Case Law Update: Court Of Appeals Reaffirms That A Criminal Act On Property Must Be Foreseeable For Liability To Exist

In Medical Center Hospital Authority v. Cavender, 2105 WL 1303038 (Ga. Ct. App., March 24, 2015) the Georgia Court of Appeals reversed the denial of summary judgment to defendants in a premises liability case involving the criminal acts of third party. The case involved a shooting attack at a hospital in which a shooter entered the hospital with concealed weapons and shot a doctor and another individual inside the hospital, then shot another person in the parking lot and exchanged gunfire with law enforcement resulting in him being shot and apprehended. The court focused on the main argument by all defendants, that incident was not foreseeable and therefore no liability. As has been well established under Georgia law, “a property owner is not an insurer of an invitee’s safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable.” Id., at *3. Essentially, in the absence of “foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises.” Id. One way that foreseeability can be established is to determine if the property owner had knowledge of substantially similar prior criminal activity. In analyzing whether previous criminal activity is substantially similar a court must look at location, nature and extent of the prior criminal acts and their relationship to the crime in question. Id., at *4. The prior incident(s) must be sufficient to attract the attention of the property owner to the alleged dangerous condition which resulted in the litigated incident. Id. If no substantial similarity is shown then the alleged prior criminal acts are irrelevant as a matter of law. Id. It is a plaintiff’s burden to establish that the property owner had knowledge of the prior substantially similar criminal activity. Id.

In Cavender, the Court of Appeals found that of the 11 police reports detailing prior incidents on the hospital property none involved any significant injury and the majority involved only verbal threats. Id., at *5. Out of the 32 police reports of prior incidents on neighboring property only two involved the use of a weapon (late night armed robberies), neither of which included the discharge of a weapon, both of which occurred over five years prior to the shooting at issue. Id. The Court of Appeals concluded that those two instances of armed robberies on the neighboring property over five years prior to the shooting did not show that the shooting was foreseeable by the hospital. Id. In addition the Court of Appeals noted that there was no evidence that the defendants were aware of the criminal activity cited by the plaintiffs and noted that the police reports themselves did not establish that defendants had notice of the activities contained in the reports. Id.

While this case is not a departure from existing law it reaffirms the standing requirements that a plaintiff must show a criminal act was foreseeable based upon substantially similar criminal activity and that the property owner actually had knowledge of such criminal activity. Otherwise as in Cavender, the property owner is entitled to summary judgment.

Lara P. Percifield