Six Flags Over Ga. II, L.P. v. Martin

Decision Date20 November 2015
Docket NumberNos. A15A0828,A15A0829.,s. A15A0828
Citation335 Ga.App. 350,780 S.E.2d 796
Parties SIX FLAGS OVER GEORGIA II, L.P. et al. v. MARTIN. Martin v. Six Flags Over Georgia II L.P. et al.
CourtGeorgia Court of Appeals

Holland & Knight, Laurie Webb Daniel, Mellori Evonn Lumpkin, Vernon Markice Strickland, Atlanta, Heather Anne Calhoun, Leland Hiatt Kynes, Carlock, Copeland & Stair, for appellants.

Deitch & Rogers, Andrew Timothy Rogers, Gilbert H. Deitch, Timothy Shane Peagler, Bondurant Mixson & Elmore, Naveen Ramachandrappa, Michael Brian Terry, Michael Lawson Neff, Weinberg, Wheeler, Hudgins, Gunn & Dial, Shannon Vise Barrow, Atlanta, for Martin.

DILLARD, Judge.

In Case No. A15A0828, Six Flags Over Georgia II, L.P. ("Six Flags") appeals a jury verdict in favor of Joshua Martin, who sued Six Flags under a premises-liability theory after sustaining serious injuries when he was viciously attacked by gang members at a nearby bus stop that he used to access its park. On appeal, Six Flags argues that the jury's verdict must be reversed because the attack on Martin occurred outside of its "premises and approaches" as defined in OCGA § 51–3–1, there was insufficient evidence to show that Six Flags's negligence was the proximate cause of Martin's injuries, and the trial court erred by denying its request to include some of Martin's assailants on the verdict form for apportionment of fault. Martin cross-appeals, in Case No. A15A0829, arguing that the trial court erred by failing to give one of his requested jury instructions and by denying his request to enter judgment against Six Flags as of the verdict date, which deprived him of post-judgment interest. For the reasons set forth infra, we hold that the evidence was sufficient to support the jury's verdict, but we nevertheless reverse the verdict and remand the case for a new trial because the trial court erred in denying Six Flags's apportionment request. And because this case must be retried, we dismiss Martin's cross-appeal as moot.

Viewing the evidence with every inference and presumption in favor of upholding the verdict,1 the record shows that Six Flags is located in a well-known, high-crime area, which has been the site of numerous instances of criminal gang activity. Six Flags was aware of criminal gang activity within its park, and among its employees, but discouraged its employees from discussing the issue. Indeed, in the years preceding Martin's attack, there had been instances of criminal activity inside the park that "spilled over" to outside the park. Eddie Herman, a former Cobb County police officer who worked closely with Six Flags for almost 30 years, testified that the risk of criminal activity was greatest at closing time when Six Flags's customers were funneled into parking lots and nearby bus stops, which he described as "hot spots." Nevertheless, Six Flags invited its customers to use nearby bus stops, including the Cobb County Transit ("CCT") bus stop, and considered the stops good for business.

On July 3, 2007, a Tuesday, Martin went to Six Flags to celebrate a friend's acceptance to college. Sometime that same day, unbeknownst to Martin, several gang members (who would later attack him), including at least one Six Flags employee, accosted and threatened two families inside the Six Flags park and in its parking lot. Specifically, approximately one hour before the park closed, the Tapp and Queen families were near a park ride, when gang members ran toward a five-year-old child. John Tapp grabbed one of the gang members to stop him from running over the child, and another gang member became angry and tried to strike Tapp from behind. When Eric Queen intervened, the gang circled Tapp and Queen, coming "nose to nose" with and threatening to "beat the shit out of" them. After Six Flags security guards approached, the gang members backed off and walked away. As they were walking away, the gang members threatened to "get" Queen and Tapp in the parking lot. Queen and Tapp reported the incident to Six Flags security, giving a physical description of the gang members.

