Derick Wade, plaintiff, sued Findlay Management, Inc. d/b/a McDonald’s Restaurant in Douglas, across from the county high school, and Ann Stapleton, its manager, for failing to protect him from an assault on November 26, 1996. Even though Stapleton had caused some older boys to leave the playground in front of and connected to the restaurant around 7:00 p.m., because they were bothering smaller children and an attack on September 12, 1996, of an adult by two teenage boys had occurred, the defendants moved for summary judgment, alleging that they lacked notice for them to foresee third-party criminal conduct on its premises. The trial court granted summary judgment. We reverse, because there exists a jury issue as to whether or not the defendants should have reasonably foreseen the assault and whether they exercised ordinary care to protect plaintiff.
On November 26, 1996, at approximately 7:00 p.m., Stapleton had a complaint from an assistant manager, Smith, that older boys were bothering small children in the fenced-in play area connected to the restaurant; Stapleton approached the boys and told them that she was locking up the playgate, causing them to leave without argument, although she planned to allow others to use the playground. She did not consider that such discriminatory treatment would cause the older boys to become angry with those younger children allowed to use the playground. The plaintiff walked toward the playground and restaurant with the small children, and the older boys yelled at him and attacked him, while Stapleton was closing the gate. Wade was knocked to the ground by a blow to the head, and three of the boys started kicking him on the ground where he hit his head on a planter. Smith opened the door and screamed at the boys, causing the boys to flee.
On Friday and Saturday nights, the defendants maintained a security guard to maintain order, particularly when there was a game at the high school. By affidavit, Stapleton testified that “during the entire 2½ years that I have worked at this McDonald’s Restaurant until the time of the attack, there had never been any incident when an adult was threatened or physically attacked by older boys or others anywhere on the property.” However, on September 12, 1996, Joseph Samuel Padgett, Jr., an adult, was attacked there by two boys about the same time on a weekday night, after they had teased his son and he tried to stop them; one of the attackers brandished a gun and yelled, “I’ll put a cap up your ass.”
Plaintiff contends that the trial court erred in granting summary judgment. We agree, because there exist issues of material fact for jury determination.
Accordingly, the incident causing the injury must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers or tenants against the risk posed by that type of activity. See Matt v. Days Inns of America,212 Ga. App. 792 (443 SE2d 290 ) (1994), aff’d, Days Inns of America v. Matt, supra. In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.
(Citations and punctuation omitted.)
Sturbridge Partners v. Walker,
supra at 786; accord
Doe v. Prudential-Bache/A.G. Spanos Realty
Partners,
In this case, in opposition to the motion for summary judgment, plaintiff introduced evidence that not only contradicted the material factual statement of the defendant, impeaching her, i.e., no prior similar assault on an adult, but also gave evidence of a prior similar criminal assault that had occurred in the restaurant by a teenager on an adult after a child had been bullied and the adult sought to stop the bullying during a week night at approximately the same time. Further, the victim had given actual notice to the same defendant. The restaurant was across the street from the high school, and the defendants foresaw trouble on the weekends at night so that they provided security to maintain order; the voluntary undertaking to provide security on weekend nights could be construed by the jury to be evidence of foreseeability of criminal conduct.
Doe v. Briargate Apts.,
In this case, older boys sufficiently bullied smaller children so that assistant manager Smith told the defendant who caused the older boys to leave, which should have alerted the defendant to possible trouble for any adult who complained or attempted to stop the boys. While the defendant was physically present, the boys yelled at the plaintiff as he led young children to the area and then attacked him. Although close to the plaintiff at the gate to the playground, the defendant heard the yelling and saw the boy knock the plaintiff to the ground with a blow to the head.
“[W]e note that a showing of prior similar incidents on a proprietor's premises is not always required to establish that a danger was reasonably foreseeable. An absolute requirement of this .nature would create the equivalent of a one free bite rule for premises liability, even if the proprietor otherwise knew that the danger existed.” (Citation and punctuation omitted.)
Shoney’s, Inc. v. Hudson,
Judgment reversed.