This is the second appearance of this case before this court. In November 2001,16-year-old Jamie Spivey moved into a house owned by her 18-year-old boyfriend’s mother. On January 14, 2002, the boyfriend, Bradlee Hembree, shot Spivey to death there and killed himself shortly thereafter. The administrator of Spivey’s estate (Spivey) later sued the boyfriend’s mother, Sharon Hembree, and his grandmother for wrongful death. In
Spivey v. Hembree,
On remand, and after further discovery, Hembree moved for summary judgment on the remaining premises liability claim. After the trial court denied the motion, Hembree applied for interlocutory review, which we granted. On appeal, Hembree argues that because Spivey has failed to refute evidence that Jamie had superior knowledge of the risk posed by Bradlee, the trial court erred when it denied Hembree’s motion for summary judgment. We agree and therefore reverse.
“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. [Cits.]” (Punctuation omitted.)
Walker v. Gwinnett Hosp. System,
The record shows that in its first order denying summary judgment,
1
the trial court found that although Hembree had not actually known that Jamie was in danger, a question of material fact existed as to whether
In support of her second motion for summary judgment on the premises liability claim, Hembree filed affidavits from two friends of the dead couple. The first friend averred that Bradlee “would be abusive toward Jamie” and that “she was sometimes concerned about his behavior towards her,” and the second averred that Bradlee showed him guns in the presence of Jamie. Despite what it recognized to be new evidence, the trial court again concluded that a genuine issue of fact remained concerning Hembree’s superior knowledge.
As a preliminary matter, we reject Spivey’s argument that because Jamie was only 16 years old at the time of the murder, her awareness of the hazards posed by Bradlee cannot establish her superior knowledge concerning them as a matter of law. Georgia long ago established 14 years as the age of responsibility for purposes of negligence. A young person over that age must offer proof to rebut the presumption that she is chargeable with the same degree of care as an adult.
Sheetz v.
Welch,
Assuming that Jamie was a tenant, and therefore an invitee rather than a licensee, Hembree owed Jamie only a duty of ordinary care in keeping her house safe. OCGA § 51-3-1;
Robinson v. Kroger
Co.,
When the alleged breach of the proprietor’s duty to keep the premises safe is based on its negligent failure to protect the invitee from acts and consequences of the acts of a third party which the invitee himself was powerless to prevent by ordinary care, it is of no benefit to ponder whether the invitee knew of the incipient danger, and it would be illogical to excuse the proprietor’s negligence merely because the plaintiff invitee was aware of a potential peril he could not escape. The true basis of liability in such a case is the foreseeability of the consequences by the proprietor, which consequences the plaintiff could not avoid with use of ordinary care.
(Citation and punctuation omitted; emphasis in original.) Id. at 160. In such cases, a plaintiff must show that “the incident causing the injury is
substantially similar in type to previous criminal activities occurring on or near the premises at issue.”
(Citation and punctuation omitted; emphasis supplied.)
Aldridge v. Tillman,
Even if Hembree knew more about Bradlee’s criminal past than Jamie Spivey, it does not follow that Hembree knew more about her son’s violent designs on Jamie than the girl herself did. As we have previously explained in a similar case arising from a boyfriend’s assault on his girlfriend on the defendant store owner’s property:
This was not a random stranger attack but rather grew out of a specific private relationship which had no connection with thepremises or employment whatsoever. The place chosen by the boyfriend for the attack just happened to be the employer’s store. The employer did not create or allow to exist an environment which placed Johnson at risk any more than if she had been at home or on the street.
(Citation and punctuation omitted.)
Johnson v. Holiday Food Stores,
For all these reasons, we conclude that under the undisputed facts, Hembree did not have superior knowledge of the danger posed by Bradlee to Jamie Spivey, whose death was not foreseeable as a matter of law. See
Clark,
supra,
Judgment reversed.
Notes
Hembree did not apply for interlocutory review of the trial court’s denial of her first motion for summary judgment. See
Spivey,
supra,