Shoney's, Inc. v. Hudson

• Decision Date: 10 July 1995
• Docket Number: No. A95A0840,A95A0840
• Citation: 460 S.E.2d 809,218 Ga.App. 171
• Parties: SHONEY'S, INC. v. HUDSON.
• Court: Georgia Court of Appeals

Page 809

460 S.E.2d 809

218 Ga.App. 171

SHONEY'S, INC. v. HUDSON.

No. A95A0840.

Court of Appeals of Georgia.

July 10, 1995.

Reconsideration Denied July 26, 1995.

Certiorari Denied Nov. 3, 1995.

Bouhan, Williams & Levy, Frank W. Seiler, Peter D. Muller, Savannah, for appellant.

Jones, Boykin & Associates, Noble L. Boykin, Jr., Savannah, for appellee.

POPE, Presiding Judge.

At dusk on Sunday, November 15, 1992, plaintiff Sue Hudson was injured when an unknown assailant attacked and robbed her in the parking lot of one of defendant Shoney's, Inc.'s restaurants located in Savannah, Georgia. Plaintiff filed a complaint against defendant alleging that it negligently maintained its premises and failed to provide adequate security for the protection of its patrons. Defendant answered the complaint denying liability and thereafter moved for summary judgment contending that the assailant's conduct was an unforeseeable criminal act for which it could not be held responsible. The case is before us on interlocutory appeal from the trial court's denial of defendant's motion. Construing the facts most favorably to plaintiff, we conclude that a jury issue remains as to any negligence on defendant's part and as to whether defendant had reason to anticipate the criminal attack. Thus, we affirm the trial court's judgment.

In support of its motion for summary judgment, defendant relied on testimony from two of its employees and the president of the restaurant next door to it. Defendant used this testimony in an attempt to demonstrate that the attack on plaintiff was not reasonably foreseeable because it was unaware of any prior substantially similar incidents on its property or any surrounding property. In opposition to this testimony, plaintiff relied on police printouts showing that between 1988 and 1992 14 other criminal offenses had been reported at defendant's address and that numerous other criminal offenses had been reported in the surrounding area. Plaintiff also relied on various police reports, and several affidavits, including one from a security expert (George Fedak) and one from a former management employee of defendant (Jeffrey Schroder), in support of its contention that summary judgment was inappropriate in this case.

1. Defendant contends that the trial court erred in considering the above-mentioned police reports. We disagree. The record demonstrates that the police reports were attached as exhibits to the deposition of a police officer, who was the custodian of the reports. "There can be no real doubt that the [reports] were business records and that the officer laid a proper foundation for [their] admission.... Thereafter, the officer simply laid before the [trial court] the contents of the [reports]. The fact that he had no personal knowledge of the entries on the [reports], after an appropriate foundation was laid, does not affect the admissibility of the evidence though it may go to its weight." (Citations omitted.) Reed v. Heffernan, 171 Ga.App. 83, 84(1), 318 S.E.2d 700 (1984). Moreover, the trial court's reliance on the content of four of the reports, all of which involved incidents occurring on defendant's property, was not error because the information contained in those reports "was merely cumulative of other evidence to the same effect." See Johnson v. State, 168 Ga.App. 271, 272(1), 308 S.E.2d 681 (1983). Additionally, it appears that the trial court merely considered the remainder of the reports as reflective of an act, occurrence or event, in reaching its conclusion that an issue of fact existed regarding whether defendant knew that its restaurant was located in a "high crime" area. The reports were admissible for that purpose. Id. Consequently, we find no merit in the argument that the trial court erred in refusing to strike the reports from the record.

2. We also find no merit in defendant's contention that the trial court erred in denying its motion for summary judgment. It is undisputed in this case that plaintiff was a business invitee of defendant at the time of her attack. "A proprietor's duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. The proprietor is not the insurer of the invitee's safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. 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." (Citations and punctuation omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 492(1), 405 S.E.2d 474 (1991); see Days Inns of America v. Matt, 265 Ga. 235, 236, 454 S.E.2d 507 (1995). "Exactly what constitutes 'ordinary care' varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm." (Citation and punctuation omitted.) Matt v. Days Inns of America, 212 Ga.App. 792, 794, 443 S.E.2d 290 (1994).

Evidence of substantially similar prior criminal acts may be used to demonstrate the existence of a recognizable risk of harm. As the trial court noted, defendant knew about at least four prior acts of violence at its restaurant. ¹ The record shows that in 1990, at approximately 2:00 a.m., an armed man robbed defendant's manager in the parking lot of the restaurant. In 1991, a cashier was shot in the face during an armed robbery in which the gunman held the restaurant's patrons at bay by brandishing his weapon. As a result of these two incidents, defendant hired security to work at the restaurant, seven days a week, during the evening hours. But, the use of security guards was discontinued when defendant installed video...