Georgia Supreme Court Decision Broadens the Scope of Liability in Negligent Security Premises Liability Cases
By: Kori Wagner and Marissa Merrill
The Georgia Supreme Court recently altered the scope of liability for proprietors, occupiers, and security contractors in negligent security premises liability cases. Under this new ruling, premises owners and occupiers need not have knowledge of a substantially similar prior crime to be charged with a duty to protect its invitees from third-party criminal acts. Instead, the court invoked a totality of the circumstances test to determine whether third-party criminal acts were reasonably foreseeable. This decision is likely to have severe implications for Georgia businesses, especially those situated in high-crime areas.
On June 29, 2023, the Georgia Supreme Court issued its ruling on three negligent security premises liability cases: CVS Pharmacy, LLC v. Carmichael, S22G0527; Welch et al. v. Pappas Restaurants, Inc., S22G0617; and Welch et al. v. Tactical Security Group, LLC, S22G0618. In the Carmichael Case, plaintiff James Carmichael was shot during an armed robbery in the parking lot of a CVS store and filed suit against CVS. In the Welch Cases, plaintiff Anthony Welch was killed during an armed robbery in the parking lot of a Pappadeaux restaurant where Tactical Security provided security. Welch’s spouse filed suit against the restaurant owner for premises liability and Tactical Security for negligently providing security on the property. The issues in these cases presented an opportunity for the court to address the relationship between elements of a premises liability case and the determination of reasonable foreseeability by the proprietor. On its main issues, the court ruled: (1) reasonable foreseeability of a third-party criminal act is linked to the proprietor’s duty, which is (2) informed by the totality of the circumstances, and (3) a security company may owe a duty to third parties on the premises for its performance of a voluntary undertaking pursuant to Section 324A Restatement (Second) of Torts. CVS Pharmacy, LLC v. Carmichael, 890 S.E.2d 209 (Ga. June 29, 2023).
Under Georgia law, the duty of a proprietor to keep its premises and approaches safe for invitees pursuant to O.C.G.A. § 51-3-1 extends to third-party criminal acts when such an act is reasonably foreseeable to the proprietor. Id. at 219. The question becomes whether the totality of the circumstances establishes that foreseeability, thus creating a duty of the proprietor to guard against that criminal activity. Id. at 222. Then the jury must decide “whether the proprietor’s security measures were reasonable, even though the criminal act was reasonably foreseeable.” Id. at 220. For example, “the factfinder must weigh the likelihood and severity of the foreseeable harm against the cost and feasibility of additional security measures in considering whether the duty owed was breached.” Id.
The court expressly rejected the notion that evidence of substantially similar prior crimes is a bright-line rule for reasonable foreseeability. Id. at 225. Rather, a fact-intensive “totality of the circumstances” analysis must be decided on a case-by-case basis. Now, reasonable foreseeability of a third-party criminal act can be established by evidence of substantially similar crimes, the location as a high crime area and the proprietor’s knowledge of a “volatile situation brewing on the premises.” Id. at 224. See also Martin v. Six Flags Over Georgia (II), L.P., 301 Ga. 323, 331 .
In another blow to proprietors, the court held prior crimes do not need to be identical to the subject incident to be relevant and again pushed the totality of the circumstances test – “the proximity, timing, frequency, and similarity of prior acts informed the question of reasonable foreseeability.” Carmichael, 890 S.E.2d at 227. The court took a step further and reversed the court of appeals ruling in Pappas v. Welch, which dismissed the premises liability action, explaining that the court of appeals was too quick to exclude different crimes without considering how they might still put the proprietor on notice of a dangerous condition. Id. at 229.
The court cautiously emphasized that evidence of the property’s location in a high crime area alone, is insufficient to establish a duty to keep the property safe from “every conceivable crime.” Id. at 224, Fn. 9. Yet it continued with its expansive ruling because, while substantially similar prior crimes are not required for this determination, “other circumstances may be relevant, too.” Id. at 226.
Given this ruling, defendant-proprietors will likely have a more difficult time prevailing on summary judgment in negligent security premises liability cases. Likewise, plaintiffs will have an easier time introducing and relying upon evidence of crimes and other circumstances using the “totality of the circumstances” test to defeat summary judgment and for evidence at trial. For example, in Carmichael, evidence was admitted stating female employees were regularly escorted to their vehicles and parked close to the building because of poor lighting. Id. at 226. The chance of excluding this evidence or “other circumstances” is minimal. Trial courts will be testing new waters as they interpret this ruling and decide on dispositive and evidentiary issues. It appears the Georgia Supreme Court is encouraging trial courts to send these cases to juries. Accordingly, this ruling will have a significant impact on how negligent security premises liability cases are litigated moving forward.
As for security companies, liability extends to the negligent performance of a voluntary undertaking pursuant to the requirements of Section 324A Restatement (Second) of Torts. Specifically, a security company can be held liable for personal injuries “if (a) his failure to exercise reasonable care increases the risk of harm, or (b) he has undertaken to perform a duty owed by the other to the third persons, or (c) the harm is suffered because of the reliance of the other or the third person upon the undertaking.” See Huggins v. Atena Cas. & Sur. Co., 245 Ga. 248, 249 (264 S.E.2d 1919) (1980) (adopting “the majority rule” as stated in Section 324A). So, while an independent contractor providing security cannot be liable under a theory of premises liability, they can be liable for a negligent undertaking and that duty is informed by the contract for security services. Carmichael, 890 S.E.2d at 234. Justice LaGrua, joined by Justices McMillian and Colvin, specifically commented on her concern about the impact this scope of liability has on proprietors who reside in high crime areas, who may be forced to cease operations or raise prices to offset costs of additional security measures, which in turn affects the residents of these areas and their access to resources. Id. at 237.
These are valid concerns as this ruling will likely increase the frequency of negligent security premises liability cases and may even affect the business decisions of proprietors (and their insurers) related to properties in high crime areas.
Georgia is already known for its nuclear jury verdicts. Where this ruling is expected to encourage negligent security premises issues to be decided by juries, evidence of serious prior crimes or dangerous conditions on the property will increase the risk to proprietors. As plaintiffs and defendants challenge the admissibility of relevant evidence in these cases, the case values – and jury verdicts – may also increase.
Attorney Contact Info
Kori Wagner
kori.wagner@swiftcurrie.com
404.888.6191
Marissa Merrill
marissa.merrill@swiftcurrie.com
470.639.4861