Walker v. Sturbridge Partners, Ltd.

• Court: Georgia Court of Appeals
• Writing for the Court: PER CURIAM; McMURRAY and POPE, P.JJ., and JOHNSON; BEASLEY; BIRDSONG, P.J., and ANDREWS; BEASLEY; McMURRAY; ANDREWS
• Citation: Walker v. Sturbridge Partners, Ltd., 470 S.E.2d 738, 221 Ga.App. 36 (Ga. App. 1996)
• Decision Date: 15 March 1996
• Docket Number: Nos. A95A2199 and A95A2200,s. A95A2199 and A95A2200
• Parties: WALKER v. STURBRIDGE PARTNERS, LTD. et al.; and STURBRIDGE PARTNERS, LTD. v. WALKER.

Page 738

470 S.E.2d 738

221 Ga.App. 36

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

Nos. A95A2199 and A95A2200.

Court of Appeals of Georgia.

March 15, 1996.

Reconsideration Denied March 29, 1996.

Certiorari Granted June 20, 1996.

Simmons, Warren, Szczecko & McFee, Joseph Szczecko, Decatur, for appellant.

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

Dennis, Curry, Porter & Gray, R. Clay Porter, Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Christopher D. Pixley, Atlanta, amici curiae.

PER CURIAM.

After plaintiff Kathy Ann Walker was raped at her apartment, she sued the apartment owners, defendant Sturbridge Partners, Ltd., the operating managers, defendant The Horn Blow Partnership, d/b/a The Horn Harlow Companies (collectively "Sturbridge") and the alleged rapist, a fellow tenant at her complex. Plaintiff alleged, inter alia, negligence and breach of contract because a rear kitchen window, through which the assailant gained entry, was not secured despite plaintiff's prior oral requests. The Sturbridge defendants denied the material allegations and jointly moved for partial summary judgment as to: 1) its alleged failure to act premised on the existence of prior crimes; 2) its alleged failure to act to correct loitering on its premises in the three days preceding the rape; and 3) its alleged breach of the lease.

Only the following chronology is undisputed: On May 2, 1992, plaintiff entered into a written lease agreement with Sturbridge Apartments. At approximately 12:30 a.m. on May 9, 1992, plaintiff was awakened by an intruder who raped and sodomized her. The assailant, allegedly defendant William Derace Brant, was a fellow resident who gained access to plaintiff's ground-floor apartment through the rear kitchen window.

In support of their motion for partial summary judgment, the Sturbridge defendants submitted documentary evidence that plaintiff had inspected the premises before she moved in and failed to note the alleged absence of a lock on the rear kitchen window. Chris Williams, the Sturbridge maintenance man, deposed that "the main locking mechanism on the rear kitchen window was functional and in proper working order prior to [plaintiff's] occupation of the apartment[; ... that the] rear kitchen window was also equipped with thumb screw locks ... [; and that it] was the policy of the apartment complex to put thumb screw locks on the windows in all ground floor apartments in addition to the main center locks...." Gerald Gilbert, a Gwinnett County Deputy Sheriff who assisted in the investigation of plaintiff's rape, deposed that the rapist "gained entrance to [plaintiff's] apartment through the rear kitchen window[; ... and that he and another officer] checked the window locking mechanism on the rear window and found it to be functioning properly."

In opposition, plaintiff showed that Paragraph 2 of the Rules and Regulations under defendant's lease agreement authorizes requests for maintenance to be "made by phone or in writing...." Plaintiff, who had lived at that apartment for only a few days, explained she did not itemize any problems with the window locks on the move-in inventory sheet because she "didn't check them ..." when she first moved in. Consequently, she did not discover any immediate problem until she opened the window. She could not turn the latch and "couldn't lock ..." the kitchen window after it had been opened. Plaintiff further testified that prior to the rape, she had twice orally instructed Sturbridge, through Lisa England, to "see that my lock on my window also needs to be fixed."

Steven Smith testified that the latch was not functioning properly and that he was unable to lock the window. He believed the problem was caused by the window having once been painted shut. Steven Smith also testified that he did not observe any thumbscrew locks on the window and had not removed any when opening the window. Mary Ann Wheat, a resident at the time of the attack on plaintiff, deposed that, "prior to May 9, 1992, [she] had complained several times to Lisa England about the kitchen window latch which was broken in [her own] apartment."

