Lead Opinion
In these interrelated appeals arising from a 2008 triple homicide at Doctors Hospital in Muscogee County, Plaintiffs Alan Keith Cavender, Marion Baker, and Carla Wright (collectively, “Plaintiffs”) brought three separate civil actions against Defendants Doctors Hospital, Inc. d/b/a Doctors Hospital, The Medical Center Hospital Authority, and Securitas Security Services, USA, Inc. (collectively, “Defendants”)
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this 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 element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Further, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
La Quinta Inns v. Leech,
Viewed in a light most favorable to the Plaintiffs, the evidence revealed that, for several years, Securitas provided security services to Doctors Hospital pursuant to a security agreement. Securitas provided security guards on three different shifts, including one security guard during the day, to monitor Doctors Hospital. As a part of its service to Doctors Hospital, Securitas also provided annual security surveys to Doctors Hospital. The purpose of the surveys was to “assess the efficiency of the security” at Doctors Hospital. These surveys included areas where improved security may be warranted. In particular, Securitas noted that certain entryways should be secured to control ingress and egress, replacement of the closed-circuit TV monitoring system, and additional coverage of the premises by video cameras.
On February 29, 2008, the Hospital Authority purchased, and took ownership of, the Doctors Hospital campus. On the same date, the Hospital Authority entered into a management agreement with Doctors Hospital, Inc. to manage the day-to-day operations of the
On March 27, 2008, Charles Johnston visited Doctors Hospital carrying two concealed handguns beneath a light jacket. He proceeded to the fifth floor, which housed the hospital’s intensive care unit. He then left the hospital for some time and returned on two occasions that day, going to the fifth floor on both occasions. On his third attempt in the early afternoon hours, a nurse asked Johnston if he needed any assistance; he calmly replied that he did not. Johnston then saw Peter Wright enter a room, and Johnston followed him. Johnston asked Wright, “Do you remember me[,] [d]o you remember my mother [,]”
Alan Keith Cavender was on the fifth floor and saw the shooting. Les Harris, hearing the gunshots, ran up the stairwell from the fourth floor to the fifth floor to investigate. Harris asked Cavender to check the stairwell while he monitored the elevators. As the two ran down the hall, Johnston appeared; Johnston shot Harris in the chest, killing him instantly. Cavender attempted to provide CPR to Harris, and Johnston placed his handgun against the back of Cavender’s head and cocked the handgun. Cavender told Johnston to “[g]o ahead and shoot me [because] [y]ou just killed my [life] partner.” Instead, Johnston struck Cavender on the back of the head and fled down the stairwell.
Wayne Michaux, the lone Securitas security guard on duty at Doctors Hospital on the day of the shooting, was patrolling the parking lot when he received urgent “code blue,” “code nine,” and “shots fired” calls from Doctors Hospital on his radio. Michaux ran to
James David Baker was parked next to Johnston. As Johnston approached his vehicle, Baker began to exit his vehicle. Johnston shot Baker, and Baker fell back into his vehicle. Law enforcement authorities arrived in the parking lot, and Michaux directed them to Johnston. Johnston exchanged gunfire with the authorities and was himself shot during the incident before he was apprehended. Officers found three handguns on Johnston’s person. A medical team from Doctors Hospital reached Baker’s vehicle shortly after the shooting but was unable to save Baker’s life.
All Cases
1. In each appeal, the respective Defendants contend that the Plaintiffs failed to present sufficient evidence that Johnston’s attack against Cavender or Johnston’s murder of James Baker, Les Harris, and Peter Wright was foreseeable.
It is well settled that the following four elements are necessary to support a cause of action for negligence under Georgia law:
(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.
Leech,
As a threshold matter, “a property owner is not an insurer of an invitee’s safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable.” Ratliff v. McDonald,
“Foreseeable consequences are those which are probable, according to ordinary and usual experience, [or] those which, because they happen so frequently, may be expected to happen again.” (Punctuation omitted.) Brown,
Foreseeability may be determined by analyzing whether the property owner has notice of substantially similar prior criminal acts. Sturbridge Partners v. Walker,
(a) Substantially Similar Crimes. In response to the Defendants’ motions for summary judgment, the Plaintiffs supplied a collection of police reports detailing incidents at Doctors Hospital and a neighboring property, The Medical Center.
