DOE v. BRIARGATE APARTMENTS, INC.
A97A0328
Court of Appeals of Georgia
JULY 16, 1997
489 SE2d 170
POPE, Presiding Judge.
3. With respect to Jones’ claim for fraud, I agree with the majority‘s analysis in Division 2 that Jones is not entitled to recover.
I am authorized to state that Chief Judge Andrews, Presiding Judge McMurray and Presiding Judge Pope join in this special concurrence.
DECIDED JULY 16, 1997.
Andrew & Threlkeld, Reid A. Threlkeld, for appellant.
Joseph M. Hall, for appellees.
DOE v. BRIARGATE APARTMENTS, INC.
POPE, Presiding Judge.
Plaintiff Jane Doe was beaten, raped and robbed in her apartment by an intruder who had entered the apartment through a second-story window after prying part of a window pane away from the window and then removing a piece of glass from the window. She filed suit against the owner of her apartment complex, defendant Briargate Apartments, Inc., аlleging that defendant was liable to her for failing to keep its premises reasonably safe by providing adequate security, see
1. In its motion for summary judgment, defendant argued that it owed no cognizable duty to plaintiff under
“The 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 brеach of duty to ‘exercise ordinary care in keeping the premises and approaches safe.’
In this case, the record demonstrates that plaintiff had herself been the victim of a previous attack in defendant‘s aрartment complex. Specifically, the record shows that while attempting to leave her apartment, plaintiff was confronted by a man who forced her back into the apartment, then assaulted and robbed her. It is undisputed that plaintiff reported this prior incident bоth to police and to defendant‘s management. Although defendant argues that as a matter of law the prior incident cannot be viewed as substantially similar or as creating any issue as to the foreseeability of the subsequent criminal attack on plaintiff because plaintiff did not report that any sexual assault was involved in the prior incident, we find no merit to such an argument.
“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 locаtion, 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
Here, both the prior incident and the incident in question involved forceful assaults and robberies occurring within close proximity to one another, and they both involved breach of, or entry into, the confines of an apartment. As such, we conclude that the prior incident was sufficient to give rise to a triable issue regarding whether or not defendant had the duty to exercise ordinary care to safeguard its tenants against the foreseeable risks posed by the prior attack, assault and robbery of plaintiff in her own apartment.
Contrary to defendant‘s assertion, to the extent that a jury may determine that defendant owed such a duty to plaintiff, the jury might also determine that defendant breached its duty under the facts presented here. While defendant had hired “courtesy officers” who in some part pаtrolled the apartment complex, there is some question as to whether they were patrolling the complex for the safety of the residents or merely to protect property. To the extent a jury could conclude that defendant had instructed the courtesy officers only to protect property, the jury could conclude defendant had failed to provide the security needed to protect its tenants from attacks and intrusions such as that suffered previously by plaintiff. From the facts of this case, a jury also could cоnclude that the length and extent of any patrols conducted for the tenants’ safety were inadequate in light of defendant‘s knowledge of the previous attack on plaintiff and the very fact that the patrols of the premises on the date in question did not discover any intrudеr on a ladder trying to enter plaintiff‘s apartment, or even the ladder itself after the intruder allegedly had made his entry. See Matt v. Days Inns of America, 212 Ga. App. at 796. And there is evidence from which a jury could conclude defendant breached its duty by failing to advise the courtesy officer on patrol on the datе in question about the previous attack on plaintiff.
Additionally, contrary to the dissent‘s and defendant‘s assertion otherwise, the superior/equal knowledge rule does not preclude plaintiff from recovery under the facts of this case. That rule bars recovery only wherе the “plaintiff, knowing of the danger, could have avoided the consequences of defendant‘s negligence with the exercise of ordinary care.” Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 159 (342 SE2d 468) (1986); see O‘Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (390 SE2d 248) (1990). Here, there does not appear to be any action plaintiff could have taken to avoid the consequences of defendant‘s alleged negligence in failing to provide adequate security even though plaintiff was herself aware of the risk of criminal attack in the complex. And the record shows that she did in fаct take some steps for her own safety by having her door locks changed after the
Accordingly, we reverse the trial court‘s grant of summary judgment to defendant as to plaintiff‘s claim for recovery premised on
2. Because a jury could conclude that defendant was not providing any security for its residents on the date plaintiff was rapеd, even though it had actual knowledge of the prior attack on plaintiff, it also could conclude that defendant was demonstrating an “entire want of care which would raise the presumption of conscious indifference to consequences.”
3. We find no merit, however, as to plaintiff‘s assertion that summary judgment was improper regarding her claim that defendant breached its duty to her under
Contrary to plaintiff‘s assertion, there also does not appear to be any competent evidence that defendant оr its agents failed to properly maintain its premises by leaving its ladder or any other tools lying around the premises whereby they could be used by the intruder to enter plaintiff‘s apartment. First, we note that there is no evidence that defendant or any of its agents owned the ladder in question or left it out. Although it is true that a police officer who investigated the incident stated that he was told the ladder belonged to defendant by someone, it is clear from the officer‘s testimony that he was unsure who had told him this and that it may have been another police оfficer. Such equivocal testimony cannot be said to constitute evidence of an admission against interest by one of defendant‘s agents under
Contrary to plaintiff‘s assertion, there also is no evidence that
In light of the above, plaintiff clearly has failed to dеmonstrate the existence of any material fact which would support her claim that defendant breached any duty to her under
Judgment affirmed in part and reversed in part. McMurray, P. J., and Johnson, J., concur. Beasley and Smith, JJ., concur in the judgment only. Andrews, C. J., and Blackburn, J., concur in part and dissent in part.
BLACKBURN, Judge, concurring in part and dissenting in part.
I concur with the majority‘s affirmance of the trial court‘s grant of the defendant‘s motion for summary judgment with regard to plaintiff‘s claims under
In the present case, because the plaintiff had been attacked in her apartment less than six weeks prior to the present attack, she had equal, if not superior, knowledge of the foreseeability of criminal activity in the complex. The dеfendant‘s duty in a premises liability case is still based upon its superior knowledge of the criminal activity in the complex. Where the plaintiff has equal knowledge of such activity, she cannot merely sit back and demand protection. We are dealing here with an independеnt criminal act of a third party. The law has traditionally limited a landlord‘s liability for independent criminal acts, because the injury was not directly caused by the acts of such landlord, but rather by the actions of the criminal. At best in such cases, the landlord has failed to prevent the injury аs has the victim in this case.
I am authorized to state that Chief Judge Andrews joins in this opinion.
DECIDED JULY 16, 1997.
William N. Robbins, for appellant.
Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellee.