Georgia (March 28, 2019) – A crime occurs (aggravated assault, rape, murder, etc.) in an apartment complex, a parking lot, or outside a business. The victim suffers significant injuries or even death from the criminal act. The criminal perpetrator vanishes without a trace. The victim files suit against the property owner claiming the criminal attack was foreseeable and would not have occurred but for the owner's inadequate security measures. In Georgia, this basic fact pattern routinely gives rise to multi-million dollar jury verdicts against property owners and property management companies. Negligent security cases are often expensive to litigate, ill-suited for summary judgment, and unpredictable.
In the recent case of Bolton v. Golden Business, Inc., 2019 Ga. App. LEXIS 33, 823 S.E.2d 371 (2019), however, the Georgia Court of Appeals provided some much needed clarity on the issue of foreseeability. The defendant in Bolton was an owner and operator of various commercial properties, included a gas station and convenience store. On the night of October 23, 2015, Shaneku McCurty exited the convenience store after making a purchase. She was shot and killed by an unknown assailant in the parking lot as she walked to her car. Her mother and the administrator of her estate, Bolton, sued the property owner under a negligent security theory. The trial court granted summary judgment for the property owner and Bolton appealed.
In affirming the ruling of the trial court, the Court of Appeals began by outlining the legal framework as to foreseeability in a negligent security case. Georgia law requires a property owner to exercise ordinary care in keeping the premises and approaches safe for its invitees, but landowners are not required to insure an invitee's safety. The landowner's duty is to exercise reasonable care to protect its invitees from unreasonable risks of which it has superior knowledge. The Bolton court emphasized that a landowner cannot be liable for a third party criminal act unless it has reasonable grounds to expect that such an act would occur.
The plaintiff argued the landowner should have foreseen and taken steps to prevent the subject deadly assault because other violent crimes had occurred at the store and the store was located in a high-crime area. The landowner contended that it was not aware of the prior crimes cited by plaintiff, believed the convenience store to be generally safe and secure, and had never received a request for additional or different security.
The plaintiff sought to counter these arguments in two ways. First, she presented evidence that the convenience store had been outfitted with bulletproof glass and security cameras which suggested an awareness of potential crime. Second, she introduced police reports purporting to show "ongoing and rampant" crime in the area of the convenience store.
The Court of Appeals rejected the plaintiff's first argument, noting the property owner's testimony that they had placed bulletproof glass and cameras not just in this particular store, but in all its convenience stores for insurance reasons. As to the plaintiff's introduction of police reports to prove foreseeability, the Bolton court explained that Georgia law does not impose an affirmative duty upon a property owner to investigate police files to determine whether criminal activities have occurred on its premises. Thus, while police reports might show crimes had been reported to the police, such reports are insufficient in and of themselves to demonstrate a property owner's knowledge of the reported crime.
The Bolton court held that "[a]bsent evidence [the property owner] had reason to know about prior, similar criminal activity in the area, [the plaintiff] cannot establish that the attack . . . was foreseeable to [the property owner]." Because the plaintiff could not establish the foreseeability of the crime at issue, the Court of Appeals affirmed the trial court's grant of summary judgment for the property owner.
Bolton should not be considered a revolutionary holding or a sea change in Georgia's negligent security landscape. Rather, the case represents an attempt by the Court of Appeals to clarify and emphasize the plaintiff's burden of demonstrating a landowner's knowledge of prior, substantially similar crimes on the property. The key issue is the landowner's superior knowledge of criminal activity. The negligent security plaintiff bears the burden of demonstrating actual or constructive knowledge (e.g. an employee's admission as to knowledge of a crime, documentary evidence which should reasonably put the landowner on notice of a crime, etc.).
Bolton confirms that Georgia courts will not accept a "must have known" standard with respect to foreseeability. A property owner will not be charged with knowledge of prior crimes by implementing security measures, and it is not enough to show the occurrence of crime, even rampant crime, in the surrounding area. Bolton thus provides some level of predictability to an otherwise unpredictable area of litigation.
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