Jane Doe I brought suit against Young Women’s Christian Association of Greater Atlanta, Inc. (‘YWCA”) and its employee, Lythea Oliver-Gaither, alleging that her then four-year-old daughter, Jane Doe II,
On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
(Citations and punctuation omitted.) Campbell v. Landings Assn.,
So viewed, the evidence shows that the Shelter House is a transitional family facility operated by the YWCA where homeless women and their children can live for a temporary period. The Shelter House has a common area on the first floor, and five separate rooms on the second floor for each of the families who live there. The separate rooms have partition-type dividing walls which leave a two-foot gap between the top of the wall and the ceiling.
Doe I and Doe II moved into the Shelter House in July 2008. Doe I and her children had their own room with a lock on the door. Doe I signed documents, including the Resident Handbook and the Resident Intake Form that included a release of liability for injuries arising out of her and her children’s occupancy or participation in sponsored activities. Doe I also signed a Shelter Agreement and Liability Release, which provided that, in consideration of childcare and temporary housing for herself and her children, as “listed individually within this file,” Doe I released and discharged the Shelter House and its employees from any responsibility and liability for injury, illness and any claims of any sort arising in connection with Doe I’s temporary lodging.
The Resident Handbook provides that no child may stay onsite without his/her parent, and that parents are fully responsible for the safety, care and supervision of their children at all times. Nevertheless, the Shelter House allows parents to enter into written babysitting agreements with other parents. Shelter House staff members are also allowed to care for residents while their mothers are away from the shelter; however, there were no written rules or procedures for employees providing such care.
On August 28, 2008, Oliver-Gaither, who is a shelter advocate at the Shelter House, verbally agreed to watch then four-year-old Doe II for an unspecified time while Doe I went to meet a prospective landlord about an apartment. This was the first and only time Oliver-Gaither watched either of Doe I’s children.
Oliver-Gaither kept in constant contact with Doe II at first. When Doe II started acting out, Oliver-Gaither called Doe I to tell her that she needed to return to the Shelter House. When Doe I did not immediately return, Oliver-Gaither called Doe I again because Doe II was still acting up. Oliver-Gaither then sent Doe II upstairs to her room. Oliver-Gaither repeatedly checked on Doe II upstairs, and Doe II was never out of Oliver-Gaither’s sight for more than ten to fifteen minutes at a time.
When Doe I returned to the Shelter House, she found one of her condom wrappers in the trash can in one of the upstairs bathrooms. When asked about the condom wrapper, Doe II said that a ten-year-old boy who lived at the Shelter House put the condom on his private part and tried to put his private part in her. Doe I called the police. The responding officer asked Doe I and Doe II about the incident, and then took them to the hospital. The hospital emergency room report showed no sign of recent trauma.
Doe I subsequently filed suit against the YWCA and OliverGaither, alleging that the YWCA and Oliver-Gaither breached their duty to properly supervise Doe II; the YWCA failed to properly supervise and train Oliver-Gaither; and the YWCA failed to keep its premises safe and secure to protect
The trial court denied Doe I’s motion for partial summary judgment, and granted summary judgment to the YWCA and OliverGaither, finding that the liability release is enforceable and barred both Doe I and Doe II’s claims against the YWCA and Oliver-Gaither. The trial court also found that Doe I’s premises liability claim failed because the incident was not foreseeable; Doe I’s negligent childcare supervision claim failed because Doe I did not show that OliverGaither had knowledge that the ten-year-old had a proclivity or propensity for sexual assault; and Doe I’s claim for negligent training/supervision of Oliver-Gaither failed because no evidence showed that this type of incident had previously occurred while a YWCA employee was watching a resident’s child. This appeal ensued.
1. Doe I contends that the trial court erred in granting the YWCA and Oliver-Gaither’s motion for summary judgment because factual questions remain regarding her claims for negligent supervision of a child. We disagree.
To establish a claim for negligence in Georgia, a plaintiff must show: (1) a legal duty to conform to a standard of conduct raised by law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) loss or damage to plaintiff’s legally protected interest.
