Shadow v. Fed. Express Corp.
Decision Date | 15 June 2021 |
Docket Number | A21A0072 |
Citation | 359 Ga.App. 772,860 S.E.2d 87 |
Court | Georgia Court of Appeals |
Parties | SHADOW v. FEDERAL EXPRESS CORPORATION et al. |
Melvin L. Hewitt Jr., Hilary Wayne Hunter, Richard loseph Crowson, Atlanta, for Appellant.
Christopher T. Byrd, Frederick Newman Sager Jr., Stephen William Mooney, Atlanta, for Appellee.
This case arises from a tragic mass shooting at a FedEx Ground (Ground) packaging facility in Kennesaw that left numerous people seriously injured and the perpetrator dead. Ground employee Melissa Shadow, who was injured during the rampage, sued Federal Express Corporation (Express), and FedEx Corporate Services, Inc. (Services) for negligence. The trial court granted summary judgment to Express and Services on the ground that the risk of an active shooter was not foreseeable. Shadow now appeals from that order. After a thorough review of the record, we conclude that the trial court properly found that the attack was not foreseeable. Accordingly, we affirm the grant of summary judgment.
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, Inc. , 333 Ga. App. 362, 363, 773 S.E.2d 480 (2015).
In April 2014, Shadow and Geddy Kramer were employed at a Ground packaging facility in Kennesaw. Around 6:00 a.m. one morning, Kramer drove into the parking lot and entered the guard house through the exit door, which had been propped open.1 He shot a security guard employed by AlliedBarton Security Services before exiting the guard house and accessing the main building through the bay doors. Once inside, he shot several other people, including Shadow, and then committed suicide.
FedEx Corporation (Corporation) is the parent company of the FedEx entities, which include Ground, Services, and Express. Express provides security services and training opportunities to Ground employees, and has two security specialists assigned to the Kennesaw facility to investigate internal losses and incidents of workplace violence, provide training, and oversee the hired security guards. Services provides sales, payroll, and IT to the various Federal Express operating companies.
The Kennesaw packaging facility housed package handlers, who worked the local delivery routes, and also operated as a "hub" for line haul drivers and tractor trailers. The facility was open 24 hours a day, except for Sunday, and package handlers were typically on site in the overnight and early morning hours. At any given time, there were about 150 to 200 people in the facility. The buildings were surrounded by a fence, and anyone entering was required to pass through the guardhouse staffed by unarmed AlliedBarton guards and swipe a badge to gain access to the main facility.
In 2011, there was a domestic violence incident at a Ground facility in Bedford Park, Illinois, in which the perpetrator committed suicide. Following this incident, Corporate updated its workplace safety program to address workplace violence. Generally, employees were trained to report any concerns to management for investigation by the Express security specialists.
In addition to the Bedford Park incident, Corporation and Express had copies of prior reports of threats at the Kennesaw facility in the five years leading up to the Kennesaw facility shooting, including a January 2011 matter in which a contractor's terminated employee commented that he was on the premises to "see who I'm going to shoot first;" a February 2011 incident in which a package handler threatened to stab and kill another employee; and an altercation in which an employee stated she would slap another employee before committing an assault in the parking lot. Corporation was also aware that package handlers had threatened AlliedBarton guards. Given the increase in mass shootings throughout the country, Corporation and the Express security managers generally believed an active shooter incident could happen anywhere, but did not expect it to happen at the Kennesaw facility.
After the shooting, Shadow filed the instant complaint against Corporation, Express, Services, AlliedBarton, and the estate of Geddy Kramer, alleging negligence arising from the failure to keep the premises safe, failure to warn, failure to provide adequate security, and failure to keep the premises in proper repair.2 To show that the attack was foreseeable, as was required to hold the premises owner liable for Kramer's criminal act, Shadow pointed to the Bedford Park shooting and the other reports of workplace violence at the Kennesaw facility. See Rautenberg v. Pope , 351 Ga. App. 503, 505 (1), 831 S.E.2d 209 (2019). She also submitted the testimony and report of a security expert, who opined that Express and Services had sufficient information from prior instances of workplace violence to make the attack foreseeable. The expert further noted that Express's security specialists knew of the problems controlling access to the facility – specifically, the exit door being propped open and the presence of a handle on the exterior of the exit door that enabled people to re-enter – which he opined further made the shooting foreseeable.
The trial court granted summary judgment to Express and Services, finding that Shadow had not established a factual question about whether the shooting was foreseeable. The trial court determined that the prior incidents were not sufficiently similar, and, although there had been some prior threats made toward the guards, the threats were only verbal and never involved Kramer. As to the expert's testimony, the trial court explained that it was insufficient to create a factual question because a generalized risk of harm was not enough.
Shadow now appeals, arguing that the trial court erred in finding that the shooting was not foreseeable on three related grounds: (1) it applied the wrong standard and incorrectly determined that the prior crimes were not substantially similar; (2) the cases the trial court relied on were distinguishable; and (3) the trial court ignored the expert testimony opining that the attack was foreseeable. We are not persuaded.
(Citation omitted.) Brown v. All-Tech Investment Group, Inc. , 265 Ga. App. 889, 893 (1), 595 S.E.2d 517 (2003).
In Georgia, a proprietor owes its invitees a duty "to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. But, (Citation omitted.) Rautenberg , 351 Ga. App. at 505 (1), 831 S.E.2d 209.
We now turn to Shadow's specific enumerations of error, concluding that, although issues of negligence and reasonable foreseeability are generally not appropriate for summary judgment, "when, as here, the evidence is plain, palpable, and undisputable the trial court can and should conclude that a party is entitled to judgment as a matter of law." (Citations and punctuation omitted.) River Place at Port Royal Condo. Assn., Inc. v. Sapp , 358 Ga. App. 632, ––––, 856 S.E.2d 28 (2021).
(Citations and punctuation omitted.) Sturbridge Partners, Ltd. v. Walker , 267 Ga. 785, 786, 482 S.E.2d 339 (1997) ; see also Doe v. Prudential-Bache/A. G. Spanos Realty Partners, L.P. , 268 Ga. 604, 605, 492 S.E.2d 865 (1997) ( ); Rautenberg , 351 Ga. App. at 505 (1), 831 S.E.2d 209.
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