three days later to a female Park security officer who, in turn, relayed the complaint to the police.

Appellees supported their motion for summary judgment by, among other things, the deposition testimony SFG II's Security and Risk Manager, Bradford W. Porter. Porter deposed that SFG II acquired Six Flags Park in 1998 and that it had been the sole owner and operator of the property from that time forward, inclusive of the date of the incident. The Rices opposed summary judgment on this issue below, as they do on appeal, citing Time Warner Entertainment Co., v. Six Flags Over Ga., 245 Ga.App. 334, 335, 537 S.E.2d 397 (2000), as evidencing an ownership interest in SFG LLC as to Six Flags Park at the time in issue. Even if Time Warner set out such an ownership interest as fact (and it does not),² used as evidence rather than as legal precedent, Time Warner amounted to no more than hearsay in opposition to summary judgment. Hearsay not within a recognized exception to the rule, as here, is inadmissible on motion for summary judgment. Barich v. Cracker Barrel &c., 244 Ga.App. 550, 551(1), 536 S.E.2d 221 (2000). Accordingly, pretermitting whether the state court's grant of summary judgment was error as to Six Flags LLC for failure to employ the standard of care owing to a child of tender years, the state court, as a matter of law, properly entered summary judgment for Six Flags LLC for lack of an ownership interest in the property at the time of the incident. "An action [in] tort shall be brought against the party committing the injury, either by himself, his servant, or an agent in his employ." OCGA § 9-2-21(b); compare Barber v. Adams, 145 Ga.App. 627, n. 1, 244 S.E.2d 149 (1978) (subsequent vendees having no legal or equitable interest in property at time alleged negligent act occurred not parties to tort action under OCGA § 9-2-21).

Neither did the state court err in granting summary judgment to the appellees, as a matter of law, upon the Rices' claim that this is a case involving a child of tender years. It is undisputed in the record that Brittani Rice was approximately fourteen years, nine months old at the time of the alleged incident, July 5, 1999. Such person is not a "child of tender years." Sayed v. Azizullah, 238 Ga.App. 642, 644, 519 S.E.2d 732 (1999), citing Biggs v. Brannon Square Assoc., 174 Ga.App. 13, 17(2), 329 S.E.2d 239 (1985). Further, if a case is to lie as to the negligent supervision of a child of tender years, there must be a showing that the supervision of such child was affirmatively undertaken. Bull Street Church of Christ v. Jensen, 233 Ga.App. 96, 99(1), 504 S.E.2d 1 (1998); Wallace v. Boys Club of Albany, 211 Ga.App. 534, 535(1), 439 S.E.2d 746 (1993). The Rices do not aver such an undertaking. There is no evidence of same.

In the context of premises liability, the Rices rely on four similar criminal acts as imposing a duty of care on appellees in the instant action. Generally, in circumstances "`where the (property owner'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.]" Aldridge v. Tillman, 237 Ga.App. 600, 603(2), 516 S.E.2d 303 (1999). Ordinarily, "[a]n intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury thus breaking the causal connection between the defendants' negligence and the injury." (Citation and punctuation omitted.) Alexander v. Sportslife, 232 Ga.App. 538, 540(2), 502 S.E.2d 280 (1998). However, "[i]f 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.' [Cit.]" Lau's Corp. v. Haskins, supra at 492(1), 405 S.E.2d 474; Tucker Fed. Sav. &c. Assn. v. Balogh, 228 Ga.App. 482, 484, 491 S.E.2d 915 (1997). Consequently, if an incident causing injury is to be foreseeable, it "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 or tenants against the risk posed by that type of activity." (Citations omitted.) Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997). The requirement is not that the prior criminal activity be identical to that in issue. Id.; Matt v. Days Inns of America, 212 Ga.App. 792, 794-795, 443 S.E.2d 290 (1994), aff'd, Days Inns of America v. Matt, 265 Ga. 235, 236, 454 S.E.2d 507 (1995). Stated otherwise, a criminal act by a third party may be foreseeable if the incident causing the injury is substantially similar to previous criminal activities occurring on or near the premises at issue in such a way as to...