Appellants-plaintiffs Brittani Rice, a minor, and William D. Rice, her father, and William D. Rice, individually, appeal from the State Court of Gwinnett County’s grant of summary judgment to appelleesdefendants Six Flags Over Georgia, LLC (“SFG LLC”) and Six Flags Over Georgia II, LP (“SFG II”). The Rices filed a prеmises liability action against the appellees after Brittani Rice, then 14, reported that she had been “sexually molested” 1 while riding the Ninja roller coaster ride at Six Flags Over Georgia, an amusement park located in Cobb County (“Six Flags Park” or “Park”). The complaint, twice amended, alleged that the appellees failed to exercise ordinary care to provide adequate security for the protection of business invitees. The Rices appeal enumerating that the stаte court erred in granting summary judgment to appellees upon the standard of care owing in a premises liability case rather than that owing in the care of a child of tender age. In the alternative, the Rices argue that, even if entered uрon the proper standard of care, summary judgment for appellees nonetheless was error because genuine issues of material fact remain as to whether the appellees had a duty to exercise ordinary care for the foreseeability of the criminal attack; had a duty to warn; maintained a nuisance by providing inadequate security; and were negligent per se for violation of Georgia Department of Labor Rule 300-8-1-.08 (8). Finding the Rices’ claims to be without merit, we affirm. Held:
[T]his Court reviews the grant of summary judgment de novo to determine whether any genuine issue of material *865 fact exists for resolution by jury. Moore v. Food Assoc.,210 Ga. App. 780 , 781 (437 SE2d 832 ) (1993). Summary judgment is proper where the moving party is able to show that no genuine issue of material fact exists and that the movant is entitled to summary judgment as a mattеr of law. OCGA § 9-11-56 (c). A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential elemеnt of plaintiffs case. . . . All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins,261 Ga. 491 (405 SE2d 474 ) (1991).
Williams v. Truett,
Appellees supрorted their motion for summary judgment by, among other things, the deposition testimony SFG II’s Security and Risk Manager, Bradford W. Porter. Porter deposed that SFG II acquired Six Flags Park in 1998 and that it had been the sole owner and operator of the property from that time fоrward, inclusive of the date of the incident. The Rices opposed summary judgment on this issue below, as they do on appeal, citing
Time Warner Entertainment Co. v. Six Flags Over Ga.,
Neither did thе state court err in granting summary judgment to the appellees, as a matter of law, upon the Rices’ claim that this is a case involving a child of tender years. It is undisputed in the record that Brittani Rice was approximately fourteen years, nine months оld at the time of the alleged incident, July 5, 1999. Such person is not a “child of tender years.”
Sayed v. Azizullah,
In the context of premises liability, the Rices rely on four similar criminal acts as imposing a duty of care on appellees in the instant action. Generally, in circumstances “ ‘where the (property owner’s) negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury.’ [Cit.]”
Aldridge v. Tillman,
Only one of the prior incidents argued by the Rices occurred on a ride at Six Flags Park. There, on April 27, 1996, the juvenile victim reported that a white male attempted to rub her legs while sitting next to her on bench seats as the two rode the Flying Dutchman ride, after which, and corroborated by a witness, the alleged perpetrator told her, ‘You know you liked it.” The appellees do not dispute this report, and, while, taken at face value, it might reflect child molestation, it does not reasonably suggest a risk of harm of the typе which is the subject of this case, coming years later on the Ninja, a roller coaster thrill ride featuring multiple inversions while in a locked-down restraint system versus the more passive Flying Dutchman, a ride shaped like a pirate ship, which merely swung riders back and forth in a pendulum-like manner as they faced each other on bench seats.
The remaining incidents at Six Flags Park on which the Rices rely, none involving a ride, likewise do not show substantial similarity for purposes of demonstrating the foreseeability of the instаnt criminal act. In the first of these, a third-party witness reported observing a man place his hand on the stomach area of a small girl and in the area between her legs as the two sat on a bench in the *868 Park. Upon thereafter interviewing the man and the child, the police determined that no criminal act occurred. The alleged perpetrator proved to be the child’s stepfather who satisfactorily explained the witness’s story as an effort to remove debris from the bench below his stepdaughter. The child stated that she had not been improperly touched and that she and her stepfather had been discussing one of the rides at the park. In the second, the victim child reported observing a drunken homosexual male exрosing his penis to friends and using lewd language after getting off a ride. In the third, a juvenile female reported that a boy touched her breast by placing his hand on the clothing she wore over it while they played laser tag in the laser tag area of the Pаrk.
Even were the instant criminal act deemed foreseeable and a duty to exercise ordinary care to protect Park invitees against such a risk of harm established, the record shows that the Rices’ knowledge of the potential for viоlence on board the Ninja was equal to or superior to that of the appellees in that Brittani, though fearful, chose not to alert Park authorities of the concern she felt.
Although the issue of a plaintiff’s exercise of due diligence fоr his own safety is ordinarily a question for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable. Where a plaintiff has equal or superior knowledge of a dangerous condition existing on [a property owner’s] property, there can be no recovery if the plaintiff fails to exercise reasonable care to avoid the danger.
(Citations omitted.)
Rappenecker v. L. S. E., Inc.,
No more than a general risk of harm having been shown, negligence for failure to warn in the instant circumstanсes does not lie. Lau’s Corp. v. Haskins, supra at 493 (1).
Neither is there actionable public nuisance in this case.
A business may be a nuisance either by reason of its location or by reason of the improper or negligent manner in which it is conducted. . . . The plaintiff must show the existence of the nuisance complained of, that he [or she] hаs suffered injury, and that the injury complained of was caused by the alleged nuisance.
(Citations and punctuation omitted.)
Asphalt Products Co. v. Marable,
The facts conclusively show by plain, palpable, and undisputed evidence that the appellees had no reasonable basis to apprehend that the instant criminal act was foreseeable upon prior similar criminal acts of record. Moreover, Brittani Rice’s knowledge of the risk of harm she potentially faced was equal; if not superior to that which the appellees possessed. Under these circumstances the grant of summary judgment for the appellees on this issue was proper as well.
Judgment affirmed.
Notes
Brittani described her assailant as touching her breasts and placing his finger in her vagina after threatening her with a knife.
To the contrary, Time Warner indicates that general partner Time Warner Entertainment sold all Six Flags theme parks, inclusive of Six Flags Park then owned by SFG LLC as a limited partnership, to Premier Parks, Inc. at some point within a year after March 19, 1997. Id. at 335, 338.