Washington Road Properties, Inc. v. Stark

• Decision Date: 05 February 1986
• Docket Number: Nos. 71534,71535,s. 71534
• Citation: 342 S.E.2d 327,178 Ga.App. 180
• Parties: WASHINGTON ROAD PROPERTIES, INC. et al. v. STARK. WASHINGTON ROAD PROPERTIES, INC. et al. v. BORDWELL.
• Court: Georgia Court of Appeals

Page 327

342 S.E.2d 327

178 Ga.App. 180

WASHINGTON ROAD PROPERTIES, INC. et al. v. STARK.

WASHINGTON ROAD PROPERTIES, INC. et al. v. BORDWELL.

Nos. 71534, 71535.

Court of Appeals of Georgia.

Feb. 5, 1986.

Rehearing Denied March 10, 1986.

Certiorari Denied April 29, 1986.

James W. Purcell, J. Arthur Davison, Augusta, for appellants.

Ronald C. Griffeth, Robert C. Daniel, Jr., James W. Ellison, Augusta, for appellees.

DEEN, Presiding Judge.

At about 9:00 p.m. on April 6, 1984, Carol Bordwell and Carmen Stark registered for a room at the Ramada Inn West, appellant, in Augusta, Georgia. As they approached their room they passed a black male who was standing beside the steps. Bordwell and Stark proceeded to their room, but before they could close the door this man appeared in the doorway, displayed a handgun, and entered the room. He then tied up both women, robbed them, and raped Carol Bordwell. After he left, the two women were able to untie themselves and summon the police. The assailant was never apprehended.

Around 7:30 p.m. that same evening, the motel manager had observed a black male, who matched the description of the assailant, standing by the entrance to the lounge. The manager asked him what he was doing, and the man stated that he was waiting for a friend, but he would not identify the friend. The manager then told him to leave, and he watched the man actually walk off the premises.

It was uncontroverted that the motel was located in what was generally considered a low crime area. A security guard was on duty from 11:00 p.m. until 6:00 a.m. The manager stated that he knew of only two prior criminal acts on the premises, both of which had been robberies of the motel front desk three and five years earlier. He also recalled, however, that about one week prior to the rape a man matching the assailant's description had been seen looking through the window of the motel lounge; the security guard had been contacted at that time but was unable to find this person. The parking lot and the common walkways were lighted.

Subsequently, the appellees, Carol Bordwell and Carmen Stark, commenced actions against the appellant, alleging negligence in the appellant's failure to maintain safe premises and warn them of the danger of criminal acts. The trial court denied the appellant's motion for summary judgment in each case, and these interlocutory appeals (consolidated here) followed. Held:

An innkeeper has a duty to keep his premises in a reasonably safe condition for his patrons, but an innkeeper is not an insurer. Truett v. Morgan, 153 Ga.App. 778, 266 S.E.2d 557 (1980). A proprietor may be liable for an invitee's injuries caused by the misconduct of a third party, if there was any reasonable apprehension of such danger or if the proprietor could have prevented the injury through the exercise of ordinary care. McCoy v. Gay, 165 Ga.App. 590, 302 S.E.2d 130 (1983); see also, McClendon v. C & S Nat. Bank, 155 Ga.App. 755, 272 S.E.2d 592 (1980).

In the instant case there was no evidence showing that the appellant had any basis to know of, or reasonably to foresee, the danger of the criminal attack upon the two appellees. Assuming that the assailant was the same person whom the motel manager had required to leave the premises earlier in the evening, and even the same person who had looked through the lounge window the week before, as a matter of law the evidence demands a finding that the manager acted reasonably and exercised ordinary care to keep the premises safe for the patrons; to hold otherwise in this case would impose a standard of hindsight rather than reasonable foresight. Additionally, the two robberies at the motel front desk three and five years prior to the criminal attack upon the appellees did not constitute notice to the appellant of a dangerous condition that might subject the motel patrons to an unreasonable risk of criminal injury, as there was no substantial similarity between those prior robberies and the present incident. McCoy v. Gay, supra; Tolbert v. Captain Joe's Seafood, 170 Ga.App. 26, 316 S.E.2d 11 (1984). Accordingly, the trial court erred in denying the appellant's motion for summary judgment in both cases.

Judgments reversed.

BANKE, C.J., BIRDSONG, P.J., and SOGNIER, POPE and BENHAM, JJ., concur.

CARLEY and BEASLEY, JJ., dissent.

McMURRAY, P.J., concurs in the judgment of the dissent only.

BEASLEY, Judge, dissenting.

"Where 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." OCGA § 51-3-1.

Defendant's manager knew that a suspicious person had peeped in the lounge the week before and had been chased away, that a person fitting the same description and wearing the same distinctive cap had been loitering on the premises for no apparent legitimate purpose and had to be told twice to leave the property. He knew that he could not prevent the person's return to accomplish whatever purpose that person had in mind and which the manager had frustrated; he knew that the loiterer's purpose was not as had been articulated when questioned, because he had said he was waiting for someone but when pressed could not identify anyone. He knew that instead, the person had muttered as he walked away, "You'd think somebody was going to rob somebody." He knew also that the person had a brown paper bag in his hand, containing the manager knew not what. The manager knew that the security guard, who was hired several years previously to patrol the entire premises because of two armed robberies, would not be on duty until at least three hours later.

If the two women had known what defendant's manager knew, they would have been on notice to protect themselves and take proper precautions to assure their safety as they went to an unguarded area. Then when they saw the man they could have gone back to the front desk and reported it so that further investigation into the man's presence could be undertaken or they could be escorted to their room or other safety measures followed.

There was thus some evidence of defendant's superior knowledge of a danger of potential harm due to the unexplained presence twice of a suspicious male which was not conveyed to the guests. Whether or not the knowledge was sufficient to make harm foreseeable and thus to give rise...