Appellees were students living in appellant’s dormitory when they were sexually assaulted by an intruder in January 1987. Appellees filed suit, alleging breach of contract and negligent failure to provide adequate security. The trial court denied the college’s motion for summary judgment, and we granted certiorari from the Court of Appeals’ denial of the college’s application for interlocutory review.
1. Appellees maintain that a “housing policy agreement” between the college and each appellant constitutes a contract in which the college agreed to furnish a safe place to live, to provide sufficient security and protection, and to respond to requests for help. In the housing policy agreement, the student agreed to adhere to eight housing rules 1 and recognized that the rules were “intended to protect the security, privacy and comfort of dormitory students and neighbors.”
The first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties, and mutuality [cits.], and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon. [Cits.] [West v. Downer,218 Ga. 235 (5) (127 SE2d 359 ) (1962).]
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Inasmuch as the housing policy agreement does not express plainly and explicitly the college’s willingness to undertake to protect the student dormitory residents from the criminal acts of third parties, and we are not willing to imply such an undertaking from the language of the housing policy agreement, the college was not contractually obligated to provide such protection. See
Donaldson v. Olympic Spa,
2. Appellees’ negligence count is premised on the college’s duty to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1.
“It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers, and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence.” [Cit.] Ordinarily, even where the proprietor’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.] However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed. [Cits.] [McClendon v. C & S Nat. Bank,155 Ga. App. 755 , 756 (272 SE2d 592 ) (1980).]
That the college had knowledge that the dormitory subjected the students to the unreasonable risk of criminal attack is a prerequisite to recovery under OCGA § 51-3-1, and may be demonstrated by evidence of the occurrence of prior substantially similar incidents.
McCoy v. Gay,
In light of the dearth of evidence of the occurrence of prior substantially similar incidents, the college was entitled to summary judgment because there was no evidence sufficient to create a factual issue as to whether the college knew or should have known that its dormitory residents were at risk of a violent criminal sexual attack.
Adler’s Package Shop v. Parker,
Judgment reversed.
Notes
No firearms, illegal substances, pets, overnight guests, disruptive or rowdy activities were allowed. The student accepted financial responsibility for damage resulting from “inappropriate student behavior,” and agreed to keep her room neat and clean. The student was informed that the dorm closed at 1:00 a.m., at which time visitors were to leave and guests could not enter. Residents could enter after contacting security personnel.
That the college was aware that the dormitory was located in an area of downtown Savannah where various crimes previously had been committed did not put the college on
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notice that its students were subject to a risk of violent sexual attack. In
Lau’s Corp. v. Haskins,