*1 any attempt fide rather failure to make bona establish contact any than to conduct of the mother. JJ.,
Judgment Beasley Cooper, concur. affirmed. February
Decided 1993. Seery, Andrews,
Andrews & Stephen appellant. H. Rawlins, McCollum, Jr., Altman, McCollum & Elliott P. Lane & Jr., Lilly, Roy Lilly, appellee. M. STAGES,
A92A1267. STRINGER et al. v. SOUTHEASTERN INC. et al. 494) SE2d
Pope, Judge. While a passenger on a bus en Augusta Atlanta, route from appellant-plaintiffs’ son was shot to death a sudden unpro- by voked criminal co-passenger. result, plaintiffs As a filed the instant wrongful death against appellee-defendants, action corporation which operated as a common carrier and its agent. After discovery, defendants moved for judgment and the trial granted court appeal. motion. Plaintiffs
Plaintiffs assert several liability against theories of defendants. Defendants applicable admitted that industry regulatory prohibit rules transportation of loaded firearms on a common car- By way rier. enforcing rule, of this only defendants conducted a visual inspection passengers as First, boarded plaintiffs the bus. as- sert that defendants duty breached the imposed upon common carriers for the passengers by failing to take precautions, beyond the inspection mere visual boarding passen- gers, prevent passenger from boarding possession a bus while in gun. of a support To the argument precautions that additional were reasonably necessary case, plaintiffs argue the unreasonable risk of harm to passengers from by violent crimes was foreseeable vir- prior tue of substantially similar crimes. Knowledge of the unreasona- ble risk of criminal upon persons attack duty to whom a of care is “may owed by be demonstrated prior evidence of the occurrence of substantially similar incidents.” Savannah College Design Art & Roe, 848) (1991). SE2d Lau’s Corp. See also Haskins, (1991); Allen, MARTA v. though Even the cited cases premises involved liability, why we see no reason the rule of these cases must be confined to knowledge static condition by proposed dissenting opinion. Thus, property,
on real we see why applicable rule to the no reason is not care owed to a common carrier. plaintiffs presented argue Defendants evidence of sub- stantially reported similar incidents no other since case exists which one of defendants’ was assaulted a bus co- *2 reflects, however, in passenger. The record that 1988 a bus was driver by a knife-wielding passenger assaulted a 1986 bus driver repeatedly passenger. shooting stabbed a The at issue in Simply previous occurred June 1989. because the in- incidents knives gun volved instead drivers instead of does establish, law, previous as a matter of that the incidents not are substantially Certainly, similar. the criminal attack aof driver with a weapon driving places while he is a the bus all on board at risk from the criminal act. similarity’ “Whether a ‘substantial exists must be determined the facts each individual case. It not re- is quired that the offenses be ‘All that required identical. is the (incident) prior be sufficient to attract the attention to [defendant’s] (incident).’ the dangerous condition which resulted in the litigated Mgt. Cossaboon, Pembrook
(1981).” Allen, MARTA v. Ga. App. at 903. We cannot hold as a jury matter of law a could not find from the evidence the previous assaults were sufficient to alert defendants to the dangerous condition or posed by passengers weapons threat carrying onto buses and that defendants failed to exercise care guard against Thus, danger. the trial erred in granting summary court to defendants. argue
Plaintiffs jury also that a could find defendants failed to appropriate exercise the standard care under the circumstances be- cause defendants failed to follow their agree. own rules. We Travel, Inc. Defendant agent acted as the Stages, Southeastern Inc. in managing Augusta bus at co-passenger terminal which the bought assailant a ticket Travel, and boarded the employee bus. Inc.’s manual contains the rule accidents and unusual occur- “[a] rences, however they may time, trivial seem at the involving custom- ers, employees, persons, or other reported must be immediately to a supervisor company.” of the light when viewed most favorable to non-moving party, shows that the assailant told who him agent “probably sold ticket there would an cop looking . him” agent instructed the “to tell them Later, that he hadn’t seen him.” reminded the agent to “forget you.” what I told The record the testi- contains mony agent ticket thought who stated he nothing of the state- ment at the report time it was supervisor. made and did not it newspaper reporter prepared event, however, who an article about the agent testified the ticket told her about the customer’s statements agent and when she asked the ticket he thought shooting, what “I responded, you he bet him.” In deposition testimony, that’s agent referred to customer’s statements as “unusual.” Plaintiffs argue the evidence thus creates an jury issue for determination con- cerning agent whether the company’s violated the rule requiring em- ployees report supervisor unusual occurrences to a and thus breached a to the victim.
“Privately established ‘rules are admissible as illustrative neg- ligence, but the violation of such a rule is negligence in and of itself. v. Piggly-Wiggly Southern, Luckie [Cits.]’ [Cit.]” Private guidelines are admissible and relevant to show what constitutes the exercise of the appropriate standard of in specific Thus, agree situation. Id. we plain- tiffs jury that a could find defendants private violated their own guidelines in this case and from this finding could conclude defend- ants failed to appropriate exercise the standard of care owed to the victim in this case.
