IN THE COURT OF APPEALS
STATE OF GEORGIA
SHEILA HOE, a minor,
by her Next Friend, TUCK HOE, Appellant,
v.
KMART CORPORATION, JIM KMENT,
DENNIS STACHECKI, FREDERICK
MARTIN and TED TAYLOR, Appellees.
APPEAL NO. A00A0543
 

Brief of the Amicus Curiae Committee
Georgia Trial Lawyers Association

Now Comes the GEORGIA TRIAL LAWYERS ASSOCIATION and files this Brief for consideration by the Court.

Rule 25 Disclosure. Amicus Georgia Trial Lawyers Association is an association comprised of members of the State Bar of Georgia committed to the preservation of the jury system. The Association, through its Amicus Curiae Committee, frequently submits briefs in favor of or in opposition to positions taken in the courts on a variety of issues. Amicus submits the within brief in support of the petition for certiorari filed in the present case.

ARGUMENT AND CITATION OF AUTHORITY

A. WHETHER A RETAILER IS LIABLE UNDER GEORGIA PREMISES LIABILITY LAW FOR VIOLENT CRIMINAL ATTACKS ON A CUSTOMER AT ONE LOCATION, WHEN IT HAS NOTICE OF PRIOR SIMILAR ATTACKS AT OTHER METROPOLITAN STORES, IS AN ISSUE OF FORESEEABILITY FOR JURY DETERMINATION, AND IS NOT SUBJECT TO SUMMARY ADJUDICATION.

Despite the Supreme Court’s pronouncement in Sturbridge Partners, LTD v. Walker, 267 Ga. 785, 482 S.E. 2d 339 (1997) that “the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.” Id., at 341, the trial court determined as a matter of law that similar criminal attacks at a separate location were not sufficient to sustain a claim of premises liability against a national retailer. By determining this issue as a matter of law, rather than an issue of fact to be determined by the jury, the trial court failed to properly apply the Sturbridge analysis. Since this specific issue is one of first impression, Amicus urges this Court to preserve the fact sensitive analysis of foreseeability set forth in Sturbridge by reversing the trial court.

In their briefs, Appellants and Appellees apply the factors set forth in Sturbridge to the facts presented in the case below to assert their respective positions on foreseeability. Their briefs illustrate that the issue of foreseeability is not subject to summary adjudication where the owner of the premises has reason to anticipate a criminal act. Under the Sturbridge analysis, where the Plaintiff has made a prima facie showing of a “reasonable anticipation” of an attack, then the ultimate decision maker is the jury. The trial court erroneously interpreted Sturbridge as requiring “location” as an essential element of the Plaintiff’s claim. To the contrary, Sturbridge did not set forth a bright line test of foreseeability, but rather set forth factors to be considered in the determination, such as “the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question” Id. at 341. The only requirement set forth by Sturbridge is that the “prior [incident] be sufficient to attract the [landlord’s] attention to the dangerous condition which resulted in the litigated [incident]”. Id., citing Matt v. Days Inns of America, Inc., 212 Ga.App. 792, 443 S.E.2d 290 (1994). Thus, whether a prior criminal act at one of a retailer’s metropolitan stores is sufficient to cause the retailer to anticipate a similar criminal act in its other stores is an issue for the jury to decide under the Sturbridge analysis.

The decision of the trial court, if adopted by this Court, would result in “a restrictive and inflexible approach” to premises liability law, which was criticized by the Supreme Court in the Sturbridge opinion. Id. at 340. Under the trial court’s analysis, no victim of a criminal attack could prevail on a premises liability claim without proof of a prior, similar criminal act at the precise location. Such a result runs contrary to the policy of Georgia premises liability law of protecting Georgia retail customers and invitees from foreseeable acts of crime. If a singular yet similar criminal act is sufficient to establish a jury issue as to foreseeability against a proprietor with one retail location, then prior criminal acts in other metropolitan locations should be sufficient to create a jury issue as to large retail establishments with numerous stores in a metropolitan area. In either case, the duty arises where the proprietor has “reason to anticipate” the criminal act.
Moreover, the justification for a limitation on foreseeability to the vicinity of prior crimes is ostensibly based on local conditions-e.g. surrounding neighborhoods; layout of land and building. Where similar conditions exist in metropolitan counties, the occurrence of a crime in one location gives some reason to foresee a crime in another. It certainly cannot be said, as a matter of law, that a retailer has no reason to anticipate a crime at its store in Dekalb County based on a similar crime in Cobb County. The jury should be permitted to weigh those various factors in determining the issue of foreseeability.

In the case at bar, Appellant maintains that Kmart failed to adequately protect their customers, in part due to their failure to maintain security cameras and their use of tall merchandise shelving which interfered with visibility down the aisles. (Appellant’s Brief, p. 4). Appellants further maintain that the design of the Doraville store is substantially similar to the design of Kmart’s other stores. If store design is proven to be a contributing factor to the act of violence sustained by the minor child, then the location of the prior criminal act would not be a controlling factor, since the same act could occur at any location employing the same or similar layout.

In recent opinions of this Court on premises liability issues, this Court has followed Sturbridge and has allowed the jury, not the trial court, to consider the foreseeability issue. In Woodall v. Rivermont Apartments, Ltd., 239 Ga. App. 36, 1999 WL 463024 (1999), this Court reversed the trial court’s exclusion of certain evidence of various property crimes and the defendant’s knowledge of those crimes. This Court reasoned that if the occurrence of prior crimes attracted the attention of the defendant, the prior crimes are relevant to the issue of foreseeability. Id. In FPI Atlanta, L.P. v. Seaton, 1999 WL 993727, (1999), this Court upheld the trial court’s denial of summary judgment on the grounds that factual issues existed as to the foreseeability of the prior to criminal acts. The same reasoning applies to the case at bar.

Finally, Amicus disagrees with Appellees’ assertion that a reversal would turn proprietors into insurers of their invitees’ safety. The foreseeability requirement set forth in Sturbridge ensures against that result. Amicus seeks only to preserve the duty imposed by Georgia law upon proprietors to act reasonably to protect its customers against violent crimes such as the reprehensible act of violence which took place in the present case.

CONCLUSION

For the foregoing reasons, Amicus requests that this Court reverse the trial court’s entry of summary judgment.

/s/ Ralph L. Taylor, III, P.C.
2160 Morningside Drive
Suite 200
Buford, Georgia 30518
(770) 831-7770
Facsimile: (770) 945-0294