Lead Opinion
FPI Atlanta, L.P, formerly known as FPI Atlanta, Ltd., owned and operated Timber Trace Apartments, Stone Mountain, DeKalb County, Georgia. Fogelman Management Company is a Tennessee corporation that managed Timber Trace for the limited partnership. Fogelman Properties, Inc., a Tennessee corporation, and Avron B. Fogelman were general partners in the limited partnership. Collectively, they are referred to as the Fogelman defendants.
Myron Seaton was a tenant at Timber Trace and lived there with his roommate Demeshia Seals. The apartment complex had 989 apartment units. The apartment complex did not have fences, gates, or controlled access. As early as 1988, the Fogelman defendants recognized the need for security at Timber Trace and used off-duty DeKalb police personnel to provide security for the tenants for approximately two years. Since 1992, the Fogelman defendants recognized the need for security gates. The manager of Timber Trace requested the installation of controlled access gates. The manager also suggested fencing prior to the incident in this case, but it was not installed. As of May 11, 1994, the Fogelman defendants had entered into a contract with Security Gates, Inc., to install electronic gates, which were not installed until after the incident.
However, in 1994, Timber Trace had an unarmed security patrol from 10:00 p.m. until 6:00 a.m. seven days per week. By contract, the
Tony Talevski d/b/a Corporate Security Services, a division of First Security Protective Services, Inc., provided security for the Fogelman defendants at Timber Trace. Corporate Security Services was an independent contractor with the Fogelman defendants. The contract provided that,
CSS (Corporate Security Services) acknowledges its responsibility, by law, for the acts and omissions of its employees and agents in the carrying out of the duties imposed upon CSS herein, accept [sic] that CSS shall not be liable to Client or any other parties for loss or damage to property of Client or other parties which Client has placed in the immediate care, custody, and control of an employee or agent of CSS.
On the night of July 24, 1994, James Boone was the Corporate Security Services employee patrolling Timber Trace Apartments. Co-conspirators Marvin Earl Turner, Jr., Martin A. Boyer, and Marcus D. Crowder, drove to Timber Trace, looking for Myron Seaton, who was the Assistant Manager at a Picadilly Restaurant on Memorial Drive. However, Seaton had not returned from work. At approximately 10:00 p.m., Boone, one of the two men on the patrol, while making his security check of the premises, observed these men drive into the complex but did not investigate, because he saw nothing suspicious, in his opinion. About 30 minutes later, he saw the empty car and assumed that they must be visiting a resident. The car was parked with the rear to the curb, concealing the license tag from the patrol, and was positioned for a fast getaway. When the police arrived, immediately after the incident, Boone stated to the police in the presence of Seals that he had been distracted when he saw the men and wished that he had followed them.
At approximately 9:30 p.m., an unknown male called Seals and determined from her that Seaton was not at home. At 10:00 p.m., two men knocked on Seaton’s apartment door. Seals looked out the window and saw two unknown men with a television set. They told her that “Myron” had sent them with the television and to let them leave it inside. Seals opened the door, and the men entered, put down the
At about 10:30 p.m., when Seaton returned to the apartment, he had a shotgun put to his head and was taken back to Picadilly Restaurant by force. At the restaurant, he was forced to open the safe, and the men took approximately $10,000.
Seaton and Seals sued the Fogelman defendants, Talevski, and Boone. All of the defendants and the plaintiffs moved for summary judgment. The trial court denied the Fogelman defendants’ motion as to negligence, but granted it as to nuisance, found that a jury issue existed as to assumption of risk by Seals, denied the defense of release as to Seaton, and denied the motion as to punitive damages. The trial court granted Talevski’s and Boone’s motions for summary judgment. The trial court denied plaintiffs’ motion for summary judgment.
1. The Fogelman defendants contend that the trial court erred in finding that they negligently breached a legal duty owed to the plaintiffs. We do not agree.
(a) The landlord’s liability for third-party criminal conduct arises under OCGA § 51-3-1 from the duty to exercise reasonable care to keep the premises and approaches safe when such criminal act with risk of injury can be reasonably foreseen by the landlord from prior substantially similar criminal conduct of the same type. The duty to guard against injury from dangerous characters arises when “the [landlord] has reason to anticipate a criminal act,” from prior experience with substantially similar types of crimes. Lau’s Corp. v. Haskins,
Accordingly, the 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 . . . 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*883 of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.
