The “Carmichael Cases” and THE Totality of the Circumstances Analysis
By: Marvis Jenkins and Blake Reed
Recently, the Georgia Supreme Court collectively addressed issues raised in three premises liability cases: Georgia CVS Pharmacy, LLC v. Carmichael; Welch, et al. v. Pappas Rest., Inc.; and Welch, et al. v. Tactical Sec. Group, LLC. While the facts of these cases differ, “these cases present an opportunity to explore the scope and nature of the liability faced by premises owners, occupiers, and security contractors in cases involving personal injuries arising from third-party criminal conduct.”1 In Carmichael, a CVS patron was shot during an armed robbery in the parking lot and brought a premises liability action against the store.2 In Welch v. Pappas and Welch v. Tactical Sec. Group, LLC, a restaurant patron brought separate premises liability actions against the restaurant and its security company after the patron was injured and her husband killed in a shooting in the restaurant’s parking lot.3
For purposes of this article, the three most important questions addressed by the court in its analysis of these cases are:
1. For a claim brought under O.C.G.A. § 51-3-1 that alleges negligent security, to what extent, if at all, is proof the underlying criminal act occurring on the premises was reasonably foreseeable part of the plaintiff's burden to prove the elements of duty, breach or proximate cause?
2. In light of the answer to the first question, is the question whether a criminal act occurring on the premises was reasonably foreseeable for the judge or the factfinder?
3. What is the legal test for determining whether a criminal act occurring on the premises was reasonably foreseeable? For example, is reasonable foreseeability determined based on the totality of the circumstances, or is some more specific showing required, such as prior, substantially similar crimes occurring on or near the premises?4
The court’s analysis began by acknowledging Georgia case law on premises liability involving third-party criminal acts has not “plotted a clear roadmap for parties, litigators, or trial courts.”5 The statutory framework of O.C.G.A. § 51-3-1 requires a proprietor to exercise ordinary care in keeping the premises and approaches safe.6 The applicable case law that has developed over the years further defines a proprietor’s duty: “while a proprietor is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he has knowledge, he is not an insurer of an invitee's safety.”7 Finally, when an invitee is injured by a third party criminal act, the proprietor is generally insulated from liability, except where such criminal conduct is foreseeable.8
In Carmichael, the Georgia Supreme Court redefined and provides a new analysis for determining a reasonably foreseeable third-party criminal act.9 The court recognized there are numerous factors to consider in the reasonably foreseeability analysis, such as the nature of previous crimes, where those crimes occurred, when those crimes happened, what information the proprietor knew about the crimes and whether that information gave him reason to anticipate plaintiff’s injury.10 Because the issue of reasonable foreseeability turns on fact-specific circumstances, the court found the question of reasonable foreseeability is a jury question except where no rational juror could determine the issue in favor of the non-moving party.11
The Carmichael Court defined the totality of the circumstances analysis to determine the reasonable foreseeability of a third-party criminal act. In order to analyze the totality of the circumstances, the factfinder must determine whether the circumstances/conditions of the premises was sufficient to give the proprietor “reason to anticipate the criminal act” that injured plaintiff.12 Knowledge of criminal activity on or near the subject premises includes an analysis of the location, nature and extent of the prior criminal activities and their likeness, and proximity or other relationship to the crime in question.13 The court clarified that rulings in previous premises liability cases involving third-party criminal acts were not intended to define reasonable foreseeability to require a plaintiff to establish that substantially similar prior crimes occurred. Instead, while establishing previous substantially similar crimes may establish foreseeability, the determination more properly turns on an analysis of the totality of the circumstances.
In applying this analysis to the Carmichael and Welch cases, the court rejected many of defense counsel’s arguments regarding foreseeability. Namely, the court rejected arguments that prior crimes were dissimilar because they took place in a different location on the premises, the perpetrators of prior crimes were store employees and that previous crimes did not involve the use of a gun.
Ultimately, the court held: (1) in a premises liability action, the plaintiff can establish reasonable foreseeability of third-party criminal conduct without pointing to a substantially similar prior crime;15 (2) the issue of whether harm to a patron, namely being shot by a robber in the store's parking lot, was the kind of harm that was a probable and natural consequence of failure of store to take adequate security measures was for jury; (3) a jury verdict finding that the store was liable for the patron's injuries, but apportioning no fault to the shooter, was not inconsistent, and thus, jury verdict was not void due to inconsistency; and (4) a party rendering security services to the proprietor may owe a duty of care to third parties.
In practice, these holdings present new challenges defending premises liability cases involving third-party criminal acts and the totality of the circumstances analysis will make it significantly more difficult for proprietors to prevail on summary judgment.
This article provides supplemental information to the Client Alert written by Kori Wagner and Marissa Merrill and distributed by Swift Currie on July 12. The Client Alert is available for reference at swiftcurrie.com.
1 Ga. CVS Pharmacy, LLC v. Carmichael, S22G0527, 2023 WL 4247591, at *1 (Ga. June 29, 2023).
2 Id.
3 Id. at 3.
4 Id.
5 Id.
6 O.C.G.A. § 51-3-1.
7 Carmichael, S22G0527, 2023 WL 4247591, at *3; See Lau's Corp. v. Haskins, 261 Ga. 491, 492 (1), 405 S.E.2d 474 (1991). See also Martin v. Six Flags Over Georgia (II), L.P., 301 Ga. 323, 328, 801 S.E.2d 24 (2017) (same).
8 See Martin, 301 Ga. at 328 (II), 801 S.E.2d 24.
9 Id. at 5.
10 Id. at 6.
11 Id. at 8.
12 Id.
13 Id.
14 Id. at 10
15 Disapproving Camelot Club Condominium Assn., Inc. v. Afari-Opoku, 340 Ga. App. 618, 798 S.E.2d 241; Johns v. Housing Authority for City of Douglas, 297 Ga. App. 869, 678 S.E.2d 571; Wojcik v. Windmill Lake Apartments, 284 Ga. App. 766, 645 S.E.2d 1; Mason v. Chateau Communities, Inc., 280 Ga. App. 106, 633 S.E.2d 426; Walker v. St. Paul Apts., 227 Ga. App. 298, 489 S.E.2d 317; Doe v. Briargate Apartments, Inc., 227 Ga. App. 408, 489 S.E.2d 170; Hillcrest Foods, Inc. v. Kiritsy, 227 Ga. App. 554, 489 S.E.2d 547.
Attorney Contact Info
Marvis Jenkins
marvis.jenkins@swiftcurrie.com
404.888.6174
Blake Reed
blake.reed@swiftcurrie.com
470.639.4853