*1 implication is that merchants) invitees. insurers of their similar hazards, apparent of how regardless slightest the there even (and known or un- all hazards observer, hazard thus if the the casual invitee, host the known) the attention especially called to the existence only because of invitee and insures invitee can awareness to majority, its According to the hazard. willing go I am not jury. of fact for question be made a always place or to none exists of fact where find a as to so far to meet. impossible a merchant burden on only ignores, Moreover, majority the result reached it is true that emasculates, summary judgment. While the law but in- are where the facts normally are issues safety by failing her ignored injured party escapable that caution, the trial court appropriate she exercised use even before resolu- and even demanded that authorized presented facts Brown- summary judgment. See controversy tion of the means of 580); Sears, ing & Roebuck 178). v. A. R. Winter Wakefiled issues genuine were I would conclude there Accordingly, correctly granted fact and the trial Abercorn. Presiding to state that I am authorized respectfully dissent. Beasley in this dissent. Deen, Judge Sognier join
Judge Judge 11, 1985 July Gastin, appellant. R. Wade Mulherin, Brennan, appellee. Joseph A.
Joseph al. v. HUTSON et 70210. COLLIE Deen, Presiding Judge. Franklin, escaping shot and killed one
Claude Collie was he from sheriffs felon, had wrested using magnum a .357 which shooting attempt shortly before deputy a successful during against, brought wrongful death incident. Collie’s widow sheriff) (the Camp- deputies King and alios, appellees ter Hutson of her husband’s death bell, alleging that custody while him to appellees’ negligence him to and from dentist’s Campbell transporting were King office. summitry granted Court County Superior
The Cobb they these three defendants on the negligent; wilfully, maliciously; had not corruptly, acted or escapee’s unforeseeable; act was the defendants neither anticipated killing any way have nor had in been con- with it. nected rulings enumerates as error the trial court’s *2 that, law, (1) aas matter the death was not proximately caused appellees’ in escape, appel- Franklin to and lees were negligent with reference to the events subse- occurring quent escape, including Held: Collie’s death.
1. persuaded We are in record the instant case that there was sufficient evidence authorize appel- the trial court to find that lees had expect no reason any the prisoners transported day dentist’s office on the of the escape and fatal shooting would attempt escape, appellees’ conduct did not constitute negligence as a matter of Appellant’s law. first enumeration is there- fore without merit.
2. “Generally, an independent, act party, without which the injury occurred, would not have will be treated as the proximate . injury any cause of the superseding neg- ligence of the . defendant. the intervening criminal act is a [unless] consequence negligent the defendant’s Hercules, ...” Lewis, (309 Inc. v. 168 Ga. 689 SE2d [act]. 865) (1983); 51-12-8; see 51-12-9; also OCGA Henderson v. Dade §§ Co., (28 Coal Although Georgia under law questions of negligence and ordinarily cause are plain and cases by the court decided matter of law. Inc. v. supra; Kennedy, Williams v. (240 240 Ga. Dawson, 163 (1977); Bussey SE2d (160 SE2d In such plain inquiry cases “[t]he whether the defendant’s conduct constituted a cause in fact injury, but rather whether the causal connection between that con- duct and injury is too remote law to countenance a recov- ery.” Hercules, Lewis, supra 689; Wills, at McAuley v. 258) (1983); Henderson v. Dade Coal supra.
Our scrutiny of the record in the instant as well as of rele- law, vant and case leads us to with the trial agree court’s pattern conclusion that judice sub the case is more analo- gous to of, Henderson v. supra, Dade Coal than to that e.g., Bradley 693) (1982) (hospital gave despite mental pass unrestricted actual knowl- edge of ex-wife). violent designs tendencies and homicidal towards The trial court holding conduct, was correct in appellees’ while a cause in fact of the appellant’s death of was “too remote be the recovery basis . .” 51-12-8; 51- see also OCGA § 12-9. supra, find in Divisions and holdings light In our criteria for sum- compliance with the judgment below is (c). therefore affirm We 9-11-56
mary judgment set out OCGA summary judgment awarding of the trial court J., Birdsong, J., P. Banke, McMurray, C. Judgment affirmed. J., JJ., Benham, Beasley, concur. and J., Carley, Sognier, Pope, dissents. dissenting. Judge,
Beasley, undis ‘To entitle the defendant negate evidence pleadings puted facts as disclosed recovery and under plaintiff to entitling one essential element least theory pleadings from the and evidence every fairly drawn [cits.] an essential ele necessary, or nonexistence prove negative v. Trans Waller plaintiff.’ affirmatively ment asserted 1) (1980), quoted Imports, world Ga. Housing Svcs., 171 Neighborhood applied in Jordan v. Atlanta said: (1984), it was further App. 467, wherein *3 defendant, all evi “On motion for made including their [plaintiffs] position, dence most to favorable be party The opposing will true.” Id. testimony, be taken as and all favorable inferences. benefit of all reasonable doubts given the (1) Eiberger v. court, ap- thereby ruling of the trial
