This blog explores the liability of property owners or occupiers of land under Georgia law for injuries sustained from third party criminal conduct in light of the Supreme Court of Georgia decision in CVS v. Carmichael, 326 Ga. 718 (2023).
A property owner or occupier owes a duty to invitees to keep premises and approaches safe. OCGA 51-3-1. "Retail Property Trust v. McPhaul, 359 Ga. App. 345, 347(1)(a) (857 S.E.2d 521) (2021)." Suresh & Durga, Inc. v. Doe, A23A0942 (Ga. App. Oct 31, 2023). However, the owner/ occupier is not an insurer of an invitees safety. Lau's Corp. v. Haskins, 261 Ga. 491, 405 SE2d 474 (1991).
Further, an owner/occupier is generally insulated from liability for injuries sustained by the intervening criminal acts of a third party . Martin v. Six Flags over Ga. II, 301 Ga. 323, 801 SE2d 24 (2017). An exception to this rule is where the criminal act was reasonably foreseeable. Suresh & Durga, Inc. v. Doe, A23A0942 (Ga. App. Oct 31, 2023) Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995). The owner/operator's duty extends only to foreseeable criminal acts. Doe v. Prudential-Bathe/A.G. Spanos Realty Partners, L.P., 268 Ga. 604, 605 (492 SE2d 865) (1997)
In order to establish a premises liability/negligence claim, a plaintiff must establish four elements: duty, breach of duty, causation, and damages. Retail Property Trust v. McPhaul, 359 Ga. App. 345, 347(1)(a) (857 S.E.2d 521) (2021). Suresh & Durga, Inc. v. Doe, A23A0942 (Ga. App. Oct 31, 2023); OCGA 51-3- 1.
DUTY
A property owner's duty of care extends only to foreseeable third party criminal acts. Thus, whether an owner/occupiers duty of ordinary care includes the specific duty to protect invitees against third-party criminal conduct hinges on foreseeability.
The relevant question is whether the incident causing the injury was foreseeable as opposed to the foreseeability of the resulting injury.
Sturbridge, 267 Ga. at 786. If the criminal act was foreseeable, the owner/occupier has a duty of care to keep invitees safe from third party criminal conduct.
BREACH
The second element of a premises liability negligence claim is breach of duty. In determining breach the question is whether the proprietor acted reasonably in the face of the particular foreseeable risk or whether the proprietor breached its duty to do so.
The factfinder must weigh the likelihood and severity of the foreseeable harm against the cost and feasibility of additional security measures in considering whether the duty owed was breached. Jackson v. Post Properties, Inc., 236 Ga. App. 701, 703 (2) (513 SE2d 259) (1999). In other words, A fact finder must decide whether the proprietor's security measures were reasonable even though the criminal act was reasonably foreseeable.
If the trier of fact deems the proprietor's security measures reasonable in light of the circumstances, or if the plaintiff fails to present evidence that the security precautions employed to protect against the particular foreseeable risk of harm fell below the applicable standard of care, then there was no breach of duty, and there can be no finding of negligence.
CAUSATION
Assuming the proprietor both owed and breached a duty to protect against criminal conduct, the question becomes whether the kind of harm that occurred was a foreseeable result of ( a probable and natural consequence of) the breach. Goldstein, Garber & Salama, LLC v. J.B. , 300 Ga. 840, 797 SE2d 87 (2017). The jury should not have to speculate that the measures the plaintiff is alleging were required would have prevented the third party criminal actor from completing the crime. Johns v. Housing Auth. for City of Douglas, 297 Ga. App. 869, 871-872 (678 S.E.2d 571) (2009); Suresh & Durga, Inc. v. Doe, A23A0942 (Ga. App. Oct 31, 2023)
DETERMINING REASONABLE FORSEEABILITY
According to the Georgia Supreme Court, “the pertinent question is whether the totality of the circumstances relevant to the premises gave the proprietor sufficient “reason to anticipate the criminal act” giving rise to the plaintiff's injuries on the premises.” Atlantic Coast Line R. Co. v. Godard, 211 Ga. 373, 377 (1) (86 SE2d 311) (1955).
In examine the totality of circumstances the jury may consider evidence of substantially similar prior criminal activity. Given the importance of prior criminal acts to proving foreseeability, this inquiry will be part of the typical premises liability cases arising from third-party criminal conduct. However, a plaintiff does not have to identify a past crime as a requirement of proving reasonable foreseeability.
Whether knowledge of such past crimes in fact gave the proprietor reason to anticipate the criminal act in question — i.e., whether the act was reasonably foreseeable — depends on the “location, timing, frequency, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, (482 SE2d 339) (1997).
Prior crimes need not be identical to the crime in question to be relevant evidence bearing on foreseeability. See Sturbridge, 267 Ga. at 787.
The jury may consider police reports and whether the area is labeled as a high crime area.
The factual questions to be resolved include such as the nature of the crimes, if any, that previously occurred on or near the premises, where and when those crimes happened, what information the proprietor knew about the crimes, and whether that information gave him reason to anticipate the harm that occurred.
Foreseeability can also be shown by the character of the business or its location in a high crime area . Restatement (Second) of Torts § 344 cmt. f (1965) (“If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons
However, even where certain similar crimes or a property's location in a “high-crime area” is considered under a totality of the circumstances, an assertion that a business is situated in a “high-crime area” is not, on its own, sufficient to establish a duty to keep the premises safe from every conceivable crime. See Lau's Corp., 261 Ga. at 493 (2) (proprietors need not warn invitees of a “generalized risk of crime”). Instead, as with other circumstances that may establish the reasonable foreseeability of a crime, the evidence presented must be sufficient to “attract the landlord's attention to the dangerous condition which resulted” and thereby require the proprietor to take ordinary precautions to protect customers against similar future crimes. Sturbridge, 267 Ga. at 786.
In conclusion, CVS v Carmichael clarified that the reasonable foreseeability of a third party criminal act is a determination linked to an owner's duty to keep the premises safe. Further, the standard of analysis is whether under the totality of the circumstances the third party criminal act was reasonably foreseeable.