Sturbridge Partners, Ltd. v. Walker

• Decision Date: 17 March 1997
• Docket Number: No. S96G1117,S96G1117
• Citation: 267 Ga. 785,482 S.E.2d 339
• Parties: , 97 FCDR 887 STURBRIDGE PARTNERS, LTD. et al. v. WALKER.
• Court: Georgia Supreme Court

Page 339

482 S.E.2d 339

267 Ga. 785, 97 FCDR 887

STURBRIDGE PARTNERS, LTD. et al. v.WALKER.

No. S96G1117.

Supreme Court of Georgia.

March 17, 1997.

Reconsideration Denied April 4, 1997.

Genevieve L. Frazier, Chambers, Mabry, McClelland & Brooks, Atlanta, for Plaintiffs.

Joseph Szczecko, Simmons, Warren, Szczecko & McFee, Decatur, R. Clay Porter, Christopher David Pixley, Dennis Corry, Porter & Gray, Atlanta, for Defendant.

Gilbert H. Deitch, Bauer & Deitch, Atlanta, John A. Foster, National Victim Center, Arlington, for Amicus Appellee.

HINES, Justice.

Certiorari was granted to review the Court of Appeals opinion in Walker v. Sturbridge Partners, Ltd., 221 Ga.App. 36, 470 S.E.2d 738(1996).The issue to be resolved is the showing that must be made by a plaintiff seeking to establish the foreseeability of a criminal attack for the purpose of premises liability.

Walker was raped and sodomized in her apartment at approximately 12:30 a.m. on May 9, 1992.She sought recovery for her injuries against the apartment owner, Sturbridge Partners, Ltd., and the operating manager, The Horn Blow Partnership, d/b/a The Horn Harlow Companies, (collectively "Sturbridge") based, inter alia, on their alleged negligence in failing to take action despite notice of three prior burglaries which occurred in March and April of 1992.Sturbridge moved for summary judgment on the issue, asserting that because the evidence failed to disclose any prior rapes or other violent sex crimes, the criminal attack was not foreseeable, as a matter of law, and it therefore had no duty to act.The trial court granted Sturbridge's motion, and the Court of Appeals reversed, holding that, for the purpose of determining foreseeability, a distinction as a matter of law between the risks posed by burglaries involving brutal sexual assaults and those that did not was unfounded.It stated that such an

"analysis suggests that the landlord could lawfully safeguard its tenants from burglars who commit only thefts differently from those burglars who commit crimes against the person....[P]laintiff's evidence ... is more than sufficient to create a triable issue as to defendants' appreciation of the foreseeable risks posed by burglars to its tenants."

Walker v. Sturbridge Partners, Ltd., supra at 39(1), 470 S.E.2d 738.Sturbridge appeals from the holding, and we affirm.

The general rule regarding premises liability is that a landlord does not insure tenants' safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to "exercise ordinary care in keeping the premises and approaches safe."OCGA § 51-3-1.A landlord's duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal acts.SeeDays Inns of America, Inc. v. Matt, 265 Ga. 235, 236, 454 S.E.2d 507(1995).The difficulty arises in determining which criminal acts are foreseeable.

Sturbridge relies upon Savannah College of Art & Design v. Roe, 261 Ga. 764, 409 S.E.2d 848(1991), for the proposition that a landlord's knowledge of prior criminal acts against property cannot establish the foreseeability of a brutal sex crime as a matter of law, and, therefore, no duty arose in the instant case.Such a restrictive and inflexible approach does not square with common sense or tort law, and represents a significant departure from precedent of this Court.SeeDays Inns of America, Inc. v. Matt, supra;Lau's Corp. v. Haskins, 261 Ga. 491, 492(1), 405 S.E.2d 474(1991);andAtlantic Coast Line Ry. Co. v. Godard, 211 Ga. 373, 376(1), 86 S.E.2d 311(1955).To the extent that Savannah College of Art & Design supports such an analysis for determining foreseeability, it is overruled.

In Lau's Corp. v. Haskins, supra at 492(1), 405 S.E.2d 474, this Court adopted a guideline for determining whether a proprietor had a "duty" to exercise ordinary care in protecting his or her customers against the risk posed by criminal activity.We held: "[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.]". Id.Accordingly, the incident causing the injury 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.SeeMatt v. Days Inns of America, Inc., 212 Ga.App. 792, 443 S.E.2d 290(1994), aff'd, Days Inns of America, Inc. v. Matt, supra.