The Sturbridge motion for partial summary judgment further argued that there was no liability for plaintiff's injuries since there had been no substantially similar occurrences on the property. Specifically, Sturbridge argued that from October 23, 1990, when Sturbridge began owning and managing the premises, until May 9, 1992, there had never been a rape or sexual assault committed on the premises. Therefore, because the independent, intervening, criminal act of defendant Brant was unforeseeable, there was no breach of any duty to protect plaintiff Walker.

In opposing the motion, plaintiff presented two types of circumstances purporting to evince recent criminal activity in the apartment complex. First, she showed that three prior burglaries occurred in March and April of 1992. These were daytime burglaries, all of which happened when no one was home. Second, she submitted evidence of a purported sexual assault, involving another female tenant. Mary Ann Wheat deposed that she had complained to Lisa England several times about three men, including defendant William Derace Brant, who would congregate around the "[d]umpster closest to [her] apartment ... and [make] obscene gestures and obscene remarks ..." to her. She specifically deposed that late at night on May 6, 7 and 8, 1992, these men accosted her in the parking lot near her apartment and that she became frightened for her personal safety. Although this tenant testified that she complained to Sturbridge management and its security officer, there is no evidence of record that she ever filed a police incident report. Plaintiff Walker also presented the affidavit of Darrell Tidwell, a certified crime prevention practitioner, who offered 15 reasons why Sturbridge was negligent in failing to take steps and measures reasonably calculated to prevent rape and sexual assault.

The trial court granted the Sturbridge defendants' motion for partial summary judgment in part, as to "Count I, for the ... alleged negligence in failing to act despite ... notice regarding prior crimes ...; Count I, for ... alleged negligence in failing to act regarding the three men ... loitering on the premises ...; [and] Count II, the ... alleged breach of ... certain lease provisions." The trial court denied summary judgment as to any negligence "in allegedly failing to repair the kitchen window ... [and whether plaintiff] is entitled to punitive damages regarding Defendants' alleged negligence in failing to repair." In Case No. A95A2199, plaintiff Walker appeals from the partial grant of summary judgment in both tort and contract. In Case No. A95A2200, the Sturbridge defendants cross-appeal from the denial of their motion for summary judgment as to tort liability for failing to fix the window and any liability for punitive damages. Held:

Case No. A95A2199

1. In her second enumeration of error, plaintiff Walker contends the trial court erred in its determination that, as a matter of law, the prior burglaries were not sufficiently similar to provide notice of a problem to Sturbridge. We agree that evidence of three daytime apartment burglaries in March and April 1992, all of which happened when no one was home, were of sufficient similarity as to have put Sturbridge on notice.

" '[I]n order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the owner may be held liable.' Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga.App. 235, 237(1) (416 SE2d 776) (1992); Grandma's Biscuits v. Baisden, 192 Ga.App. 816, 817(1) (386 SE2d 415) (1989)." Woods v. Kim, 207 Ga.App. 910, 429 S.E.2d 262 (1993). "A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another...." OCGA § 16-7-1(a). In our view, the three prior daytime burglaries were sufficiently similar to put the landlord on notice that its tenants may be subjected to an unreasonable risk of harm from the criminal acts of third persons. "In this sense, substantially similar does not mean identical, and it is not a question whether a [sexual assault resulted from any previous burglary], but whether the prior crimes should have put an ordinarily prudent person on notice that the [landlord's tenants] were facing increased risks. 'All that 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).' Pembrook Mgmt. v. Cosaboon, 157 Ga.App. 675, 677 (278 SE2d 100)." (Emphasis supplied.) Matt v. Days Inns of America, 212 Ga.App. 792, 794, 443 S.E.2d 290, aff'd sub nom., Days Inns of America v. Matt, 265 Ga. 235, 454 S.E.2d 507. In Days Inns, the Supreme Court of Georgia concluded that a single "prior robbery committed by force create[d] a triable issue as to whether [the occupier of land] had a duty [under OCGA § 51-3-1] to exercise ordinary care to guard its patrons against the risks posed by similar criminal activity[, citing Lau's Corp. v. Haskins, 261 Ga. 491, 493(1), 405 S.E.2d 474]." 265 Ga. 235, 236, 454 S.E.2d 507, supra. Consequently, in the case sub judice, we do not recognize any attempted distinction of the three prior burglaries as crimes against property but not brutal sexual assaults. This 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. Such reasoning was previously considered by the whole court and rejected. Matt v. Days Inns of America, 212...