(Citations and punctuation omitted.) Sturbridge Partners, Ltd. v. Walker,
The record shows that the Fogelman defendants had knowledge that, between May 23, 1989, and July 24, 1994, fifty-nine burglaries, five armed robberies, one robbery, one kidnapping, two murders, two pointing of a pistol at another/aggravated assaults, two persons shot/ aggravated assaults, one simple battery, and one criminal trespass had been committed in the complex. Such knowledge raised a factual question as to the reasonable foreseeability of plaintiffs being victims of burglary, armed robbery, aggravated assault, and kidnapping in their apartment. Sturbridge Partners, Ltd. v. Walker, supra at 786; cf. Doe v. Prudential-Bache/A.G. Spanos &c.,
The prior similar occurrences do not require that, in the past, someone else was kidnapped for the purpose of forcing the opening of a safe or store. “All that 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.” (Citation and punctuation omitted.) Matt v. Days Inns of America,
(b) The Fogelman defendants contend that hiring Corporate Security Services satisfied its duty of ordinary care owed to its tenants. However, under the contract terms, Corporate Security Services was liable to neither the Fogelman defendants nor any other parties for any property loss or damage. Further, Corporate Security Services was only to show its presence, check to see that the Fogelman defendants’ premises were locked, and to report anything to the police that looked suspicious. Under the circumstances of this case, whether or not this was an exercise of ordinary care created a jury question. Lau’s Corp. v. Haskins, supra at 493-494 (2).
Such contract for an active security patrol presence, without investigation and intervention, afforded no security that required
Plaintiffs’ expert witness’ opinion was that the Fogelman defendants failed to exercise ordinary care when third-party criminal com duct was reasonably foreseeable, thereby creating a jury issue, so that the trial court did not err in denying their motion for summary judgment.
2. The Fogelman defendants contend that the trial court erred in holding that there was a genuine issue of fact as to causation between a breach of duty and the damages.
Inherent in every case of liability for third-party criminal conduct is the existence of concurrent proximate cause of the landlord’s prior negligent act or omission. Sutter v. Hutchings,
Division 1 controls the issue of reasonable foreseeability of the substantially similar type of criminal conduct by the landlord.
3. The Fogelman defendants contend that the trial court erred in
In Georgia,. . . defendant [s] asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks. Knowledge . . . means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities. ... In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given [her] consent to relieve the defendant [s] of an obligation of conduct toward [her], and to take [her] chances of injury from a known risk arising from what the defendants are] to do or leave undone.
(Citations, punctuation and footnotes omitted; emphasis in original.) Vaughn v. Pleasent,
Under the facts of this case, Seals was intentionally misled by a trick of the felons which caused her to open the door. She was told that “Myron,” her roommate, sent them; that they had a television set to deliver for “Myron” on his instruction; and that because it was heavy, they needed to put the television set down in the apartment, while she tried to find out about it and she saw that they did have a television. Thus, she lacked subjective knowledge of the risk of danger and had only a general awareness of a potential risk. Borders v. Bd. of Trustees, V.F.W. Club 2875,
4. The Fogelman defendants contend that the trial court erred in denying their motion for partial summary judgment as to punitive damages. We do not agree.
OCGA § 51-12-5.1 (b) provides that punitive damages “may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed . . . that entire want of care which would raise the presumption of conscious
In Divisions 1 and 2, reasonable foreseeability and concurrent proximate causation were held to be matters for the jury. Prior to January 1990, the Fogelman defendants had off-duty DeKalb County Police Department officers provide security. In January 1990, the Fogelman defendants decided to have only security patrols that merely exhibited a physical presence but took no active security measures to protect tenants, even though there was a high rate of violent crimes against persons and burglaries. In early 1992, the Fogelman defendants contracted for Corporate Security Services to drive through the apartment complex several times each night, check the landlord’s locks, and report crimes or suspicious conduct; such was not tenant security. Under the facts and circumstances of this case, the failure to provide a real “security patrol” for the apartment complex and to have a fenced and gated access gives rise to a jury issue as to an entire want of care, which gives rise to a presumption of a conscious indifference to the consequences for tenants. See Carlock v. Kmart Corp.,
5. The Fogelman defendants contend that the trial court erred in granting summary judgment to Talevski d/b/a Corporate Security Services and James Boone. We agree.
