Woodall v. RIVERMONT APARTMENTS LTD.

• Decision Date: 09 July 1999
• Docket Number: No. A99A0274.,A99A0274.
• Citation: 239 Ga. App. 36,520 S.E.2d 741
• Parties: WOODALL v. RIVERMONT APARTMENTS LIMITED PARTNERSHIP et al.
• Court: Georgia Court of Appeals

520 S.E.2d 741

239 Ga. App. 36

WOODALL v. RIVERMONT APARTMENTS LIMITED PARTNERSHIP et al.

No. A99A0274.

Court of Appeals of Georgia.

July 9, 1999.

James A. Shea, Jr., Atlanta, for appellant.

Barnes, Browning, Tanksley & Casurella, Michael K. Jablonski, Atlanta, for appellees.

RUFFIN, Judge.

Reginald Woodall was shot in the leg during an armed robbery at Rivermont Apartments. Woodall sued Rivermont Apartments Limited Partnership, its general partner, Brown-Rivermont, Inc., and the property manager, AB Property Management, L.P., alleging that they negligently failed to keep the premises safe. The trial court partially granted defendants' motion in limine to exclude evidence of prior crimes and suspicious activity at the apartment complex. We granted Woodall's application for interlocutory review. For the reasons discussed below, we affirm the trial court's ruling in part and reverse in part.

The admissibility of evidence, including a ruling on a motion in limine, is a matter resting within the sound discretion of the trial court. Accordingly, we will not disturb the exercise of that discretion absent evidence of its abuse. See Stewart v. State, 210 Ga.App. 474, 476(6), 436 S.E.2d 679 (1993). However, in determining whether the trial court has abused its discretion, we must consider our Supreme Court's admonition that

the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

(Citation omitted.) Andrews v. Wilbanks, 265 Ga. 555, 556, 458 S.E.2d 817 (1995). Moreover, "[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value; evidence of doubtful relevance or competency should be admitted and its weight left to the jury." Johnson v. State, 236 Ga.App. 61, 65(3)(b), 510 S.E.2d 918 (1999).

At about 8:00 p.m. on December 20, 1993, Woodall parked near the apartment complex's mailbox area and walked over to get his mail. The mailboxes were located next to the tennis courts, which were bordered by large bushes. As Woodall returned to his car, a man with a gun emerged from the bushes and told Woodall to "give it up." Woodall started to run toward his car, and the gunman shot him in the leg. The gunman demanded that Woodall give him his money and wallet, and Woodall did so. The gunman unsuccessfully attempted to steal Woodall's car, but fled from the scene on foot after a police officer appeared.

Prior to trial, Woodall discovered evidence of twenty separate property crimes that had occurred at the apartment complex in the previous year, including eight burglaries of apartment units, nine instances where cars in the parking lot were either broken into or stolen, and three instances where mailboxes at the apartment complex were broken into. In addition to these property crimes, there were two other incidents involving encounters by a resident or security guard with suspicious individuals. In granting defendants' motion in limine to exclude evidence of these incidents, the trial court examined each incident separately and concluded that each individual incident was not sufficiently similar to the attack on Woodall to render it admissible. The trial court also excluded certain internal reports of defendants referencing these property crimes. The court did not consider whether the volume of crime, alone or combined with other factors, affected the question of admissibility, but simply considered each prior incident separately. However, the court stated in its order that it had "misgivings that the jury will not have a fair and accurate picture of the condition of the Rivermont [Apartments] at the time of trial." The court denied defendants' request to exclude evidence relating to violent crimes occurring in the vicinity of the apartment complex.

1. In Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785-786, 482 S.E.2d 339 (1997), the Supreme Court noted that

[t]he general rule regarding premises liability is that a landlord does not insure tenants' safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to "exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. A landlord's duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal acts. The difficulty arises in determining which criminal acts are foreseeable.... [T]he 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. In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What 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. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury's determination rather than summary adjudication by the courts.

(Citations and punctuation omitted; emphasis in original.) Id. at 786, 482 S.E.2d 339. The Supreme Court in Sturbridge expressly rejected the proposition that "a landlord's knowledge of prior criminal acts against property cannot establish the foreseeability of a brutal sex crime as a matter of law." Id. at 786, 482 S.E.2d 339. Thus, the Court held that the landlord's knowledge of two prior burglaries of unoccupied apartments created a triable issue of fact as to whether the landlord "should have reasonably anticipated the risk of personal harm to a tenant which might occur in the burglary of an occupied apartment." Id. at 787, 482 S.E.2d 339. In so holding, the Court noted that "the very nature of burglary suggests that personal injury may occur during the unauthorized entry into the dwelling house of another." Id. at 787, n. 1, 482 S.E.2d 339.

Eight months after its decision in Sturbridge, the Supreme Court again confronted the issue of whether crimes against property might make a risk of personal injury to a tenant foreseeable. In Doe v. Prudential-Bache/A.G. Spanos Realty Partners, L.P., 268 Ga. 604, 492 S.E.2d 865 (1997), a tenant was robbed and raped after parking her car underneath her apartment building. Before this incident, a number of property crimes had occurred in the parking garage, including thefts of bicycles, thefts from automobiles, and vandalism. The Supreme Court held that these prior property crimes did not create a factual issue regarding whether the landlord could reasonably foresee that a violent sexual assault might occur on the premises. Id. at 606, 492 S.E.2d 865. The Court distinguished its recent decision in Sturbridge, stating that

[f]irst, the "very nature" of the thefts and acts of vandalism committed in this case do not "suggest that personal injury may occur." Further, because the parking garage where the prior crimes occurred is a common area, used by all the tenants and their guests, there is only the potential for a tenant to confront a thief in an isolated situation, and, even if such an encounter occurs, there is always the possibility that the isolation could be brief. In contrast, a tenant encountering a burglar in the privacy of her apartment inevitably will be isolated with the intruder, and will have little chance of a third party interrupting the encounter. Finally, a tenant generally will have opportunities for escaping an isolated encounter with a thief in a common area, but will not have similar opportunities when encountering a burglar in her apartment.

(Footnote omitted.) Id.

Thus, although Sturbridge rejected the proposition that the occurrence of property crimes may never render the occurrence of violent crimes foreseeable, the Court in Doe appears to have restricted the applicability of Sturbridge. Doe appears to establish the following principles: (1) a crime against property will make an act of violent crime foreseeable if the "very nature" of the property crime "suggest[s] that personal injury may occur"; and (2) if an individual who encounters someone committing such a property crime has "opportunities for escaping" the encounter, then the occurrence of the property crime, in and of itself, may not render it foreseeable that a violent crime will occur.

In this case, it does not appear that any of the property crimes, standing alone, would raise an issue of foreseeability under the standards set forth in Sturbridge and Doe. The trial court clearly believed that these cases required it to analyze each prior crime independently to determine...