Of primary importance, the reports are most notable for what they do not show. Of the 11 police reports from Doctors Hospital relied upon by the Plaintiffs, none involved multiple murders, a single murder, a shooting, a weapon, or, for that matter, a significant injury. Indeed, the majority of the reports detail nothing more than verbal threats. See Aldridge v. Tillman,
At best, then, the police reports provided by the Plaintiffs show two armed robberies at a neighboring property at least five years prior to Johnston’s rampage. Foreseeable consequences are “those which, because they happen so frequently, may be expected to happen again.” (Punctuation omitted; emphasis supplied.) Brown,
Furthermore, the Plaintiffs’ attempt to show foreseeability through the testimony of Anthony Potter, a security expert with many years of experience in hospital security, is unavailing. Potter opined, based upon a review of Doctors Hospital’s procedures, the 2008 Securitas security survey, deposition summaries and “numerous publications on the issue,” that Johnston’s rampage was foreseeable due to an “increase in the number of shooting incidents at healthcare facilities,” the “increase in the number of violent confrontations between patients and/or family members and healthcare providers,” and that there was no “visible deterrent” to such actions at Doctors Hospital.
Potter’s opinions are of the same character as the tendered experts’ testimony in Brown. In Brown, the experts “discussed generalized concepts of violent reactions to financial disaster and workplace violence.”
Case Nos. A14A1788, A14A1790, and A14A1798 (Medical Center Hospital Authority)
2. In its two enumerations of error, the Hospital Authority contends that there were no genuine issues of material fact that: (a) Johnston’s actions against James Baker, Les Harris, and Peter Wright were not foreseeable; and (b) Johnston’s intervening criminal actions formed the proximate cause of the Plaintiffs’ injuries. These issues have been addressed in Division 1, supra, and we have concluded that the trial court erroneously denied the Hospital Authority’s motions for summary judgment.
Case Nos. A14A1789, A14A1792, and A14A1794 (Securitas)
4. In addition to its arguments concerning foreseeability and proximate cause, Securitas contends that it owed no legal duty to prevent Johnston’s actions.
In personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury.
(Citations and punctuation omitted.) Brown,
[ajlthough the third-party beneficiary need not be specifically named in the contract, the contracting parties’ intention to benefit the third party must be shown on the face of the contract. The mere fact that [the third party] would benefit from performance of the agreement is not alone sufficient.
(Citations and punctuation omitted.) Id. And as we have stated before,
[w]e recognize that whenever a premises owner contracts with a private security company the parties may expect the security services provided to benefit invitees who visit the property. As we have held, however, an injured invitee may not recover against the security company for negligent performance if the contract is silent as to the parties’ intent to confer that benefit.
Here, the security agreement governing Securitas’ relationship with Doctors Hospital specifically disavowed any intent to confer a direct benefit on Doctors Hospital’s employees or customers (“The services provided under this Agreement are solely for the benefit of [Doctors Hospital;] neither this Agreement nor any services rendered hereunder shall be deemed to confer any rights on any other party as a third party beneficiary.”). Consequently, even when construed in the Plaintiffs’ favor, the evidence does not support a finding that the Plaintiffs were third-party beneficiaries of Securitas’ security agreement with Doctors Hospital. See Brown,
5. Next, Securitas alleges that the Plaintiffs failed to present any admissible evidence establishing a breach of any duty allegedly owed by Securitas. As noted supra, Securitas’ security agreement mandated that Securitas supply one unarmed guard to monitor Doctors Hospital during daytime hours. Michaux was present on the date of Johnston’s rampage and was patrolling the Doctors Hospital property to satisfy Securitas’ contractual obligation. Moreover, Michaux’s conduct reveals that there was no breach of Securitas’ duty.
The evidence demonstrates that Michaux did not learn of the rampage until he received urgent calls from Doctors Hospital. When he learned of the shootings, he immediately proceeded to the emergency room, called 911, and ordered employees to lock down the emergency room. When Johnston was unsuccessful in gaining entry to the emergency room due to Michaux’s actions, Johnston left, and Michaux followed him. In the parking lot, Michaux warned visitors to take cover. When law enforcement authorities arrived, Michaux directed them to Johnston. Michaux was not permitted to confront or attempt to arrest Johnston; rather, he was required to report any activity to law enforcement authorities, which he did. For his actions, Michaux received awards from Securitas and the Muscogee County Sheriff. In short, even when viewed in favor of the Plaintiffs, as this Court must, Michaux went to great lengths to fulfill Securitas’ contractual responsibility to monitor Doctors Hospital. Accordingly, it follows that the trial court erred in denying Securitas’ motion for summary judgment because there was no breach of any duty allegedly owed by Securitas.
6. In its second enumeration of error,
7. In its final enumeration of error, Doctors Hospital claims that the trial court erroneously denied its motion for summary judgment as to punitive damages because Baker failed to present any evidence of malicious, wilful or wanton misconduct. However, because of the unforeseeability of Johnston’s rampage, there was no duty by Doctors Hospital to guard against such a violent rampage. And without entitlement to compensatory damages, punitive damages may not be awarded. See Southern Gen. Ins. Co. v. Holt,
Judgments reversed and cases remanded with direction.