Finally, plaintiffs assert assailant, behavior of the making the unusual remarks to the agent, ticket creates an issue for jury determination concerning knew, whether defendants inor the ex *3 ercise of extraordinary known, care should have posed an unreasonable risk of harm to the In victim. their motion for summary judgment, defendants relied cases from the earlier half century of this which held that even the intoxication passenger, who was not otherwise behaving boisterously, was not sufficient to alert a carrier that the passenger posed an unreasonable threat of harm to fellow passengers. Compare, e.g., Pinnell v. (2) (47 and Powell v. Beasley, 57 Ga. 926) (1938) (in SE which passenger’s the mere intoxica
tion was insufficient defendant common carrier on notice that the passenger posed a threat safety the passengers) of other with Hillman Georgia R. & Banking Co., 68) (1906) SE Grimsley v. Atlantic Coast Line R. Ga. App. 557 SE 943) (1907) (in which an passenger’s intoxicated boisterous behavior created an issue for jury determination concerning whether the de fendant common carrier should have known passenger posed the a threat safety to the of other passengers). cases, From these defend argued ants the evidence of the assailant’s odd statements is insuffi cient to show breached the of extraordinary care owed to the victim because the assailant was neither intoxicated nor behaved in a violent manner. Before a may common carrier be liable injury for from a criminal “ another passenger, the carrier must ‘[knowledge have
the passenger’s danger or of facts and circumstances from which that ” Savannah, .’ Fla. & inferred. R. Co.
danger may Yet, analysis in our beyond go displayed case must whether the assailant be- boisterous provided havior would have to defendants as- which notice the A posed passengers. jury may sailant a threat harm to other deter- previous the weapons mine from evidence of violent attacks board defendants’ buses defendants failed to exercise extraordi- nary diligence conducting only inspection a visual of the assailant weapons jury A this case. determine from the defendants’ rules, own which are issue relevant the of the standard of care situation, particular owed a standard of owed to the cases, victim in greater imposed by was than that those older above, cited a liability relieved common carrier of the carrier was not alerted to the risk of harm passengers by passen- to fellow ger’s display jury may boisterous behavior. conclude supplied customer’s statements defendants with the facts and circum- danger stances from which a other could have dis- covered had defendants their followed own rules. duty imposed upon pas- a common carrier
sengers extraordinary diligence. is that of jury OCGA 46-9-132. A § indeed, may, conclude, argue, as defendants that the customer’s state- vague ments were so extraordinarily to arouse diligent mind potentially customer was dangerous to hand, other passengers. On the other hostage-taking, mass murder and other in public places anti-social behavior regretfully un- common in this light time. In previous the evidence of attacks deadly passengers carrying weapons bus, onto the we cannot conclude jury as a matter law that a could not find that the customer’s state- ments require, were so pursuant “unusual” so as to to defendants’ rules, report who, supervisor in the exercise of diligence would have Thus, discovered that customer armed. the trial court erred in granting defendants judgment.
Judgment J., McMurray, JJ., reversed. P. Cooper Johnson, J., Beasley, concur. concurs in only. Sognier, J.,C. Bird- song, J., J., Carley, Andrews, J., P. P. dissent.
Carley, Presiding Judge, dissenting. opinion, In my affirmance of of appellee-defendants favor of is mandated the controlling Supreme authority Court of Fla. & R. Boyle, W. Co. v.
(42 242) (1902). Since, SE in my opinion, the majority does not suc- cessfully distinguish I so, that decision and am to do I must unable dissent. predicated
In a 51-3-1, case alleged an violation of OCGA § prior knowledge of the occupier owner or conditions
227 property subject on real invitees to an unreasonable exist his College Savannah recovery. is prerequisite of criminal attack risk Roe, (409 Design 764, 848) Art & v. (1991); 261 Ga. 765 SE2d Haskins, 491, (1) (405 474) Corp. v. (1991); Lau’s Ga. 492 SE2d 261 McCoy Gay, v. 590, (1983). App. Ga. SE2d 591 How- is not ever, predicated upon alleged the instant an violation of son Appellants’ OCGA 51-3-1. was not killed a criminal attack § occurring property occupied appellees. on real owned or died He occurring a result of a criminal attack operated a bus owned and by appellees. Accordingly, is upon appellees’ knowledge the focus allegedly dangerous property. static condition on their real appellees’ is upon propensity focus of the violent of one of specific passengers particular their who was in on a transit bus at a certain time. carrier “is bound to use that extreme care and caution contemplated prudent very persons thoughtful to anticipate an injury threatened the passenger by fellow passengers per- or third Grimsley Coast Atlantic Line R. (1) (57 sons.” App. Ga. “ 943) (1907). However, SE ‘[k]nowledge passenger’s danger, of facts from danger may and circumstances reasonably which that be inferred, to fix necessary liability the carrier’s in this class of cases.’ “ ‘ Fla. & R. Co. at 839. [Cit.]” “While unquestionably it is of a carrier to exercise protection care for passengers, (require the rule does not carrier protect to take measures its passengers from the intentional persons) misconduct of (the third ... something occurs carrier) on notice that. . . might reasonably such conduct . . . be an- ’ .” Ferguson Paschal v. ticipated. Transport, App. 189 Ga. [Cits.]” 901) (1988).
