The Georgia Supreme Court recently reinterpreted Georgia negligent security law by effectively narrowing the scope of when an Motion for Summary Judgement is viable for a premises owner, a decision that will very likely have a similar adverse impact related to security and property management companies (GEORGIA CVS PHARMACY, LLC v. CARMICHAEL.; WELCH et al. v. PAPPAS RESTAURANTS, INC.; WELCH et al. v. TACTICAL SECURITY GROUP, LLC).
In sum, the court ruled that most of the legal elements at issue are questions of fact for jury resolution. For example, one of the main defenses of these cases was that the criminal act was not reasonably foreseeable to trigger a duty by arguing there was no evidence of “substantially similar criminal conduct” on the premises. The court has stricken this standard, replacing it with the much broader “totality of the circumstances” standard and declaring the issue normally “reserved for the jury.”
In practice, in many cases involving a shooting on the premises, the defense could argue no liability due to lack of “substantially similar crime” on the premises such as no other shootings. Plaintiffs would counter, usually unsuccessfully, through testimony of a security expert that minor crimes such as car break-ins or property damage were somehow substantially similar. However, because the new standard requires consideration of the “totality of the circumstances” such as ANY crimes on the premises, the issue (and the plaintiff’s expert bolstered argument) will likely now require jury resolution.
In effect, the number of negligent security cases being dismissed by MSJ will be reduced substantially, thereby leading to trial. This is a significant risk in Georgia, which was rated the #1 Judicial Hellhole jurisdiction for jury trials for civil defendants.
The Supreme Court through this decision set out to answer five questions. A brief answer to each follows below, along with a more detailed analysis.
- For a claim brought under OCGA § 51-3-1 that alleges negligent security, to what extent, if at all, is proof that the underlying criminal act occurring on the premises was reasonably foreseeable part of the plaintiff’s burden to prove the elements of duty, breach, or proximate cause?
- Reasonable foreseeability of a third-party criminal act is a determination linked to a proprietor’s duty to keep the premises and approaches safe under OCGA § 51-3-1. They further hold that the reasonable foreseeability of third-party criminal conduct is properly considered as part of a proprietor’s duty to exercise ordinary care in keeping the premises and approaches safe under OCGA § 51-3-1
- In light of the answer to the first question, is a criminal act occurring on the premises reasonably foreseeable generally for the judge or the fact finder?
- The question of reasonable foreseeability is generally reserved to the trier of fact, but the trial court may resolve the issue as a matter of law where no rational juror could determine the issue in favor of the non-moving party.
- What is the legal test for determining whether a criminal act occurring on the premises was reasonably foreseeable? For example, is reasonable foreseeability determined based on the totality of the circumstances, or is some more specific showing required, such as prior, substantially similar crimes occurring on or near the premises?
- The totality of the circumstances informs whether a third-party criminal act was reasonably foreseeable.
- Case No. S22G0527: When apportioning fault, can a rational factfinder determine that an intentional tortfeasor whose actions directly caused the plaintiff’s injuries bears no fault for those injuries?
- The verdict apportioning no fault to the intentional tortfeasor is not inconsistent because, when considered in conjunction with the instructions to the jury, the verdict is capable of a viable construction.
- Case No. S22G0618: Under Georgia law, does a party rendering security services to the owner or occupier of property in a premises liability case owe a duty of care to third parties under any of the bases set out in Section 324A of the Restatement (Second) of Torts?
- A party rendering security services to a proprietor may owe a duty of care to third parties visiting the premises in accordance with the standard outlined in Section 324A of the Restatement (Second) of Torts.
The reality is this decision is a setback to negligent security defendants. Following this decision, a decision in favor of defendants in Summary Judgments will be much harder to obtain.
The impact of this decision will have on negligent security cases should be evaluated according to three factors: foreseeability, apportionment of fault, and security services duty of care to third parties.
Foreseeability is where this decision hurts defendants in negligent security cases the most. The Supreme Court has effectively removed “substantially similar” prior crime as a requirement to established foreseeability. Stating: “two of our prior cases might be read to suggest a bright-line rule requiring evidence of a “substantially similar” prior crime, we now reject any such reading. More specifically, this Court’s opinions in Sturbridge and Tyner include language that could be understood to require that, in every case pertaining to a proprietor’s liability for third-party criminal acts, the plaintiff cannot establish reasonable foreseeability without pointing to a substantially similar prior crime.”
The Supreme Court has decided that this approach is to restrictive and inflexible. The court expands that “substantially similar” crime may establish foreseeability, but it is not needed to establish foreseeability. Instead, the court said that foreseeability should evaluated with a totality of the circumstances, which in turn creates a jury question as to whether the proprietor should have reasonably anticipated the criminal act in question.
Furthermore, they show through Pappas Restaurants, Inc. v. Welch, that even if the subject premises has no history of crime, the surrounding area crime will be sufficient to raise a question of fact as to foreseeability of risk, turning foreseeability into a jury question. This decision, as read, significantly decreases the chance for a negligent security defendant to obtain Summary Judgment. This would be especially true in the Metro Atlanta area, where much of the area has a high crime rate. Furthermore, in changing the standard to be less rigid, the Supreme Court has created a standard with an ambiguous Brightline… They do not define where the Brightline is when it relates to how high crime needs to be in order to be classified as high crime, nor do they give a Brightline of how far the surrounding area has to be in order for it to be considered close enough to warrant attention. These questions will be determined by the Jury.
With this line of reasoning, in a summary judgment standard of light is most favorable to the opposing party, It will be very difficult for summary judgment to be granted in favor of the defendant. Foreseeability will from now on, almost always be a jury question.
Apportionment of Fault
The Supreme Court affirms that a “verdict that is contradictory and repugnant is void” and will be set aside in a civil case. On face value, this statement would appear to help defendants in negligent security cases when a third-party criminal is involved. Having said that, the Court’s further analysis of apportionment of fault is not in favor of negligent security defendants. Due to this, the Supreme Court, despite affirming the above quote, concludes that apportion of fault to the actual shooter (CVS) is not contradictory and repugnant. The Court says that a logical jury could have found that an intentional tortfeasor was not negligent in inflicting injury upon the plaintiff. See Reeves v. Bridges, 248 Ga. 600, 603 (284 SE2d 416) (1981) (“It is almost redundant to state that an essential element of an intentional tort is intent to commit the act.”). In other words, the jury could have reasonably believed that the unidentified shooter acted deliberately, as opposed to negligently, with an intent to do harm.
Thus, if the jury can reason that a tortfeasor acted intentionally, no fault would have to be assigned to the tortfeasor in negligent security cases.
Security Services Duty of Care to Third Parties
The Supreme Court states that a party providing security services as an independent contractor cannot be held liable under a theory of premises liability (since it’s a non-delegable duty unless full possession is given). However, a party providing security services still may be held liable in tort for the negligent performance of voluntarily undertaken duties because that party has a duty to use reasonable care in carrying out its voluntary undertaking.
The Supreme Court clarifies that third party security services are subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
For negligent security defendants, this means that security services can still be held liable to third parties if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Overall, these cases are a setback to negligent security defendants. First, because Summary Judgement will be much more difficult to be granted for the defendant, due to the foreseeability analysis. Second, because no apportionment needs to go towards the actual tortfeasor as long as it’s intentional. Third, the security services can still be held liable to the plaintiffs, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.