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Rape and Assault Cases at Apartments and on other commercial properties are one of our practice areas. These cases are known in the industry as negligent security cases. This refers to the failure of the landlord to provide adequate security to protect tenants. We have handled these cases all over Georgia including Roswell, Stone Mountain, Alpharetta, Tifton, Jonesboro, Riverdale, and Marietta.
The core components of a workable negligent security case are:
Our firm lawyers defended these cases for insurance companies for years and are familiar with how to attack the defenses. Step one is always a thorough analysis of the prior crime in the area.
Woodall v. Rivermont Apartments Ltd. Partnership, 239 Ga. App. 36 (1999)
Wal-Mart Stores Inc. v. Lee, 290 Ga. App. 541 (2008)
Days Inn of America v. Matt, 265 Ga. 235 (1995)
Drayton v. Kroger Co., 297 Ga. App 484 (2009) (prior assault in the parking lot did not put the store on notice of personal crime inside the store)
Walker v. Aderhold Properties, 303 Ga. App. 710 (2010) is a recent apartment rape case that does a good job of summarizing the state of the law in Georgia.
Good Facts: Evidence of broken gates, a malfunctioning back door, a higher-end property, malfunctioning security gates. Video testimony from the perp that they got in through the malfunctioning gate.
Bad Facts: No prior person on person crimes, only three prior unoccupied burglaries. Video of perp was arguably not admissible.
The defendants moved for summary judgment on common lines.
1. The Court pointed to the classic Sturbridge case and ruled that burglaries are dangerous enough to cause businesses to anticipate personal crime. The defendant foolishly tried to argue that the police reports and incident reports were hearsay, but remember the issue is notice to the complex, not the truth that the prior crimes occurred. Exception to hearsay. They did not even get to business records exception. The analysis ran like this:
“Finally, as discussed earlier, the fact that the prior incidents involved property crimes -burglaries- rather than personal crimes -sexual assaults- does not absolve the defendants of liability as a matter of law. As our Supreme Court has noted, such a rigid approach to determining foreseeability is not in keeping with either common sense or existing law. See Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997). The question here is whether, by virtue of their knowledge of the prior burglary reports, the defendants should have reasonably anticipated the risk of harm to a tenant. See id. at 787, 482 S.E.2d 339. ”
Walker v. Aderhold Props. Inc., 303 Ga.App. 710, 694 S.E.2d 119 (Ga. App., 2010)
2. The videotaped statement of the perp that they got in through the open gate was an out of court statement offered to prove the truth of the matter asserted. But, the perp is a party and therefore it is admissible as an admission by party opponent. Boom. Admissible. There is evidence of causation for the jury!
This case illustrates the principle that there had better be good prior crime and some evidence of how security break downs lead to the crime at issue.
As part of the sweeping tort reform legislation, Georgia law was changed and now the jury has to apportion blame by percentage between the apartment complex and the assailants, whether they are known or unknown. Initially, there was great fear in the community that juries would assign an enormous percentage of the blame to the assailant, leaving no way to recover for the loss or injury. That has not happened for the most part.
There is one verdict I am aware of in 2014 where the jury apportioned 95% to the assailant and only 5% to the complex, but that was an outlier. More common is a 2015 verdict in Afari-Opoku v. Camelot Club et al., wherein the jury apportioned 50% of the responsibility to the three shooters and 50% to the complex and its security contractor. The victim was robbed and murdered and the jury returned a verdict of $3.25 million, of which $1.6 million could be recovered from the apartment and the contractor.
Security Guards Will Have Trouble Suing for Negligent Security After the Swope Decision
Although many security guards will acknowledge that the risk of violent injury comes with the job, many would also likely maintain that this risk should not be exacerbated by the negligent conduct of those capable of minimizing such hazards.
This dynamic is highlighted in Swope v. Greenbriar Mall Limited Partnership, a recent decision from the Georgia Court of Appeals. In Swope, a security guard at Greenbriar Mall in Atlanta brought suit against the mall’s owners and management after he was shot while on duty at the mall.
The shooting at issue, in this case, occurred on March 31, 2007. On that day, an unarmed public security officer was walking through the Greenbriar Mall on his way to the mall’s parking lot, where he had been assigned to patrol. Before arriving at the parking lot, he encountered several masked men near the entrance of a jewelry store. One of the masked men had a handgun, which he aimed at a patron. The public security officer intervened by covering the patron’s body with his own in order to shield the patron from the impending gunshots. Both the public security officer and the patron suffered bullet wounds as a result. After this clash, the masked men entered the jewelry store, shot a security guard who was stationed in the store, smashed the counter, and fled with various ill-gotten goods. Following the shooting, the public security officer shot outside the store brought a premises liability suit against the mall’s owners and management. The public security officer argued that the defendants’ negligent management and patrol of the mall resulted in the shooting and, as a consequence, his injuries.