At closing time, the Tapp and Queen families were leaving the park when they saw a group of approximately 40 men gathered around and looking toward the gate. The men were wearing similar clothing and included the same gang members who had earlier threatened them. After security guards followed the gang members out of the park gates and returned to the park, the Tapps and Queens exited the gates, believing it was safe for them to do so. Instead, they immediately saw the gang of 40 to 50 men blocking the sidewalk. And unable to return to the park, the Tapps and Queens tried to blend in with the crowd to avoid being noticed by the gang members who had threatened them. The two families were nonetheless spotted and someone yelled, "drop the hammer," which Tapp understood to mean that the group had a gun. The Tapp and Queen families hurried to their cars and were able to escape without incident.

Shortly before 9:00 p.m., the park's closing time, Martin, along with friends, walked down Six Flags Parkway to South Service Road past the CCT bus stop and then down South Service Road to a nearby hotel to use the restroom. But by the time Martin and his friends returned to the bus stop, they had missed the 9:00 p.m. bus. To wait for the next bus, Martin and his friends walked back down Six Flags Parkway toward the park and sat on a rail near the park entrance.

After seeing a large group of people in the area (all wearing similar t-shirts), Martin and his friends left the rail and walked away from the park back down Six Flags Parkway to the CCT bus stop where they waited for the bus. At this point, the group of gang members, including those that had accosted the Tapp and Queen families, turned their sights on Martin and his friends. Without any provocation, Martin was hit with brass knuckles and knocked to the ground. Martin attempted to escape, but he was repeatedly stomped on by various gang members, which caused him permanent and severe brain damage.

Thereafter, Martin sued Six Flags under a premises-liability theory, alleging that it was liable for his injuries under OCGA § 51–3–1 for failing to exercise ordinary care to keep the park premises and approaches safe for him as its invitee. After a trial, the jury issued a verdict in favor of Martin and awarded him $35,000,000 in damages. And because the jury apportioned 8 percent of the fault to the four individuals who had criminal convictions related to Martin's attack and 92 percent to Six Flags, the trial court entered judgment against Six Flags in the amount of $32,200,000, plus $541,093.12 for prejudgment interest, as well as court costs and post-judgment interest. This appeal by Six Flags follows.

At the outset, we note that when a jury returns a verdict and it has the approval of the trial judge, "the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence."2 Indeed, we are charged with construing "the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even [when] the evidence is in conflict."3 Bearing these guiding principles in mind, we turn now to Six Flags's specific claims of error.

1. Six Flags first argues that the jury's verdict was unsupported by the evidence because the bus stop where Martin was attacked was not, as a matter of law, part of its "premises and approaches" within the meaning of OCGA § 51–3–1. We disagree.

Our analysis necessarily begins with the text of OCGA § 51–3–1, which provides that "[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." And our Supreme Court has interpreted this statutory text as imposing "a duty on a landowner regarding approaches to his premises that are public ways to exercise due care within the limited confines of his right in the public way, notwithstanding the landowner's lack of control over that public way approach."4 Furthermore, the term "approaches," as used in OCGA § 51–3–1, has been construed to mean

that property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to come upon his premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended.5

And property that is "contiguous, adjacent to, and touching" means "property within the last few steps taken by invitees, as opposed to ‘mere pedestrians,’ as they enter or exit the premises."6 Finally, what constitutes an approach to certain premises is "a question with both factual and legal connotations."7

Here, the evidence shows that the attack on Martin occurred at the CCT bus stop, which is located at the intersection of two public streets—Six Flags Parkway and South Service Road—in an area that is not "contiguous, adjacent to, or touching" Six Flags's premises. As a result, the CCT bus stop does not meet the Supreme Court of Georgia's general definition of an "approach," as outlined supra. Nevertheless, our Supreme Court has recognized that there are exceptions to this general definition of an approach.8 Indeed, under certain circumstances "non-contiguous property can be deemed an approach because the landowner extended the approach to his premises by some positive action on his part, such as...

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