Sailors v. Esmail Intern., Inc.
| Decision Date | 13 July 1995 |
| Docket Number | No. A95A0114,A95A0114 |
| Citation | 217 Ga.App. 811,459 S.E.2d 465 |
| Parties | SAILORS et al. v. ESMAIL INTERNATIONAL, INC. |
| Court | Georgia Court of Appeals |
McKenney & Froelich, William J. McKenney, Atlanta, for appellants.
Gorby & Reeves, Michael J. Gorby, Martha D. Turner, Atlanta, for appellee.
Plaintiffs, Richard and Angela Sailors, appeal from the judgment rendered by the jury in favor of appellee/defendant Esmail International, Inc., d/b/a Executive Inn, d/b/a Executive Inn-Six Flags, d/b/a Budget Inn-Six Flags, d/b/a Red Carpet Inn, and d/b/a T-Bird's Lounge (Esmail). The Sailorses brought the underlying action to recover damages resulting from injuries Richard Sailors received in an altercation in the parking lot outside T-Bird's Lounge.
The facts construed in the light most favorable to the jury verdict indicate that on the night of the incident, Sailors and two of his friends visited four bars over the course of several hours. At approximately midnight, they left the Buckhead area in Atlanta and drove to T-Bird's Lounge on Fulton Industrial Boulevard. After consuming more beer, Sailors and his friends left the lounge between 2:30 and 3:00 a.m. One of Sailors' friends, Scotty Roberts, urinated in the parking lot which attracted the attention of four passengers in a passing car. The car was driven into the parking lot, and two men got out and began cursing Roberts. Roberts responded with obscenities resulting in a confrontation with the two men. Twice, an independent witness stepped in and persuaded both sides to go their separate ways. However, Roberts made additional obscene comments, after which one of the men opened the car trunk and obtained a pool cue. Sailors, who had been sitting in his truck until this point, joined the group and attempted to defuse the situation but said something derogatory about one of the other men's girl friends. The man holding the pool cue took a swing at Sailors, who wrestled the pool cue away, and chased the men back to their car. Sailors then broke the driver's side window of the car with the pool cue. While Sailors fought with one of the girls who exited the car and attempted to take the pool cue from him, one of the men stabbed Sailors with a knife. At the hospital, Sailors' blood alcohol level was .21, and he was described as combative and hard to restrain by the hospital physician. Expert testimony established that Sailors' blood alcohol level was .24.
1. On appeal, the Sailorses contend the trial court erred in excluding evidence of police incident reports which the court ruled were not substantially similar to the present incident.
(Citations and punctuation omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 492, 405 S.E.2d 474 (1991). See also Days Inns of America v. Matt, 265 Ga. 235, 454 S.E.2d 507 (1995). "In order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the proprietor may be held liable." (Punctuation omitted.) Hunter v. Rouse-Atlanta, Inc., 211 Ga.App. 131(1), 438 S.E.2d 188 (1993). Accord Savannah College of Art, etc. v. Roe, 261 Ga. 764, 409 S.E.2d 848 (1991) ().
In the present case, Sailors was stabbed with a knife after joining an ongoing altercation in the parking lot. The trial court determined that all crimes involving fights or personal injury in the parking lot were substantially similar to the present case and were allowed into evidence. The trial court excluded incidents which occurred in the lounge or the hotel. The trial court did not abuse its discretion in excluding such evidence. See Sparks v. Pine Forest Enterprises, 174 Ga.App. 598, 599, 331 S.E.2d 34 (1985).
The Sailorses assert that because a security guard had been hired, the evidence of "all police incidents" was admissible to show the inadequacy of the security provided. However, "all police incidents" at the inn and lounge were not substantially similar to the mutual combat situation in which the present plaintiff was injured. Furthermore, such a position would place a higher burden on the proprietor who provides some security measures over the proprietor who provides no security. The burden on the proprietor regarding the extent of the security provided is no different than his burden to provide any security as set out in Lau's Corp., supra.
"The rule remains that the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm." (Citation and punctuation omitted.) Howell v. Three Rivers Security, 216 Ga.App. 890, 892, 456 S.E.2d 278 (1995). In Howell, this Court found that any breach of the premises owner's duty toward the plaintiff was not the proximate cause of the plaintiff's injuries due to the plaintiff's superior knowledge of the risks associated with his conduct. Id. The analysis contained in Howell, supra, is even more persuasive in the present circumstances, because of Sailors' voluntary participation. In a case of mutual combat, the superior knowledge must always remain with the combatants, as they, by their voluntary participation, have selected the time, date, and place for the altercation. Any injuries to the combatants resulted from their own conduct and under such circumstances, the existence of prior criminal acts on the premises is irrelevant and cannot form a basis for liability on the premises owner.
The dissent fails to distinguish a mutual combat situation from a case involving an innocent bystander in the use of previous criminal activity evidence involving violence on the premises. Mutual combat exists where there is a fight with dangerous or deadly weapons and when both parties are at fault and are willing to fight because of a sudden quarrel. Langford v. State, 212 Ga. 364, 93 S.E.2d 1 (1956). See OCGA § 16-3-21. In the present case, Sailors voluntarily joined an ongoing altercation and engaged in mutual combat. The proprietor had no duty to protect the plaintiff from himself. In fact, it is the plaintiff who had a duty of ordinary care for his own safety.
As this court has held, in "mutual combat" situations, plaintiff assumed the risk of injury since he "was an active participant in a brawl that left him injured." Driver v. Leicht, 215 Ga.App. 694, 452 S.E.2d 165 (1994). In Driver, under comparable circumstances, we held that even if the hosts were negligent and could be liable to an innocent bystander, they would not be liable to an injured guest who was an initiator or active participant in the brawl resulting in the injury. Id. This same principle applies here, to proprietors and their patrons.
2. In their second enumeration of error, the plaintiffs contend that the trial court erred in allowing the investigating police officer to testify as to conversations he had with witnesses at the scene. The plaintiffs assert that such testimony was hearsay.
After plaintiffs' counsel's hearsay objection, the investigating officer informed the court that although he interviewed the crowd, he found that Randy Askea, Cindy Cooper, Sherree Newell, and Regina Jackson were the most reliable, as they had witnessed the entire incident. Plaintiffs' counsel renewed his hearsay objection as to anything said by Regina Jackson and Cindy Cooper, as they had not testified and were not under subpoena. The judge instructed the officer to convey what the officer had learned other than his conversation with Cooper and Jackson. Thereafter, plaintiffs' counsel failed to object, on hearsay grounds, to the officer's testimony. Plaintiffs failed to object to any specific testimony of the officer as hearsay, therefore, we...
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