Suresh & Durga, Inc. v. Doe

• Docket Number: A23A0942
• Decision Date: 31 October 2023
• Parties: SURESH & DURGA, INC. v. JANE DOE.
• Court: Georgia Court of Appeals

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SURESH & DURGA, INC. v. JANE DOE.

No. A23A0942

Court of Appeals of Georgia, Third Division

October 31, 2023

DOYLE P. J., GOBEIL, J., and SENIOR JUDGE FULLER

GOBEIL, JUDGE.

Suresh & Durga, Inc., ("Defendant"), which owns and operates the America's Best Inn &Suites motel located at 4095 Covington Highway in Decatur ("ABIS") appeals from the trial court's denial of its motion for summary judgment in Jane Doe's action for negligence and other causes of action based on crimes committed against her on the motel's premises. On appeal, Defendant asserts that the trial court erred in denying its motion for summary judgment on Doe's claims for (1) negligence - premises liability; (2) negligence - negligent hiring/supervision; (3) nuisance; and (4) attorney fees. For the reasons explained below, we affirm the trial court's order denying summary judgment in part, and vacate and remand in part.

"On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo." Baldwin v. State Farm Fire & Cas. Co., 264 Ga.App. 229, 230 (590 S.E.2d 206) (2003). At the summary judgment stage, the trial court

must view the pleadings and evidence in the light most favorable to the nonmoving party, it must accept the credibility of the evidence upon which the nonmoving party relies, it must afford that evidence as much weight as it reasonably can bear, and to the extent that the moving party points to conflicting evidence, it must discredit that evidence for purposes of the motion.

Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75, 84 (3) (779 S.E.2d 334) (2015) (citation and punctuation omitted). "The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact." Id. at 82 (3) (citation and punctuation omitted).

So viewed, the record shows that Doe came to ABIS on November 27, 2016 with Bryant Owens. Doe was 17 years old at the time. Owens left Doe in the vehicle while he paid cash for a room. The two then walked around the back of the motel to the room Defendant denies that any of its employees observed Doe with Owens on the premises or knew of her presence. Owens ordered Doe to sell herself for sex - she walked to a nearby gas station and quickly found a man willing to pay her $50 in exchange for sex. Doe came back to the motel room to complete the transaction, resulting in illegal sex trafficking of a minor.

Before Doe could dress herself, Owens and a female accomplice came into the room. The woman physically assaulted Doe and stole her clothes, while Owens took the money Doe had earned in the sex transaction. They left Doe naked in the motel room. Doe wrapped herself in a comforter and went to the motel office for help. Initially, ABIS employees would not call the police for Doe, instead laughing at her "like they see this all the time." However, she eventually pulled a fire alarm and was allowed to use the phone to call law enforcement. Police arrived and interviewed Doe. Owens ultimately was tried and convicted for trafficking of persons for sexual servitude, pimping for a person under 18, and keeping a place of prostitution for a person under 18, and was sentenced to 20 years in prison.

In December 2020, Doe brought this action against Defendant, originally raising premises liability and negligence, and racketeering claims. After several months of discovery, Doe amended her complaint, asserting claims for: (1) premises liability and negligence; (2) nuisance; and (3) attorney fees pursuant to OCGA § 136-11. More discovery ensued, and eventually Defendant filed a motion for summary judgment. Doe responded, and thousands of pages of evidence were entered into the record. The motion was heard at a hearing on August 26, 2022, and the trial court issued an oral ruling denying Defendant's motion.^[1] A one page order referencing the oral ruling was entered denying summary judgment. The trial court also entered a certificate of immediate review, and Defendant filed an application for interlocutory appeal with this Court, which we granted. Court of Appeals Case No. A23I0094 (Dec. 19, 2022). This appeal followed.

1. In its first three enumerations of error, Defendant contests the trial court's denial of summary judgment on Doe's claim for negligence based on premises liability. For the reasons that follow, we affirm the trial court's order in this respect.

