IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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NO. 99-10639F
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AMANDA SUMNER, Appellant,
v.
STAR ENTERPRISE,
a joint venture partnership between Texaco Refining
and Marketing (East), Inc. and Saudi Refining Inc., Appellee.
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
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BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION
IN SUPPORT OF APPELLANT'S POSITION FOR REVERSAL
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STATEMENT OF ISSUE FOR REVIEW
The following statement of the issue is taken from the brief of the
appellant:
Whether the trial court erred in granting summary
judgment in this premises liability case arising out of a criminal
attack at a Texaco station where the station had been the location
of numerous prior crimes which should have been sufficient under Georgia
law to create a duty to protect the store's customers, including the
plaintiff, Amanda Sumner, who was abducted from the Texaco car wash
at gunpoint.
SUMMARY OF ARGUMENT
The lower court erred in deciding that the subject crime
at the Texaco station was not foreseeable as a matter of law. Under
a proper application of Georgia law, the issue of foreseeability in
such cases is for the jury where the business in question has a prior
history of violent crime, and the court should not itself determine
whether differences between the prior crimes and the subject crime put
the business on notice of the danger of its property to its customers.
INTRODUCTION
The Georgia Trial Lawyers Association submits this brief
because it believes that the lower court's opinion in this case seriously
departs from the current legal analysis articulated by the Georgia appellate
courts in premises liability cases arising from criminal attacks on
business invitees. As a review of Georgia's recent seminal cases in
this area of the law reveals, after a brief departure, Georgia courts
have returned to traditional tort principles of foreseeability in assessing
when a business owes a duty to protect its customers based upon the
business' history of crime on its property. Whereas several decisions
had temporarily authorized courts to substitute for juries in deciding
whether a business was on notice of danger sufficient to create a duty
to protect the business' customers unless nearly identical crimes had
previously occurred, the Georgia Supreme Court has now restored the
law to a more flexible, functional approach which does not rely upon
artificial differences between crimes, but rather provides that juries
should usually decide when a property owner owes a duty to its customers
if the business has a history of prior crimes. Since it appears the
lower court applied the sort of artificial distinctions that have been
rejected in Georgia, this amicus curiae submits this brief in the hope
that it will assist the Court in assessing the correct state of Georgia
law.
ARGUMENT AND CITATION OF AUTHORITY
Under longstanding legal principles in Georgia, a business
owes a duty of reasonable care to protect the safety of its customers
while they are on the business' premises. O.C.G.A. § 51-3-1. This
duty of reasonable care is owed to all such invitees at all times, and
generally it is for juries to determine if the business has satisfied
its duty. Under traditional negligence principles, a duty to protect
a business' customers from violence or crime arises when the possibility
of such violence or criminal activity is reasonably foreseeable so that
the business is on notice of the potential danger. Lau's Corp. v. Haskins,
261 Ga. 491, 405 S.E.2d 474 (1991); see generally, Prosser, Law of Torts
§ 33, at 170 (4th ed. 1971).
Through the years, the courts have defined what it takes to put a business
on notice of the foreseeable danger to its customers. The Georgia courts,
as courts everywhere, have consistently held that foreseeability is
always a jury issue except in the most extreme of cases. There are several
easily classified categories of evidence which put a business on notice
and which comport with a common sense understanding of when a reasonable
business should be concerned for the safety of its customers. One obvious
method of demonstrating notice is through the presentation of evidence
of prior substantially similar crimes on the property. It is this method
of proof which this amicus curiae party wishes to address for the Court.
Georgia tort law has traditionally adhered to the classic doctrines
of foreseeability so that it has been for the jury to determine when
a business is on notice of foreseeable danger to its customers. In the
early parts of this decade, the law in Georgia regarding the evidence
necessary to put a business on notice of danger to its customers became
misguided as several opinions applied an artificial concept of foreseeability
such that plaintiffs were unable to withstand summary judgment unless
their perpetrators had mimicked the crimes of someone before them, even
if the business' property was known to be potentially dangerous. For
example, in Savannah College of Art and Design v. Roe, 261 Ga.764, 409
S.E.2d 848 (1991), college students living in a dormitory were sexually
assaulted in a dormitory where, although there had been no sexual assaults,
there had been incidents of vagrancy and "peeping toms." Id.
at 850. The Georgia Supreme Court held that the College owed no duty
to protect the students because "it is undisputed that the college
had no knowledge of any criminal sexual assaults previously occurring
at the college." Id.