During the pendency of the suit, the plaintiff died, and his estate was subsequently substituted to maintain the action on his behalf. The aforementioned defendants moved for summary judgment, arguing that the plaintiff public security officer assumed the risk because the harm encountered was of the variety inherent to his job. The trial court concurred and granted the motion.
On appeal, the plaintiff argues that granting the motion was in error. Generally, the assumption of risk rule states that when “one voluntarily and knowingly takes a risk involving imminent danger, he is precluded from recovery by reason of another’s negligence.” Baker v. Harcon, Inc., 303 Ga. App. 749, 754 (b) (694 SE2d 673) (2010). This defense to negligence liability requires the following three elements be met: the plaintiff must have actual knowledge of the danger, he must understand and appreciate the risk arising from that danger, and he must voluntarily expose himself to the danger. Id. In this case, the Court of Appeals held that the adduced evidence clearly showed the defense applied and further noted that the plaintiff even acknowledged that he intended to be a human shield and use his body to protect the patrons.
Notwithstanding the general applicability of the assumption of risk defense, the plaintiff argued that the assumption of risk should still not bar recovery for negligence because the rescue doctrine applied. “The rescue doctrine applies when [a defendant’s] negligent acts or omissions have created a condition or situation which involves imminent and urgent peril to life and property.” Griner v. Georgia Farm Bureau Mut. Ins. Co., 266 Ga. App. 289, 292 (2) (596 SE2d 758) (2004). Under these circumstances, the “negligent acts or omissions are also negligent in relationship to all others who, in the exercise of ordinary care … attempt to rescue the endangered life or property by reasonably appropriate means.” Id. However, the rescue doctrine only applies if the plaintiff was acting strictly as a volunteer or bystander Id.
The Court of Appeals held that the undisputed evidence showed that the public security officer was not acting as an innocent bystander but rather in his capacity as a security officer and analogized the case to Atlanta Braves v. Leslie, in which the court had held that the assumption of risk defense controlled in a premises liability action brought by an armed security guard shot by an armed robber despite invocation of the rescue doctrine. 190 Ga. App. 49, 50 (378 SE2d 133) (1989).
Finally, although the plaintiff further argued that shielding the mall patron exceeded the scope of his employment and thus rendered him a bystander or volunteer with respect to that act, the court found this line of argument unavailing. While there is a paucity of Georgia case law on the issue, the court referred to the reasoning of an analogous Arizona appellate court case, in which the court held that a law enforcement officer who was on the scene of an accident as a result of on-duty obligations could not invoke the rescue doctrine by arguing that extracting a driver from a car fell beyond his defined employment duties because the officer was “on the scene as a result of his on-duty obligations.” Read v. Keyfauver, 308 P.3d 1183 (Ariz. App. 2013). Similarly, the public security officer shot, in this case, was at the scene as a result of his employment and did not assume the role of a volunteer simply by acting to a degree that was in excess of his defined responsibilities. See also Griner, 266 Ga. App. at 292 (implicitly holding that wrecker operator could not invoke rescue doctrine since he was at the scene as a result of a contractual duty).
Although one can see that the assumption of the risk doctrine is quite strong for security personnel injured while combating criminal conduct, many other employees and mall visitors could have been harmed as a result of the defendant’s alleged failure to adequately secure the mall. Indeed, even though some people may assume these risks, property owners are generally liable for failing to provide adequate security.
If you’ve recently been injured as a result of inadequate security, you should consider consulting knowledgeable counsel to assess your options. The Atlanta premises liability attorneys at Christopher Simon Attorney at Law have considerable experience with these claims and are ready to address your questions. Feel free to contact us for a free case consultation.
Interesting Appeal on a Hospital Employee Accused of Sexually Assaulting Patients
We recently covered a Georgia Court of Appeals decision involving the sexual assault of a patient at a dentist office, and although we would like to believe that these acts are truly uncommon, a review of recent decisions demonstrates that they are far more common than people may think. Indeed, in a recent ruling, Little-Thomas v. Select Specialty Hospital-Augusta, Inc., the Georgia Court of Appeals reversed in part a trial court ruling dismissing the claims of a patient raped at a hospital in Augusta.