The court here sustains the duty had to the effect that proving legal that court’s conclusion (or further, inac- that their actions been breached defendants and tions) hus- plaintiff’s cause of the death were not elements essentially of the four Thus have at three band. issue “ ‘(1) A Georgia: legal necessary to a cause of action for by the law for the a of conduct raised duty to conform to standard (2) harm; a breach unreasonable risks protection of others standard; between legally causal connection of this a attributable Bradley Center v. .’ resulting injury; . . the conduct and the Wessner, who custody prisoner of a breach, the sheriffs had duty
As to for armed possible a conviction yet facing not tried but was been and a years’ imprisonment five robbery a minimum sentence of with deputies were years 16-8-41. Two twenty maximum of or life. OCGA § community dentist’s him others out into taking and three prisoner was deputies knew office near a residential area. deputy’s one of the felony. a did with charged with After he not, de- and others were certain actions were taken magnums, .357 prisoner warning the fendants, respect recapturing to community. element,
With respect duty to the there are of fact to by jury upon be resolved a unfolding all of the evidence. could say not as a matter law that it was not foreseeable that prisoner try to under the circumstances or that a (and succeed) doing in so try wresting gun would not to custodians, from one of his two or that he would use the while gun escaping. Nor could I say as a matter of law these events were not foreseeable if departmental rules procedures followed. There was evidence that were not adhered to. Negligent responsibility may attention to itself render dire conse- quences foreseeable.
Whether duty the sheriffs owed a plaintiff’s of care to who as a member general public proximity lived close dentist’s office where the person being accused of a felon being taken, remains to be seen. Even if no specific legal duty imposed, in Bradley articulated applied: legal duty in this general duty case arises out of the one owes to all the world not to them to an unreasonable risk of . . harm . ‘negligence is conduct which falls the standard below established law for protection of others against unreasonable risk of harm.’ Restatement, Torts, 2d, 282.”
Much is made here person third is the one who actually shot Mr. Collie. But that does not take the be- occurrence yond scope legal duty defendants’ general as sheriffs “as here: rule, there is no persons to control the pre- conduct vent them from causing physical harm to others. [Cits.] [H]owever, .. exceptions one of the that rule here be- special relationship which existed between [the sheriffs] and [plaintiff’s decedent aas member of the public]: immediate ‘One who person takes of a third whom he knows or should know likely bodily to cause harm to others controlled under a duty to exercise reasonable care control the third prevent him doing *4 such harm.’ supra at 201- [Cits.]” case, 202. In that jury plaintiff verdict for was affirmed because it the mental kill thus his release negligent.
In an analogous, but much less compelling setting than exists here, the foreseeability of criminal acts a third affects liability proprietors premises: “if wrong- (original defendant doer) grounds had reasonable apprehending for that such criminal act would be committed .’’he from liability would not be “insulated by the intervention of an illegal proximate act which is the Bank, C S McClendon v. & Nat. injury.” App. liability Tort is proper cases “in which the criminal acts be foreseeable.” at 202. jury proximate cause. This the element ‘[T]he reaches also foreseeability, of . . properly pass on the [and] here involved.” causation,’ questions well as other tervening (1975). 416) There it Inc., Lay Munford, v. foreseeability and the oí reasonable was further said: or- to exercise now OCGA imposed by 51-3-1] [there this circumstances of plaintiff dinary protect care to summary adjudication than for determination rather jury’s at 341. courts.” Id. of the particular duties same
I would hold that the thereof, whether, in the exercise failed sheriffs and to ex of the Mr. Collie’s death. One proximately caused such cause, proximate remoteness, considering when rule of ceptions to the for “had reasonable is whether the custodian Hender committed.” would be apprehending that [the tort] 251) (1897). As ele son v. Dade Coal cause, Wyatt, Stern v. ment of see further (1976). certainly on the (1) (231 519) can is a do not think this questions of remoteness. 51-12-8. may make in which the court palpable case” “plain, Wy v. Stern elements. as a matter of law as these a determination att, supra. Cf. (1983). July Jackel, Coots, for appellant. L. James D.
Dana Prosser, Jerry Gentry, L. Jordan WEST, LTD.
70217. HENDERSON COLONY (332 SE2d
Sognier, Judge. Pa- dispossessory
Colony brought Ltd. verdict, court entered the trial jury’s Based on the tricia Henderson. in Colony West’s apartment possession appeals. favor. Henderson by granting judgment erred Appellant contends the trial court appellee’s lease termination appellee’s favor because notice of require- apartment did not meet possession of the
of demand for ments of federal law. project operated in a owned and housing is a tenant