(Citations and punctuation omitted.) Walker v. Aderhold Properties,
the measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard. The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm. Thus, as in every negligence case, the standard of care in a negligent childcare supervision case is that of a reasonably prudent person under like circumstances.
(Citations and punctuation omitted.) Thurman v. Applebrook Country Dayschool,
In this case, the undisputed evidence showed that Oliver-Gaither undertook a duty to supervise Doe II for an unspecified time while Doe I went to meet a prospective landlord about an apartment. Thus, Oliver-Gaither had a duty to use reasonable care to protect Doe II from a reasonably foreseeable risk of harm, and the issue is whether any
Doe I argues that the YWCA and Oliver-Gaither.had knowledge of the alleged perpetrator’s propensity for violence based on two prior incidents. The evidence showed that three months before the sexual assault the alleged perpetrator was involved in an argument at the Shelter House when he went to the kitchen to retrieve a knife. The evidence also showed that several days before the sexual assault, Doe I saw the alleged perpetrator jump over the dividing wall in an upstairs room into another minor resident’s room.
However, no evidence showed that the YWCA or Oliver-Gaither had any knowledge that the alleged perpetrator had a proclivity or propensity to engage in an act of sexual violence against another child. Moreover, the undisputed evidence showed that Doe II was never out of Gaither’s sight for more than ten to fifteen minutes at a time. Thus, no evidence in the record showed that the alleged perpetrator’s molestation of Doe II was a reasonably foreseeable harm that resulted from a failure by Oliver-Gaither to exercise reasonable care in supervising Doe II.
2. Doe I contends that questions of fact remain regarding her claim for negligent supervision/training of an employee. We dp not agree.
An employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable that the employee’s tendencies could cause the type of harm sustained by the plaintiff. However, it is not necessary that the employer should have contemplated or even be able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff. In order to defeat summary judgment on [a claim for negligent training and supervision], a plaintiff must produce some evidence of incidents similar to the behavior that was the cause of the injury at issue.
(Citations and punctuation omitted.) Remediation Resources v. Balding,
3. Doe I contends that questions of fact remain regarding the YWCA’s liability under the theory of negligent security. We disagree.
With respect to premises liability cases, the general rule is that a landlord is not an insurer of his tenant’s safety; however, landlords do have a duty to exercise ordinary care to prevent foreseeable third-party criminal attacks upon tenants. Although the prior criminal activity must be substantially similar to the crime in question, there is no requirement that the crimes be identical. Prior property crimes may give a landlord notice of possible future crimes against a person.
(Citations and punctuation omitted.) Walker, supra,
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.
(Punctuation and footnote omitted.) Vega v. La Movida, Inc.,
[i]t is not required that the same severity of criminal attack on a person must have previously occurred in certain numbers, for the viability of the law rests on the premise that there is a first time for everything. All that is required to survive a summary judgment motion by the defense is evidence that the particular danger which resulted in the assault on [Doe II] in this case was foreseeable under all the circumstances and that the [YWCA was] negligent in failing to exercise ordinary care to guard against it.
(Citation and punctuation omitted.) McNeal v. Days Inn of America,
Doe I argues that a prior alleged incidence of sexual assault at the Shelter House creates a jury question as to whether such a crime was foreseeable. As evidence of the prior incident, Doe I relies upon a redacted police report from 2006 that was attached as an exhibit to the deposition of the YWCA’s designated representative.
Absent an exception to the hearsay rule, the police report cannot be used to establish that the prior incident occurred. See Luong v. Tran,
4. Doe I also contends that the trial court erred in granting summary judgment to the YWCA and Oliver-Gaither, and denying her cross-motion for summary judgment regarding the enforceability of the release she signed when she moved into the Shelter House. Because we find that the trial court properly granted summary judgment to the YWCA and Oliver-Gaither on Doe I’s claims for negligent supervision, negligent training and negligent security, we need not address this additional contention.
Judgment affirmed.
Notes
The appellants are using pseudonyms in this action pursuit to a protective order entered by the trial court.
Wallace v. Boys Club,
See also Novare Group v. Sarif,
The police report was not produced prior to the deposition of the YWCA’s designated representative, and counsel for the YWCA and Gaither objected on the record to lack of prior production of the report.