In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.SeeDays Inns of America, Inc. v. Matt, supra;Lau's Corp. v. Haskins, supra;Shoney's Inc. v. Hudson, 218 Ga.App. 171, 460 S.E.2d 809(1995);andHenderson v. Kroger, 217 Ga.App. 252, 456 S.E.2d 752(1995).While the prior criminal activity must be substantially similar to the particular crime in question, that "does not mean identical. ...'[What] is required is that the prior [incident] be sufficient to attract the [landlord's] attention to the dangerous condition which resulted in the litigated [incident].'[Cit.]."Matt v. Days Inns of America, Inc., supra at 794-795, 443 S.E.2d 290.Further, the question "of reasonable foreseeability" of a criminal attack is generally "for a jury's determination rather than summary adjudication by the courts."Lay v. Munford, 235 Ga. 340, 341, 219 S.E.2d 416(1975).

Sturbridge contends that because of the nature of the prior burglaries, that is, they occurred during the daytime when no one was home and did not involve forced entry, it was unreasonable to anticipate that a brutal sex crime would occur.We do not agree.The issue is not the foreseeability of the rape itself, but whether Sturbridge had actual knowledge of the prior burglaries and, because of that knowledge, should have reasonably anticipated the risk of personal harm to a tenant which might occur in the burglary of an occupied apartment.SeeSun Trust Banks, Inc. v. Killebrew, 266 Ga. 109, 464 S.E.2d 207(1995);Days Inns of America, Inc. v. Matt, supra;andLau's Corp. v. Haskins, supra.

The record demonstrated that Sturbridge had actual knowledge of two of the three prior burglaries.Although they were committed when the apartments were vacant, it was reasonable to anticipate that an unauthorized entry might occur while an apartment was occupied and personal harm to a tenant could result.¹Thus, we agree with the Court of Appeals that evidence of the prior burglaries was sufficient to give rise to a triable issue as to whether or not Sturbridge had the duty to exercise ordinary care to safeguard its tenants against the foreseeable risks posed by the prior burglaries.²

Judgment affirmed.

All the Justices concur, except BENHAM, C.J., FLETCHER, P.J., and CARLEY, J., who dissent.

BENHAM, Chief Justice, dissenting.

Because the majority opinion makes landowners virtual insurers of those who come on their property, I must dissent.A property-owner's liability for injuries caused by the criminal acts of third parties is supposed to be an exception to the rule (McClendon v. C & S Nat. Bank, 155 Ga.App. 755, 756, 272 S.E.2d 592(1980)), but the majority makes the exception devour the rule.

My first disagreement with the majority is with the result.The issue is whether Sturbridge's knowledge of two previous burglaries in vacant apartments in the complex gave it reason to anticipate that someone would break into an occupied apartment in order to sexually assault the occupant.In Savannah College of Art and Design v. Roe, 261 Ga. 764(2), 409 S.E.2d 848(1991)(hereinafter SCAD ), where there had been a previous incident in which a resident surprised a burglar, this court held that "the college was entitled to summary judgment because there was no evidence sufficient to create a factual issue as to whether the college knew or should have known that its dormitory residents were at risk of a violent criminal sexual attack.[Cit.]"Id. at 766, 409 S.E.2d 848.That decision is directly on point and controlling in this case.It demands the conclusion that the crimes of which the property owner here was on notice were not so similar as to impose on that property owner a duty to guard against the crime which was committed.The Court of Appeals erred in ruling otherwise and erred in seeking to cast aside this court's ruling in SCAD with no more than a "compare" citation.

The majority's overruling of SCAD is an unfortunate jettisoning of precedent.³That case has been applied with predictability since it was decided, and abandoning the past several years of precedent is unwise.The cases cited by the majority are not, as it contends, inconsistent with SCAD.The departure from precedent is not in that case, as the majority contends, but in this case, in broadening the concept of notice so far as to make it unnecessary.If, as the majority holds, any burglary of any type at any time is sufficient to make a violent sexual attack in the home of the victim foreseeable, then SCAD was wrongly decided.I do not believe it was wrongly decided, and I believe the majority is wrong in overruling it.

The majority errs again, I believe, in its analysis of the issue of substantial similarity.Although it gives lip service to the factors to be considered in an analysis of foreseeability in premises liability cases, noting the necessity of considering "the location, nature and extent of the prior criminal activities and their likeness, proximity or other...