The incident at the heart of Little-Thomas occurred in June 2009. At that time, the plaintiff was transferred to an acute long-term care hospital in Augusta to continue her recovery for treatments received at a different hospital. After several days in the hospital, the plaintiff was sexually assaulted and raped by a hospital employee. The plaintiff did not report the attack until days later when she began to feel pain and was concerned about a possible infection. Following an investigation, the employee confessed to the rape and was criminally charged. The plaintiff brought suit against the hospital, arguing various forms of negligence, including respondeat superior, premises liability, and negligence in hiring, retention, and supervision. The hospital moved for summary judgment, and the trial court granted the motion, finding that there was insufficient evidence to create a triable issue of fact regarding the reasonableness of the hospital’s employment procedures, the foreseeability of the rape, and the hospital’s knowledge of the risk of employee sexual assaults. The Georgia Court of Appeals, however, viewed the evidence differently and reversed much of the trial court’s ruling.
The Court of Appeals did agree that the plaintiff’s negligent hiring claim was properly dismissed. Indeed, although Georgia law demands “[a]n employer . . . to exercise ordinary care in [selecting] employees,” O.C.G.A. § 34-7-20, liability only exists if the employer knew or should have known of an employee’s tendency to engage in the particular conduct that led to the injuries at issue. See, e.g., Allen v. Zion Baptist Church, 328 Ga. App. 208, 213-14 (2014). Here, the evidence showed that the Hospital had followed standard hiring practices when they hired the employee and that they had uncovered no adverse information regarding his employability. Even though the plaintiff argued that a more thorough investigation would have uncovered information that he was previously terminated for discourteous behavior, the court reasoned that this information would not have made it foreseeable to the hospital that the employee would sexually assault a patient.
However, the court found that the plaintiff’s remaining claims had been dismissed in error, and they accordingly reversed that part of the ruling. First, Georgia law also compels an employer “not to . . . retain an employee the employer knew or should have known posed a risk of harm to others,” meaning “it is reasonably foreseeable from [that] employee’s ‘tendencies’ or propensities that [he] could cause the type of harm [suffered] by the plaintiff.” Munroe v. Universal Health Svcs., Inc., 277 Ga. 861, 863 (2004). As long as the tort at issue was “within the risk” posed by the employee’s tendencies, a negligent retention claim is actionable. Id. In reversing the trial court’s ruling on the negligent retention claim, the court looked at deposition testimony from fellow employees that suggested that the employee had been rough and rude with patients before. Moreover, there was evidence that in 2004 a patient’s son had reported an incident involving the patient having been touched inappropriately by the employee. Accordingly, there was sufficient evidence from which a reasonable jury could conclude the hospital knew or should have known that the plaintiff posed a risk to patients if retained.
For substantially similar reasons, the Court also reversed the dismissal of the plaintiff’s premises liability claim. Georgia law provides that when “an owner or occupier of land . . . induces or leads others to come upon his premises for a lawful purpose, he is liable . . . for injuries caused by his failure to exercise ordinary care in keeping the premises . . . safe.” O.C.G.A. § 51-3-1. With respect to third-party criminal conduct, a landowner may be liable if he “has reason to anticipate [the] criminal act.” Sturbridge Partners v. Walker, 267 Ga. 785, 786 (1997). The plaintiff put forth evidence showing that in the five-year period prior to this incident, there had been at least five complaints of sexual assault or misconduct at the hospital, including the aforementioned acts involving the employee. The court concluded that this evidence was sufficient to create a triable issue of fact regarding whether the hospital should have known of a security problem involving the sexual assault of patients.
Fortunately for this plaintiff, her claims will likely get heard by a jury of her peers. However, there are likely other victims like this plaintiff whose claims are lost during the protracted procedural and evidentiary back and forth that takes place prior to any trial. Indeed, negligence cases are incredibly fact-specific and, like all cases, take considerable effort to get from filing the complaint to recovery.
If you’ve recently been injured as a result of possible negligence, you should consider finding experienced counsel who can guide you through the process. The Atlanta negligent security attorneys at Christopher Simon Attorney at Law have represented many Georgia residents injured as a result of a defendant’s failure to provide reasonable security. If you’ve recently been harmed in this fashion and would like to discuss the merits of your potential claim, feel free to contact us to arrange a free case evaluation.