Beginning in 1995 with its holdings in Days Inn of America v. Matt,
265 Ga. 235, 454 S.E.2d 507 (1995) and Sturbridge Partners Ltd. v. Walker,
267 Ga. 785, 482 S.E.2d 339 (1997), the Georgia Supreme Court returned
to the traditional analysis which places the issue of foreseeability
with the jury. In Sturbridge, an apartment tenant was raped and sodomized
in her apartment. The apartment complex had been the site of three prior
burglaries which had occurred in unoccupied apartments. Id. at 785.
There had been no prior sexual assaults and in fact no prior crimes
against persons as opposed to property thefts. Id. at 787. The Georgia
Supreme Court held that a jury question existed as to whether the apartment
management owed a duty to safeguard its tenants. Id. It specifically
overruled the analysis that had been articulated in Savannah College
where a plaintiff was required to show near identity of prior crimes
and instead emphasized a flexible approach to determining when a business
is on notice of the danger to its patrons: "What is required is
that the prior [incident] be sufficient to attract the [landlord's]
attention to the dangerous condition which resulted in the litigated
[incident].' Further, the question "of reasonable foreseeability"
of a criminal attack is generally "for a jury's determination rather
than summary adjudication by the courts." Id. (Citations omitted).
Although the parties are much better equipped to advise the Court on
the facts of the subject case, a reading of the lower court's opinion
makes it apparent that the lower court erred by requiring the Plaintiff
to show basically identical prior crimes when the record was replete
with evidence of a criminal history which should have alerted the Texaco
management of the "type of activity" its customers faced,
to use the words of the Sturbridge court. Sturbridge, 267 Ga. at 786.
The lower court acknowledges record evidence of 18 prior crimes occurring
at the Texaco, including a number of crimes of violence, of which kidnapping
certainly is a "type". (R5-49-12, Lower Court Order, p. 12).
Yet, the lower court finds as a matter of law that these numerous prior
crimes did not place the Texaco management on notice of the possibility
of danger to its customers. In so doing, the lower court appears to
have itself engaged in a classic jury inquiry into the fine details
of these prior crimes which is exactly the sort of analysis rejected
by recent decisions.
For example, the lower court emphasizes that the subject crime occurred
in the Texaco's car wash whereas the prior crimes had occurred in the
parking lot and inside the convenience store. (Id., p. 18.) The lower
court makes the apparent factual finding that the car wash is an "open
area" which somehow distinguishes it from the parking lot and convenience
store where the prior crimes occurred. (Id., p. 19.) Although it is
difficult to perceive how a court can find as a matter of law that an
operating car wash which is inside a car wash building constitutes a
more "open" area than a convenience store or a parking lot,
the larger point is that the lower court's analysis is flawed because
it draws fine, unprincipled distinctions between the prior and subject
crimes and ignores the fundamental issue under Georgia law which is
whether the prior crimes were "sufficient to attract [Texaco's]
attention to the dangerous condition." Sturbridge, 267 Ga. at 786.
Although a jury could conceivably find that the Texaco management was
justified in concluding that violent crimes occurring in its parking
lot and store just feet from the car wash did not portend the possibility
of crime also occurring in the car wash, the record appears to be replete
with evidence from which a jury could also find to the contrary. For
example, the record reflects that the Texaco employees themselves were
afraid of the car wash at night. Moreover, the fear of crime was apparently
sufficient that the Texaco management protected its employees at night
by locking the doors to the convenience store to keep criminals outside.
Yet, under the lower court's reasoning, the Texaco management did not
have any reason to address the possibility that the criminals who were
now locked out of the store would commit their crimes in the only other
enclosed structure on the property, the car wash. This type of reasoning
in another case could justify the conclusion that crimes occurring in
a supermarket's produce section do not constitute notice of the possibility
of crime occurring near the check out line. The law simply no longer
supports removing the question of foreseeability from a jury based upon
artificial distinctions between prior criminal conduct on a defendant's
property.
CONCLUSION
Because it is important for the law in this circuit
to be consistent with the Georgia law on state law issues, and because
the lower court's opinion here represents a clear departure from the
trend of the Georgia courts on this subject, this amicus curiae party
respectfully urges the Court to reverse the opinion of the court below.
This_____day of June, 1999.
/s/ Robert E. Shields
Doffermyre, Shields, Canfield, Knowles & Devine
1355 Peachtree Street; Suite 1600
Atlanta, Georgia 30309
(404) 881-8900
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