- Practice Areas
- Request Our Book
If you get in a fight and later the people you fought with shoot you, you cannot recover from the property owner because you knew about the danger more than the property owner did.
In a recent Georgia appellate case, the court considered the shooting and killing of a man on the premises of the Underground Atlanta shopping and entertainment district. His parents sued the occupier of the property and the security company for wrongful death. His estate also asserted personal injury claims. The court threw the case out when summary judgment was granted to the defendants, and the plaintiffs appealed.
The case arose when the 23-year-old victim was shopping at the district with a friend. There was an altercation in which the eventual shooter and his friends came up to the two young men. The victim’s friend threw a fire extinguisher at three men, and a fight broke out. Ten seconds later, the victim threw punches. Eventually, the three attackers left the lobby. One of the attackers shot the victim on the stairs that led from the plaza to street level. There were no eyewitnesses to the shooting, although there was surveillance footage of the prior fight.
The trial court granted the defendant occupier’s motion for summary judgment, based on its conclusion that the victim was a mutual fighter in the incident that ultimately resulted in his injury. Since he’d been fighting too, he had a knowledge of the danger that was greater than the property occupier’s knowledge.
Remember, negligent security cases are all based on situations where the property owner knows more about the danger than you do.
The court also granted the security firm’s motion for summary judgment, finding there was no duty owed to the victim as a third-party beneficiary to the security company’s contract with the occupier and no evidence it had acted in any way that increased the danger to the victim.
On appeal, the plaintiffs argued that there was a factual question about whether the victim voluntarily got into a fight with his attacker and therefore whether he had better knowledge of the risk. The appellate court explained that in Georgia, a land occupier owes a duty to use ordinary care to keep the premises safe under OCGA § 51-3-1. The occupier doesn’t ensure the safety of invitees but only has to use care to protect them from those unreasonable risks of which it has better knowledge.
Intervening criminal acts by third parties usually keep an owner or occupier from being held liable except when the crime was reasonably foreseeable. However, if the owner or occupier has reason to anticipate there will be a crime, it needs to use ordinary care to protect invitees from injuries. The basis for this liability is the occupier’s superior knowledge that there is a condition that could result in an unreasonable risk of harm. When someone is hurt because of mutual combat, the people in the fight are considered to have superior knowledge of the risks because they’ve chosen a date, time, and place for the fight. The fact of a prior criminal act on the property is irrelevant to them and can’t be the basis for liability. In this case, the victim had knowledge superior to the occupiers of the danger of retaliation by the people with whom he was fighting at any point during the fight. This included the shooter. There was no basis for holding otherwise because the fighting plaintiff didn’t know his attackers or was shot by someone other than the person who started the fight. The appellate court held that even if a plaintiff who gets into a fight is attacked by more than one person, he has knowledge superior to that of the property owner that there will be additional trouble, even if he’s hurt by a second assailant, as a matter of law. A momentary pause in fighting doesn’t change the relative knowledge of each of the parties.
Furthermore, the appellate court reasoned that in Georgia, an injured person can’t recover as a third-party beneficiary from a company that fails to perform a contractual duty unless it’s clear from the agreement that the parties entering into the contract intended to confer a direct benefit upon the plaintiff to guard him from physical injuries. The intent to benefit a third person must show on the face of the contract. In this case, the security contract never mentioned customers, patrons, shoppers, or visitors as a reason for the contract, so the security firm owed no duty directly to the injured plaintiff. That part of the holding is kinda BS.
The Atlanta wrongful death attorneys at Christopher Simon Attorney at Law have considerable experience representing families who have lost their loved ones due to negligence and other wrongful conduct, and they are prepared to assist you with a possible claim. If you believe you have a possibly meritorious claim and would like to discuss the options you may have for legal recovery, feel free to contact us to arrange a free case consultation.