In two consolidated cases, the Georgia Supreme Court examined the extent of liability faced by premises owners, occupiers, and security contractors in personal injury cases involving third-party criminal conduct.
A win in these cases was critical for maintaining the right to hold defendants accountable for taking safety risks with their customers.
We got a win. While no earth-shattering new law comes out of this opinion, there is a clarification of key points that will make it more difficult for defendants to win summary judgment in negligent security lawsuits in Georgia. And that is a big deal.
The Two Cases
The appeal involved two separate Atlanta-area negligent security lawsuits
Georgia CVS Pharmacy, LLC v. Carmichael
James Carmichael was shot during an armed robbery in the parking lot of a CVS store. Carmichael brought a premises liability lawsuit against CVS, alleging that CVS had failed to implement adequate security measures to safeguard its property, such as having security guards or improved lighting in the parking lot.
During the trial, numerous current and former employees of the Moreland Avenue CVS store testified about the store’s conditions. They highlighted that the store was situated in a high-crime area and expressed concerns about the safety of the parking lot. Male employees regularly accompanied female employees to their cars, and employees preferred parking close to the building due to inadequate lighting. Witnesses at the trial testified that they were not surprised by the shooting incident involving Carmichael.
One CVS supervisor testified that security guards had previously been present at the store, which made her feel safer. But CVS got rid of the guards over their employees’ objections, presumably to save money. Not surprisingly, three violent crimes. Plaintiff’s expert witness emphasized the deterrent effect of armed security, asserting that the robbery could have been prevented if CVS had employed security guards. The expert witness also criticized the inconsistent lighting in the parking lot, arguing that uniform lighting would discourage undesirable activities.
The jury assigned 95% fault to CVS, 5% fault to Carmichael, and 0% fault to both Gray and the shooter. The jury awarded Carmichael $42,750,000 in damages, reflecting 95% of the total verdict. CVS filed motions for a new trial and judgment notwithstanding the verdict, but the trial court denied the motions, leading to the present appeal.
Welch v. Pappas Restaurants, Inc
This case involved a shooting incident in the parking lot of Pappadeaux Seafood Kitchen in Marietta. A man was killed during an armed robbery in the parking lot. The assailants were later apprehended and convicted. Security footage showed the assailants entering the parking lot and lingering near their car before the attack. A security guard in a marked vehicle with flashing lights patrolled the area shortly before the shooting occurred.
Pappas owned Pappadeaux and another restaurant on the same property, each with its parking lot. The parking lots are well-lit and have surveillance cameras. Pappas hired Tactical to provide unarmed security guards for crime prevention and traffic assistance. On the night of the incident, multiple guards were assigned to patrol the parking lots.
The victim’s widow filed a premises liability claim against Pappas and Tactical. The trial court denied the defendants’ motions for summary judgment. But the Court of Appeals reversed, concluding that the shooting was not reasonably foreseeable, absolving the defendants of liability. The Court of Appeals also ruled that Tactical did not owe a duty to the plaintiffs under the Restatement (Second) of Torts.
Foreseeability in Negligent Security Lawsuits in Georgia
The common battle in both lawsuits is how to view foreseeability in negligent security lawsuits in Georgia.
Duty of Care and Reasonable Foreseeability
The reasonable foreseeability of a crime informs the duty owed by property owners in negligent security cases. The court focused on the statutory and decisional laws governing these cases, prioritizing the foreseeability analysis in determining the duty of care.
The court agreed with proprietors that reasonable foreseeability factors into the analysis of the duty element. Without foreseeability, no duty arises for the proprietor to exercise ordinary care to prevent criminal acts. But if a proprietor can reasonably anticipate a criminal act, they must exercise ordinary care to prevent injury from dangerous characters. So the duty to protect invitees from third-party criminal conduct hinges on foreseeability.
Who Decides Foreseeability?
Who decides this question of whether the criminal act is foreseeable? While the existence of a legal duty is a question of law for the court, the question of whether a crime was reasonably foreseeable is generally left to the jury. That means letting a jury decide what is reasonable. The jury makes that decision by looking at the totality of the circumstances. Factual circumstances, such as previous crimes on or near the premises, knowledge of the proprietor, and the nature of the crimes, inform the foreseeability assessment.
Sure, there are cases when the judge can take the decision away from the jury. If no rational juror could find the criminal act reasonably foreseeable, the trial court may resolve the issue as a matter of law through summary judgment. But if a reasonable person could see the issue either way, the matter should be left for the jury to decide. Reasonable foreseeability, the court instructs us, cannot be determined through a mechanical formula but must be made on a case-by-case basis. This requires a nuanced analysis that considers each situation’s unique circumstances.
This is an important instruction to Georgia trial judges to err on letting negligent security claims go to trial.
Reasonableness Balances Likelihood and Severity of Foreseeable Harm
The court’s opinion highlighted that the reasonableness of security measures is determined by balancing the likelihood and severity of foreseeable harm against the cost and feasibility of additional security measures. If a factfinder deems the security measures reasonable in light of the circumstances, or if the plaintiff fails to demonstrate a violation of the standard of care, there is no breach of duty and no finding of negligence.
So this is just another way of saying it is all about the totality of the circumstances. This approach requires an evaluation of all relevant factors in each case to assess whether the proprietor had sufficient reason to anticipate the criminal act that caused the plaintiff’s injuries. No bright line rules require specific types of evidence to establish reasonable foreseeability. Prior cases should not be interpreted as imposing a rigid requirement of substantially similar crimes. The court underscored that the focus remains on the totality of the circumstances, and evidence of past crimes is only one factor among others.
