Whitfield v. Tequila Mexican Rest. No. 1.

• Decision Date: 05 September 2013
• Docket Number: No. A13A1139.,A13A1139.
• Citation: 323 Ga.App. 801,748 S.E.2d 281
• Parties: WHITFIELD v. TEQUILA MEXICAN RESTAURANT NO. 1.
• Court: Georgia Court of Appeals

323 Ga.App. 801

748 S.E.2d 281

WHITFIELD

v.TEQUILA MEXICAN RESTAURANT NO. 1.

No. A13A1139.

Court of Appeals of Georgia.

Sept. 5, 2013.

Corey M. Stern, Natalie S. Woodward, Roswell, for Appellant.

Pamela Newsom Lee, Atlanta, for Appellee.

McMILLIAN, Judge.

Don Anthony Whitfield was stabbed outside the Tequila Mexican Restaurant No. 1, Inc. (“Tequila”) and brought this lawsuit against his assailant Paul Leonard Aydelotte and the restaurant. The basis for Whitfield's premises liability and gross negligence claims against Tequila was that Tequila had continued to serve Aydelotte alcohol, despite knowing that Aydelotte was drunk, belligerent, and harassing other customers. Whitfield also claimed that Tequila had negligently hired and supervised its employees and that Tequila had failed to provide adequate security. After discovery, the trial court denied Whitfield's motion for sanctions for spoliation and granted summary judgment for Tequila on all claims. Finding no error, we affirm.

Viewing the evidence in the light most favorable to the nonmovant on summary judgment,¹ on September 12, 2010, Whitfield was having a celebratory dinner with his girlfriend and her family at the Tequila Mexican Restaurant in Dallas, Georgia. Upon their arrival, the group was seated near another patron, Aydelotte, who by that time had consumed an unknown quantity of alcoholic beverages. Aydelotte began harassing a female member of the group, asking if she was fertile and also called another member of the group a “freak.” As a result, Whitfield and other members of his group asked to have their table moved away from Aydelotte, which they were able to do, and complained to the acting manager Luis Martinez. Other patrons also observed Aydelotte cursing and slurring his words and complained to restaurant employees. Even after these complaints, Tequila continued to serve alcohol to Aydelotte.

After the group moved to another table, Aydelotte continued to harass the group, cursing after a two-year-old child began to cry and telling the group to keep her quiet or he would do it. As a result of this behavior and customer complaints, the acting manager spoke to Aydelotte and asked him to leave. Aydelotte got up to leave, but refused to pay his bill and acted somewhat aggressively. This made the acting manager “a little afraid” of Aydelotte but he did not believe that Aydelotte was a threat or dangerous to anyone in the restaurant. Neither the acting manager nor the general manager could recall any other situation in which a drunk and belligerent patron had been asked to leave the restaurant or any crime at the restaurant other than some customers walking out without paying their bills. They also had not had any previous experience with Aydelotte. Neither Whitfield nor members of his group were aware of any other crimes or violence occurring at the restaurant.

Before Aydelotte was asked to leave, two women from the group, along with the toddler, went outside so they could get better cell phone reception and called 911 to report Aydelotte. As Aydelotte was leaving, he saw the women outside and started calling them names for reporting him to the police. Observing the commotion, Whitfield left the restaurant to protect the women. Once outside, Whitfield and Aydelotte walked toward each other with Whitfield telling Aydelotte that he did not “know who the f-k [he was] messing with.” Whitfield then threw the first punch and after two punches, Aydelotte stabbed him.

In discovery, Whitfield learned that Aydelotte's electronic ticket had been erased from the computer system on the night of the incident and sought sanctions for spoliation, claiming that the ticket would have shown how long Aydelotte had been at the restaurant and how much alcohol Aydelotte had been served, thereby supporting that Tequila had knowledge of Aydelotte's dangerous propensities. Tequila, on the other hand, asserted that it was their general practice to erase tickets from the system for those customers who had walked out and failed to pay their bills, as a means of “voiding” the tickets.

1. At the outset, we take this occasion to remind counsel about the page limitations set out in Court of Appeals Rule 24(f). Accordingly, we strike pages 16 to 27 of Appellant's reply brief and have not considered the argument contained on those pages in this appeal.

