Woods v. Kim

• Court: Georgia Court of Appeals
• Writing for the Court: ANDREWS; BIRDSONG, P.J., and BEASLEY
• Citation: Woods v. Kim, 429 S.E.2d 262, 207 Ga.App. 910 (Ga. App. 1993)
• Decision Date: 23 February 1993
• Docket Number: No. A92A2006,A92A2006
• Parties: WOODS et al. v. KIM.

Page 262

429 S.E.2d 262

207 Ga.App. 910

WOODS et al. v. KIM.

No. A92A2006.

Court of Appeals of Georgia.

Feb. 23, 1993.

Reconsideration Denied March 18, 1993.

Certiorari Denied June 25, 1993.

Burge & Wettermark, Michael J. Warshauer, Atlanta, for appellants.

Goodman, McGuffey, Aust & Lindsey, Leigh M. Wilco, Constance C. Russell, Atlanta, for appellee.

ANDREWS, Judge.

While an invitee on the premises of appellee's store, Ronald Woods was the victim of a criminal attack. He filed this action claiming appellee failed to exercise ordinary care to keep the premises safe, and failed to provide adequate security for protection of business invitees. Mr. Woods along with his wife, who joined in the action to bring her loss of consortium claim, appeal from the order of the trial court granting summary judgment in favor of appellee.

As he exited from the store after making his purchase, Mr. Woods was confronted by an assailant armed with a sawed-off shotgun, who demanded money, then shot him. The complaint, which states a premises liability claim under OCGA § 51-3-1, alleges that appellee knew or should have known of unsafe conditions on the premises which gave rise to the attack, and that security was inadequate to prevent the attack.

"A proprietor's duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. The proprietor is not the insurer of the invitee's safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. 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." (Citations and punctuation omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 492(1), 405 S.E.2d 474 (1991); Winn-Dixie Stores v. Nichols, 205 Ga.App. 308, 310(1), 422 S.E.2d 209 (1992). The assailant was unknown to Woods. Although appellee recognized the gunman as one of many high school students who frequented the store, there was no evidence that appellee had previously known the assailant to be violent, or to carry a weapon of any kind. Nevertheless, "[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 Authority, 203 Ga.App. 235, 237(1), 416 S.E.2d 776 (1992); Grandma's Biscuits v. Baisden, 192 Ga.App. 816, 817(1), 386 S.E.2d 415 (1989).

The record reflects that appellee's store is located in a high crime area, and numerous crimes occurred on the premises prior to the present assault. However, most of those crimes were against the store itself. Of those that could have arguably involved an attack of any kind upon a customer of the store: a clerk of the store struck a woman in an argument over correct change; a woman was cut in a domestic dispute with her boyfriend; a man was beaten with a pipe when he refused to say where some of his friends had allegedly gone with the assailant's money; and a purse was snatched without the use of a weapon. None of these prior criminal acts was substantially similar to the attack on Woods. There is no evidence appellee knew or should have known that conditions on the premises put Woods at risk of being robbed and shot. As a matter of law, appellee owed no duty to protect Woods from the attack at issue. Savannah College of Art & Design v. Roe, 261 Ga. 764, 765-766, 409 S.E.2d 848 (1991); Nichols, supra, 205 Ga.App. at 310, 422 S.E.2d 209; Shell Oil Co. v. Diehl, 205 Ga.App. 367, 368, 422 S.E.2d 63 (1992); Gay v. Franchise Enterprises, 203 Ga.App. 870, 871-872, 418 S.E.2d 135 (1992).

Since appellee did not know of the dangerous conditions giving rise to the present attack, and knowledge of the conditions "would be necessary, in order to show the existence of...