Applying the Law to Both Cases
Carmichael
In Carmichael, the court affirmed the judgment, finding that prior crimes need not be identical to those in question to establish foreseeability. The court’s decision emphasizes the totality of the circumstances and rejects CVS’s arguments that the previous crimes were not substantially similar.
CVS argued that the prior crimes were not substantially similar to the incident in question. The court rejected this argument, stating that prior crimes need not be identical to be relevant evidence of foreseeability. The proximity, timing, frequency, and similarity of the prior acts were considered in determining whether the crime at issue was reasonably foreseeable. Of course, the exact crime will never be foreseeable. It is the general harm that courts need to review. So the focus of the duty analysis is on the foreseeability of the incident causing an injury rather than the resulting injury itself.
The Issue of Fault of the Criminal
CVS is understandably bitter about the notion that the convicted shooter was not found to be at fault. That makes sense on some level, right? Of course. In fact, taking it a step further, the jury found the victim 5% at fault and the shooter 0% at fault. That seems crazy. But not in the context of this specific legal negligence claim that the plaintiff brought.
CVS challenged the verdict as void in a post-trial motion, arguing that the jury’s failure to assign any fault to the shooter conflicted with the requirements of the apportionment statute. However, both the trial court and the Court of Appeals rejected this argument. The court granted certiorari to consider whether a jury could rationally allocate fault to CVS but no fault to the intentional tortfeasor.
While the court disagreed with the rationale employed by the Court of Appeals, it ultimately affirmed its decision. The court determined that, under the specific circumstances of this case, the verdict was not inconsistent. They rejected CVS’s argument that the jury’s finding was contradictory because it held CVS liable for failing to protect Carmichael from the intentional tortfeasor while finding no fault on the part of the tortfeasor.
The court emphasized that the apportionment statute does not authorize the jury to decline apportioning fault to a non-party if the evidence compels a finding that the non-party shares some fault for the alleged harm. The Court of Appeals’ reasoning, which focused on the statute’s use of the word “consider,” was rejected by the court. But the court concluded that, in light of the jury instructions to consider the fault of all persons or entities whose negligence contributed to the injury, a logical interpretation of the verdict is possible. It can be construed that the intentional tortfeasor was not negligent but acted deliberately with an intent to harm. Which is 100% correct. The shooter was not negligent. This was an intentional act.
Welch
In Wclch, the plaintiff challenged a ruling dismissing her case, arguing that detailed police reports on property crimes in the surrounding area established awareness of prior thefts, including firearm thefts, on the property. Her lawyers also pointed to multiple break-ins at nearby restaurants, hotels, and office complexes and an altercation involving armed assailants “down the street,” claiming that the defendant knew of these incidents.
The Court of Appeals had characterized this evidence as referring to incidents in an undefined “area” rather than specifically on Pappas’s property and deemed it insufficient to raise a question of fact regarding foreseeability.
The Georgia Supreme Court disagreed. It found that the analysis should consider, again, the totality of the circumstances and rejected the siloed approach taken by the Court of Appeals.
The evidence of similar past crimes was considered separately from other evidence, such as the defendant’s knowledge, which should have been evaluated together. The proprietor’s knowledge of all the circumstances should be assessed collectively to determine whether there was reason to anticipate the specific criminal act at issue.
The Court of Appeals also erred in excluding past crimes as relevant based on certain differences from the current incident without considering whether those crimes still put the proprietor on notice of a hazardous condition. The court emphasized that the frequency, proximity, or other similarities between the prior crimes and the incident at issue could raise a question of fact regarding reasonable foreseeability.
In this case, evidence of numerous break-ins, thefts of weapons from automobiles, and armed suspects in the vicinity could reasonably be considered in determining whether it was foreseeable that the break-ins could escalate into a violent encounter. Does this mean the court would side with Welch? No. It means a jury should decide this question.
Welch-Specific Issue: Does Logic Extend to Security Service Providers
In Welch, the court has established that parties rendering security services to landowners or occupiers may owe a duty of care to third parties. The trial court denied the security company’s motion for summary judgment, stating that questions of material fact remained regarding liability under Section 324A of the Restatement (Second) of Torts for the negligent performance of a voluntary undertaking. The Court of Appeals reversed this decision, holding that Tactical had no duty toward the plaintiffs and that Section 324A did not apply to premises liability claims.
So the court considered whether security service providers owe a duty of care to third parties based on Section 324A under Georgia law. In ruling that they do, the court recognizes Section 324A as an accurate statement of the common law.
The court emphasized that the duty imposed by Section 324A may arise when a party voluntarily undertakes services necessary to protect a third person or their property.
The court also rejected the notion that a security company, as an independent contractor, cannot be held liable under premises liability theory. Instead, a party providing security services can still be held liable for the negligent performance of its voluntarily undertaken duties.
Consequently, the Court of Appeals erred in concluding that Section 324A does not apply in premises liability cases.
Summary
The Georgia Supreme Court affirmed a $45 million verdict awarded to a man shot in the parking lot of a CVS pharmacy and revived a separate case brought by a widow after she and her husband were shot in the parking lot of a restaurant. The opinion clarified how premises liability cases involving criminal acts must be evaluated using case-by-case analysis based on the totality of the circumstances. Yes, the court simply reaffirmed previous precedent. But the take-home message for Georgia trial judges is to put these cases in juries’ hands, which is a big win for plaintiffs seeking to hold defendants accountable in Georgia negligent security lawsuits.