2. Turning first to Whitfield's negligence claims under theories of premises liability and failure to provide adequate security, we review a denial of summary judgment under a de novo standard of review. See Thornton, 297 Ga.App. at 132, 676 S.E.2d 814. The touchstone of any negligence claim is that “the defendant did something that it should not have done or failed to do something that it should have done pursuant to the duty owed the plaintiff.” (Citation omitted.) Parker v. Hovers, 255 Ga.App. 184, 186(1), 564 S.E.2d 795 (2002). Here, Tequila is the owner or occupier of the premises upon which Whitfield was injured, and as such, owes invitees like Whitfield the duty to exercise ordinary care “in keeping the premises and approaches safe.” OCGA § 51–3–1. But “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.” Snellgrove v. Hyatt Corp., 277 Ga.App. 119, 123(3), 625 S.E.2d 517 (2006). See also Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 785–786, 482 S.E.2d 339 (1997) (“A landlord's duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal acts.”) (emphasis in original); Lau's Corp. v. Haskins, 261 Ga. 491, 492(1), 405 S.E.2d 474 (1991) (“If 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.’ ”) (citation omitted).

But “[e]ven if an intervening criminal act may have been reasonably foreseeable, [ ] the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citations and punctuation omitted; emphasis omitted.) Cook v. Micro Craft, 262 Ga.App. 434, 438(1), 585 S.E.2d 628 (2003). See also Snellgrove, 277 Ga.App. at 124, 625 S.E.2d 517 (quoting Cook); Rappenecker v. L.S.E., Inc., 236 Ga.App. 86, 88(2), 510 S.E.2d 871 (1999) (“The basis of liability is a proprietor's superior knowledge of the existence of a condition that may subject an invitee to an unreasonable risk of harm.”). As recently explained in B–T Two, Inc. v. Bennett, 307 Ga.App. 649, 706 S.E.2d 87 (2011) (physical precedent only), ² these two principles of reasonable foreseeability and the proprietor's superior knowledge “guide our consideration of the question [of whether an owner or occupier has breached its duty to keep an invitee safe from the criminal act of a third party] and limit the circumstances in which the law imposes liability for the failure to protect against such criminal act.” Id. at 654–655, 706 S.E.2d 87.

Whitfield has failed to come forward with evidence from which a jury could have concluded that a landowner in Tequila should have reasonably foreseen Aydelotte's assault. No evidence exists in the record of similar criminal activities occurring at the restaurant or in the parking lot. See Sturbridge, 267 Ga. at 786, 482 S.E.2d 339 (“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.”); Aldridge v. Tillman, 237 Ga.App. 600, 604(2), 516 S.E.2d 303 (1999) (“A criminal act by a third-party may be foreseeable if the incident causing the injury is substantially similar in type to previous criminal activities occurring on or near the premises at issue ...”). Nor is there any indication that Tequila or its employees had any previous encounters with Aydelotte such that they should have been put on notice of his violent tendencies. See Dowdell v. Krystal Co., 291 Ga.App. 469, 472, 662 S.E.2d 150 (2008) (restaurant could not have reasonably foreseen altercation by cashier when cashier did not have a criminal record and cashier had not argued, much less struck, any customers during employment).

Implicitly recognizing the dearth of any similar criminal conduct to put Tequila on notice, Whitfield asserts that Tequila had superior knowledge of the amount of alcohol that Aydelotte had consumed and was informed that Aydelotte was boisterous and harassing other customers, and therefore should have reasonably anticipated that Aydelotte could become violent. But even if we assume that it is common knowledge that an intoxicated person may become violent, that knowledge of the danger is imputed to both Whitfield and Tequila. See B–T Two, 307 Ga.App. at 656(3), 706 S.E.2d 87 (victim and restaurant had equal knowledge that “when alcohol is served, some people may become intoxicated and [ ] when people become intoxicated, some of them may become violent”); Aldridge, 237 Ga.App. at 604–605, 516 S.E.2d 303 (previous threats by assailant while intoxicated did not put host on notice that assailant would attack victim with deadly weapon).

Moreover, we do not find that Tequila's superior knowledge about the amount of alcohol Aydelotte consumed salvages Whitfield's claim. The issue is whether Tequila had superior knowledge of the “existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citation and punctuation omitted.) Vega v. La Movida, Inc., 294 Ga.App. 311, 315(2), 670 S.E.2d 116 (2008). In this case, that condition is the propensity of Aydelotte to become violent when intoxicated, not his blood alcohol level, and the record reflects that...