(a) Under OCGA § 51-2-5 (4), the employer of an independent contractor is liable for the acts and omissions of such independent contractor when the duty is imposed by statute; in this case, OCGA § 51-3-1 imposes a personal and nondelegable duty upon the landlord to keep the premises and approaches safe when it retains possession and control. Feggans v. Kroger Co.,
Further, a personal and nondelegable duty imposed by statute cannot be avoided by a management company , employing a security company to protect only the owner’s property; the owner is liable for the torts of an independent contractor in protecting its premises. OCGA § 51-3-1; Peachtree-Cain Co. v. McBee,
(b) Under the contract, Corporate Security Services expressly excluded liability to either the Fogelman defendants or “any other parties” for damage or loss of property, but did not expressly exclude liability for personal injury to the owners, management, or “any other parties.” Thus, the express language of the contract clearly indicated that the signatories to the contract intended that there be third-party beneficiaries to the contract, i.e., “any other parties.” OCGA § 9-2-20 (b). For there to arise contractual duties to perform owed to a third party, it must appear from the contract that it was intended for the benefit of the third party by the contracting parties. Somers v. Avant,
Where a contract is ambiguous on its face, the court as a matter of law must use the rules of construction to construe the contract to give effect to it. OCGA § 13-2-1. Under the contract, it is unclear to whom the phrase “any other parties” refers and what duties were
(c) A fact question exists as to whether the conduct of the three felons was such as to arouse the suspicions of a reasonably prudent security person to investigate or to report the conduct to the police. While Boone stated his opinion that the conduct did not appear suspicious to him, in an ordinary negligence case, opinion evidence alone is insufficient to grant summary judgment, because the weight and credibility of opinion evidence are for the jury to determine. Harrison v. Tuggle,
(d) Armor Elevator Co. v. Hinton,
Judgment affirmed in part and reversed and remanded in part.
Concurrence Opinion
concurring specially.
I agree with the majority that there is an issue of fact regarding duty, breach, proximate cause, and punitive damages for the owner/ operators. See Doe v. Briargate Apts.,
First, there is no inconsistency in holding that the owner/operators may be liable even though the security defendants are not, as the trial court ruled. The owner/operators had a nondelegable duty to the tenants. OCGA §§ 51-2-5 (4); 51-3-1; Moon v. Homeowners’ Assn. of Sibley Forest,
The second question is whether the security company may be liable in addition to the owner/operators. The trial court held that the company owed no duty to the tenants. The majority reverses that decision based on a negative inference drawn from the wording of the contract. The majority reasons that because the security contract expressly provided that the security defendants did not have any liability to the owner/operators or “any other parties” for property damage, that the security defendants impliedly agreed they would be liable to “any other parties” in tort.
“In order for a third party to have standing to enforce a contract ... it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.” (Citations and punctuation
Here, in addition to the provision relied on by the majority, the security contract includes a merger clause which states, “this writing constitutes the sole agreement between the parties, and any representation, warranty or promise not included herein shall be of no effect.”
It is unreasonable to say that an intent “clearly appears from a contract” when a negative inference is required to show it, especially where there is a merger clause in the agreement. Further, there are over 2,500 tenants at the apartment complex. It is certainly not clear from the contract that by hiring one or two security guards to patrol at night that the owner/operators and the security defendants intended to give all 2,500 tenants the right to sue under the contract. See Armor Elevator Co. v. Hinton,
However, the security defendants may be liable if they voluntarily undertook to provide security for the tenants. If so, they are liable if they were negligent and either (1) Seaton and Seals detrimentally relied on the security defendants’ actions or (2) the security defendants created an increased risk of harm by their own actions. Griffin v. AAA Auto Club South,
An expert for the plaintiffs testified that the security services that were provided would reasonably lead a tenant to the conclusion