IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 99-10639F
AMANDA SUMNER, Appellant,
v.
STAR ENTERPRISE,

a joint venture partnership between Texaco Refining
and Marketing (East), Inc. and Saudi Refining Inc., Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION
IN SUPPORT OF APPELLANT'S POSITION FOR REVERSAL

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