Swope v. Greenbriar Mall Ltd.

• Decision Date: 03 November 2014
• Docket Number: No. A14A0981.,A14A0981.
• Citation: 765 S.E.2d 396,329 Ga.App. 460
• Court: Georgia Court of Appeals
• Parties: SWOPE v. GREENBRIAR MALL LIMITED PARTNERSHIP et al.

329 Ga.App. 460

765 S.E.2d 396

SWOPE

v.GREENBRIAR MALL LIMITED PARTNERSHIP et al.

No. A14A0981.

Court of Appeals of Georgia.

Nov. 3, 2014.

Betts & Associates, David Edward Betts, Atlanta, for Appellant.

Cruser & Mitchell, William Thomas Mitchell, Sean Francis William Keenan, Norcross, for Appellees.

Opinion

McFADDEN, Judge.

Michael Juniel filed a premises liability action for injuries sustained when he was shot during an armed robbery while working as a security guard at a mall. The trial court granted summary judgment to the mall ownership and management defendants on the ground of assumption of the risk. Matthew Swope, the administrator of Juniel's estate, appeals.¹ Because there exist no genuine issues of material fact, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). On appeal from the grant of a motion for summary judgment, we review the evidence de novo, and construe all reasonable conclusions and inferences from the evidence in the light most favorable to the nonmovant. Jones v. Barrow, 304 Ga.App. 337, 696 S.E.2d 363 (2010).

So construed, the evidence shows that IPC International Corporation, an independent security contractor, hired Juniel to work as a “public safety officer” at Greenbriar Mall in Atlanta. Juniel was responsible for providing public safety services at the mall, patrolling the property and deterring criminal activity. On March 31, 2007, Juniel arrived for work at 5:00 p.m., and was assigned by his supervisor to patrol a parking lot area of the mall. As Juniel walked through the mall to his assigned post, he saw several masked men near a jewelry store and approached them. One of them had a gun and aimed it toward a mall patron. Juniel intervened in the confrontation, covering the patron's body with his own in an attempt to shield him from the gunshots. Both Juniel and the patron suffered bullet wounds

in the shooting. The masked men then entered the jewelry store, shot a security guard in the store, smashed the counter, stole jewelry, and fled from the mall.

Juniel filed a premises liability action against Greenbriar Mall (2006) Limited Partnership, Hendon Properties, LLC, Hendon Property Management, LLC and O'Leary Partners, Inc. (collectively the “Greenbriar Mall defendants”), claiming that negligent management and patrol of the mall had proximately caused his injuries. The trial court granted summary judgment to the Greenbriar Mall defendants on the basis of assumption of the risk, concluding that “recovery is precluded because the risk [Juniel] encountered was one inherent in his job as a uniformed public safety officer.” This appeal followed.

1. Assumption of the risk.

The Greenbriar Mall defendants assert that the trial court correctly granted summary judgment based on the doctrine of assumption of the risk. We agree.

The general rule is that where one voluntarily and knowingly takes a risk involving imminent danger, he is precluded from recovery by reason of another's negligence. The defense of assumption of risk requires: (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom[;] and (3) that he voluntarily exposed himself to such risk. Stated another way: The doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury.

Baker v. Harcon, Inc., 303 Ga.App. 749, 754(b), 694 S.E.2d 673 (2010) (citation and punctuation omitted).

In this case, the undisputed evidence shows that Juniel fully appreciated the danger involved, yet deliberately chose the obviously perilous course of conduct of putting himself in the armed robber's line of fire. As Juniel acknowledged, he intentionally put himself in harm's way and “became a human shield by covering the patron's body in an attempt to deflect and receive as much of the bullet wounds

as possible.” Because Juniel voluntarily and knowingly took a risk involving imminent danger of being shot, he is precluded from recovery under the assumption of the risk doctrine.

Swope argues that even if Juniel assumed the specific risk of being shot, he is not precluded from recovery pursuant to the rescue doctrine. However, the rescue doctrine does not apply in this case.

The rescue doctrine applies when the defendants' negligent acts or omissions have created a condition or situation which involves imminent and urgent peril to life and property. In such instances, those negligent acts or omissions are also negligent in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, attempt to rescue the endangered life or property by reasonably appropriate means. The doctrine of rescue necessarily contemplates an assumption of the risk inherent in the peril created by the defendants' negligence. But the rescue doctrine would apply only if [the plaintiff] were acting simply as a volunteer, or bystander.

Griner v. Georgia Farm Bureau Mut. Ins. Co., 266 Ga.App. 289, 292(2), 596 S.E.2d 758 (2004) (citations and punctuation omitted; emphasis supplied). See also Walker Hauling Co. v. Johnson, 110 Ga.App. 620, 623, 139 S.E.2d 496 (1964) (rescue doctrine applied to volunteer who helped fight a fire).

Pretermitting the question of whether Juniel exercised ordinary care for his own safety under the circumstances is the fact that he was not acting simply as a volunteer or bystander. Rather, the undisputed evidence shows that the only reason Juniel was on the scene was that he was on duty as a security guard or public safety officer. Since Juniel acted in his capacity as a security officer, the rescue doctrine does not apply, and instead the assumption of the risk doctrine controls. Indeed, “[t]he strength of the assumption of risk doctrine to persons employed in security is shown in Atlanta Braves v. Leslie, 190 Ga.App. 49, 378 S.E.2d 133 (1989).” Martin v. Gaither, 219 Ga.App. 646, 649, 466 S.E.2d 621 (1995).

In Atlanta Braves, as in the instant case, the plaintiff was on the defendants' premises working in his capacity as a security guard when he was shot by an armed robber. In awarding summary judgment to the defendants in that case, this court held:

The possibility of a face-to-face encounter with a criminal is an ordinary and obvious risk incident to employment as an armed security guard. Accordingly, as a matter of law, [plaintiff], by accepting employment as [a] security guard, assumed the risk that he would have such encounters on the stadium premises. [Plaintiff] was, in effect, hired to provide an element of the very security that he alleges was negligently lacking.

Atlanta Braves, 190 Ga.App. at 50(1), 378 S.E.2d 133.

While Juniel was not armed, the same rationale applies to his employment as a public security officer at the mall. He acknowledged as much in his deposition, testifying that he was aware that in his capacity as a security officer he could have a face-to-face encounter with a criminal while on duty and possibly suffer injury. He had worked for many years in security, and testified, among other things, that “when you work as a security...