Construing the evidence favorably appellants most shows the following: At the time the purchased ticket, assailant he told the agent ticket that “there probably would be an cop look- ing” for him and that the ticket agent was “to them tell that he hadn’t seen him.” After reminding the agent ticket “forget you,” I what told the assailant boarded the peacea- bus and travelled until, bly provocation, without warning or he drew a gun and shot and fatally wounded appellants’ son.
On this obviously there is nothing in the assailant’s physical conduct which would potential evince his for violence. He and, shown were, to be intoxicated even if he is no “[t]here presumption that person under liquors of intoxicating influence . . . will commit an provocation, assault without nor anwill inference be authorized from the fact mere intoxication that a condition Pow- expected to so conduct himself.” Beasley, ell v. 926) (1938). 232-233 See also Pinnell v. *5 Banking v. Ga. R. &
Compare Hillman drunk); Grimsley v. Atlantic Coast (1906) (boisterous pistol-wielding drunk). (boisterous Line R. pistol-wielding supra the instant case should turn on resolution of Accordingly, to to the assailant would be sufficient the words attributed whether The literal words them- propensity to commit violence. evince his potential unprovoked vio- the assailant’s suggest selves do true, anyone. If to be the words He did not threaten deemed lence. that, time, an officer merely impart notice at some future unspeci- whereabouts for some might be interested the assailant’s However, words do not intimate that the assailant fied reason. presently imminent arrest and was armed or would otherwise feared If co-passengers on the bus. deemed to be present danger false, merely impart notice that the assailant either was the words However, joke mentally dysfunctional. or was the words making a bad paranoid so dangerously do not intimate that the assailant was co-passen- presently potential danger be armed and a source of to his gers on the bus. Boyle, supra, Fla. & R. Co. v. W.
In the carrier had committed knowledge actually two of its had placed had under arrest. On this stealing crime of a ride and Supreme Court held: “While it be that even an ordinarily prudent person apprehend would have reason to [the passengers] escape under arrest for a two misdemeanor would af- extremely opportunity, forded a reasonable still an careful reasonably apprehend making attempt could not that in such an would, it, in order to effectuate make a murderous assault with a deadly weapon upon either one who made an effort to thwart Sa- attempt upon taking part another who was such effort.” vannah, Fla. & R. Co. v. W. case, In supra at 841. the instant appellees knowledge. They had even less had no actual any previous that the assailant had crime or that his free- committed any They dom to travel on the bus should restrained for reason. be knowledge only vague had actual the assailant had made some bus, why statements as to the reason he wished to board suggest present danger statements did he constitute would any co-passengers of his on the “There is in the nothing bus. [rec- [bus], appears employees charge from which it that the ord] company in the high degree exercise of that of care which the [bus] [appellants’ him hands of protect injury owed to from at the son] might upon those who or with be consent [the bus] [their] knowledge, could should have foreseen that the [their] [assailant] would, [bus], attempt to . . . commit a having after [boarded] co-passen- unprovoked] murderous [sudden [his Boyle, Fla. & R. Co. v. gers].” at 841. summary judgment It the trial court’s follows “ ‘ unquestionably it appellees be affirmed. “While favor should protection extraordinary care for the of a carrier to exercise apply under the circumstances passengers, rule does play great into the exercise something occurs to call anything [ap- It was that there was degree care. not [shown] [unprovoked pellees] on notice that conduct. .. violent] reasonably anticipated, except vague non- [made *6 threatening This was insufficient withstand statements]. [to presumption person There is judgment]. makes such [who vague non-threatening will commit an. assault without statements] provocation, authorized[,] nor will an inference be from the mere fact such made,] statements were [making state- [that ’ expected to so conduct himself. . . .” ments] Pinnell at 75-76. [Cits.]” possible appellants’ It is the death of son not have oc- all subjected curred persons had to a frisk of their all required or if pass through had been metal detec- However, appellees tor. are not passen- insurers of their MARTA, Mattox v. gers. (1991). Ga. All that is required extraordinary is the exercise diligence and, Ias Fla. & W. v. Boyle, appellees may R. Co. construe not be found have breached that to exercise diligence unless and knew should have known of the propensity specific assailant who appel- boarded bus with son. Accordingly, Fla. & W. R. Co. lants’ unless and until overruled, I supra, am constrained to follow it to dis- majority’s sent reversal of the summary judgment of appellees. favor
I am authorized to state Chief Judge Sognier, Presiding Judge Birdsong and Judge join Andrews this dissent. Decided December February 4,
Reconsiderations denied Butler, Wooten, Overby Cheeley, Jr., & Butler, James E. Charles Overby, Jones, F. Peter Daughtery, Associates, J. Boykin & John W. Jones, Jr., Boykin, Noble L. for appellants. Merritt,
Lorrenzo C. Lokey Bowden, Smith, & Malcolm Mel Mobley, appellees.