(a) (i) In order to support a premises liability/negligence claim, a plaintiff must establish four elements: duty, breach of duty, causation, and damages. See Retail Property Trust v. McPhaul, 359 Ga.App. 345, 347(1)(a) (857 S.E.2d 521) (2021). "In a premises liability claim, the owner or occupier of land owes a duty to an invitee^[2]to keep the premises and approaches safe." Id. at 347 (1) (a). "However, a property owner is not an insurer of an invitee's safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable." Id. (citation and punctuation omitted). Indeed, "without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises." Days Inns of America, Inc. v. Matt, 265 Ga. 235, 236 (454 S.E.2d 507) (1995). Accordingly, the foreseeability of the criminal act that led to Doe's injuries is critical for her to establish the elements of duty and breach for her negligence claim, and factors into the other elements as well. See Ga. CVS Pharmacy, LLC v. Carmichael, 316 Ga. 718, 722-723 &n. 6 (II) (A) (890 S.E.2d 209) (2023) ("Carmichael") (explaining that foreseeability is relevant to proprietor's duty of care owed, whether that duty was breached, and whether the plaintiff has established proximate cause, albeit in differing ways).

(a) (ii) We turn first to the specifics of Doe's negligence claim. In her amended complaint, Doe asserted that Defendant knew or should have known that dangerous and violent activities (including prostitution, drug crimes, and sex trafficking) were taking place and likely to recur on its premises, and should have taken steps "to prevent the motel from being used as a venue for [Doe's] minor sex trafficking." Doe alleged that the danger to those on its premises was foreseeable to Defendant due in part to a long history of prior criminal activity on the property, including crimes similar to the one perpetrated against Doe. Included in her complaint, Doe listed 45 offenses committed at ABIS in the years leading up to Doe's visit to the motel on November 27, 2016, that she claimed were at least investigated by police. Doe alleged that the motel's general manager lived on site and the property was not large, so there was no way that Defendant's employees were unaware of this long history of criminal activity at its property and the accompanying lack of safety. She alleged that police had interacted with ABIS employees on multiple occasions to investigate violent crimes and sex crimes that had taken place there and that police had labeled the property as "known for prostitution and drug activity."

Indeed, dozens of police reports appear in the record documenting investigations of crimes that took place at ABIS in the few years before Doe's incident, with witness/complainant documentation and officer narratives regarding police interactions with ABIS employees.^[3] Satish Patel, ABIS general manager, testified that he did live on the property and the property was outfitted with several security cameras so that employees could observe all sides of the motel.

An officer who worked with the Internet Crimes Against Children ("ICAC") unit of the DeKalb County Police Department testified that ABIS was "a hotel we went to frequently" to investigate sex trafficking against minors. She interacted with hotel employees during these investigations to obtain records and surveillance videos, and to question if they witnessed any criminal activity. She reported that, based on her time in the ICAC unit from 2015-2017, she believed that ABIS "has a reputation as a popular and common area for drugs, gang activity, prostitution, and sex trafficking, including of minors."

Doe deposed four women who testified to being trafficked for sex at ABIS. One of these women testified that an ABIS employee purchased sex from her while she was being trafficked at the property. Another woman testified that her trafficker specifically chose ABIS because "ABIS didn't care if pimps were selling girls for sex - they were fine with that" and another testified that, due to the manager's reputation for purchasing sex, the traffickers believed he would not report anything to the police. These women also testified that the sex crime activity at ABIS should have been obvious to any casual observer due to the frequency of scantily clad women standing around in the open, accompanied by men wearing expensive jewelry and driving luxury cars, with frequent and brief visits by single male guests (without luggage) to rooms they had not rented for themselves. Further, there is testimony that the witnesses' pimps, who were renting the rooms, regularly were given rooms on the back side of the motel where the activity was not visible from the street.^[4] In her amended complaint, Doe listed dozens of potentially negligent actions by Defendant, including, but not limited to, failure to warn invitees about the dangers posed at the property, failure to maintain adequate security practices or policies to keep invitees safe, failure to monitor or observe part of its property, and failure to properly train or supervise its employees.

(a) (iii) The trial court ultimately found that Doe...