Notes
Additional defendants were also initially named as parties; however, the Plaintiffs dismissed those defendants without prejudice during the course of the parties’ litigation. As a result, Doctors Hospital, the Hospital Authority, and Securitas comprise the remaining defendants that are the subjects of these appeals.
Cavender filed his civil action in his individual capacity against the Hospital Authority and Securitas in Case Nos. A14A1788 and A14A1789, respectively. Baker and Wright each brought their actions in their capacities as the surviving spouses of James David Baker (Case Nos. A14A1790 [the Hospital Authority], A14A1791 [Doctors Hospital], andA14A1792 [Securitas]) and Peter Wright (Case Nos. A14A1793 [the Hospital Authority] and A14A1794 [Securitas]), respectively, and as the executrixes of the estates of Messrs. Baker and Wright.
In approximately 2004, Johnston’s mother was a patient in the intensive care unit of Doctors Hospital. During her stay, one of the nurses who allegedly provided her care was Wright. Johnston believed that Wright unplugged Johnston’s mother from a ventilator, which led to brain damage and blindness. Ultimately, Johnston’s mother passed away while a patient at Doctors Hospital.
These arguments, as well as the Defendants’ arguments concerning proximate cause, are included in: (1) the Hospital Authority’s two enumerations of error in Case Nos. A14A1788, A14A1790, and A14A1793; (2) Securitas’ third and fourth enumerations of error in Case Nos. A14A1789, A14A1792, and A14A1794; and (3) Doctors Hospital’s first and third enumerations of error in Case No. A14A1791.
The Hospital Authority contends that Cavender fabricated his testimony that Johnston struck him in an effort to secure damages for his emotional distress flowing from Johnston’s rampage. The Hospital Authority’s position is based upon the lack of a criminal charge against Johnston for any assault or battery of Cavender, and that neither the State nor Johnston himself referred to Cavender during Johnston’s guilty plea hearing. Nevertheless, for purposes of these appeals, we accept Cavender’s testimony as true.
The Medical Center is located on a separate, adjacent campus and does not share an address with Doctors Hospital.
Although the Plaintiffs submitted 73 different police reports, the Plaintiffs only relied upon a total of 43 in their briefing to the trial court. As a result, our review will be limited to those police reports actually argued to the trial court.
In addition, although the Plaintiffs suggest through Cavender’s testimony that Johnston’s appearance raised a “red flag” to Cavender and Harris, the record is devoid of any effort to report any suspicion to Michaux or to anyone else. As a result, there is no indication that the Defendants were on notice that Johnston in particular could be dangerous or posed a threat.
Indeed, the extent of the Plaintiffs’ efforts on this point may be summarized in one of its own briefs: knowledge of Doctors Hospital’s management, gained through its prior management of neighboring Medical Center, “certainly included knowledge of the crimes and violence committed at the neighboring Medical Center Hospital.” See generally Johns v. Housing Auth. for the City of Douglas,
In its third and fourth enumerations of error, Securitas asserts that the Plaintiffs failed to present sufficient evidence that any act or omission by Securitas was the proximate cause of Johnston’s actions or that Johnston’s actions were foreseeable in the absence of any prior substantially similar occurrence. We have addressed these arguments in Division 1, supra.
We have addressed Doctors Hospital’s first and third enumerations of error in Division 1, supra.
See Patterson v. County of Oneida, N.Y.,
Athird method, acknowledgment of a known danger by a defendant, is not at issue in this appeal. See Wallace v. Boys Club of Albany,
Concurrence Opinion
concurring specially.
I write separately to withhold my full concurrence from footnote 9 of Division 1 (b), in which the majority addresses the plaintiffs’ attempt to impute the Medical Center’s knowledge to Doctors Hospital. This footnote might be read to establish an overbroad precedent regarding imputation of knowledge between interrelated entities. I would not reach that issue. Because I do not fully concur in it, the footnote does not establish precedent. Court of Appeals Rule 33 (a). I concur fully in the remainder of the opinion.
I write also, however, to disassociate myself from the majority’s unfortunate decision to publish in footnote 5 of Division 1 the Hospital Authority’s allegation that one of the plaintiffs, who witnessed the murder of his life partner, is lying about having been himself the victim of an assault. That plaintiff has asked us to strike and ignore that allegation because it is “wholly unnecessary, inflammatory, and improperly (particularly on appeal from a summary judgment decision) seek[s] to impugn [his] credibility and reputation.” Just so. We ought to have ignored it. The allegation would have been highly relevant at trial; but unless we are reversed on certiorari, there will be no trial. We do, from time to time appropriately note that facts we must assume to be true are disputed — particularly where a party is accused of misconduct. But the reference here is gratuitous.