Doe v. Briargate Apartments, Inc.

489 S.E.2d 170, 227 Ga. App. 408, 1997 Ga. App. LEXIS 946
CourtCourt of Appeals of Georgia
DecidedJuly 16, 1997
DocketA97A0328
StatusPublished
Cited by12 cases

This text of 489 S.E.2d 170 (Doe v. Briargate Apartments, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Briargate Apartments, Inc., 489 S.E.2d 170, 227 Ga. App. 408, 1997 Ga. App. LEXIS 946 (Ga. Ct. App. 1997).

Opinions

Pope, Presiding Judge.

Plaintiff Jane Doe was beaten, raped and robbed in her apartment by an intruder who had entered the apartment through a second-story window after prying part of a window pane away from the window and then removing a piece of glass from the window. She filed suit against the owner of her apartment complex, defendant Briargate Apartments, Inc., alleging that defendant was liable to her for failing to keep its premises reasonably safe by providing adequate security, see OCGA § 51-3-1, and for failing to adequately maintain her apartment and the premises of the complex in general, see OCGA §§ 44-7-13; 44-7-14. She also sought punitive damages from defendant. Defendant filed a motion for summary judgment regarding all of plaintiff’s claims. When the trial court granted the motion, plaintiff appealed. Upon review of the record, we conclude that there are issues of material fact in this case which preclude summary judgment as to plaintiff’s claims premised upon OCGA § 51-3-1, as well as her claim for punitive damages under OCGA § 51-12-5.1. We find no issues of material fact, however, which would preclude the grant of summary judgment as to plaintiff’s claims under OCGA §§ 44-7-13; 44-7-14.

1. In its motion for summary judgment, defendant argued that it owed no cognizable duty to plaintiff under OCGA § 51-3-1 and thus [409]*409could not be held liable to her for any alleged negligence under that Code section. We cannot agree.

“The general rule regarding premises liability is that a landlord does not insure tenants’ safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to ‘exercise ordinary care in keeping the premises and approaches safe.’ OCGA § 51-3-1. A landlord’s duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal acts. See Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995).” (Emphasis in original.) Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997). And, only “[i]f [a] proprietor has reason to anticipate a criminal act, [does] he or she then ha[ve] a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ ” (Citation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). For this to occur, however, the incident causing injury in the present case must be substantially similar in type to previous criminal activities occurring on or near the premises at issue so that a reasonable owner or occupier of those premises would take ordinary precautions to protect his or her tenants against the risk posed by that type of activity. See Sturbridge, 267 Ga. at 786; Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994).

In this case, the record demonstrates that plaintiff had herself been the victim of a previous attack in defendant’s apartment complex. Specifically, the record shows that while attempting to leave her apartment, plaintiff was confronted by a man who forced her back into the apartment, then assaulted and robbed her. It is undisputed that plaintiff reported this prior incident both to police and to defendant’s management. Although defendant argues that as a matter of law the prior incident cannot be viewed as substantially similar or as creating any issue as to the foreseeability of the subsequent criminal attack on plaintiff because plaintiff did not report that any sexual assault was involved in the prior incident, we find no merit to such an argument.

“In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. 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 [410]*410adjudication by the courts.” (Citations and punctuation omitted.) Sturbridge, 267 Ga. at 786.

Here, both the prior incident and the incident in question involved forceful assaults and robberies occurring within close proximity to one another, and they both involved breach of, or entry into, the confines of an apartment. As such, we conclude that the prior incident was sufficient to give rise to a triable issue regarding whether or not defendant had the duty to exercise ordinary care to safeguard its tenants against the foreseeable risks posed by the prior attack, assault and robbery of plaintiff in her own apartment.

Contrary to defendant’s assertion, to the extent that a jury may determine that defendant owed such a duty to plaintiff, the jury might also determine that defendant breached its duty under the facts presented here. While defendant had hired “courtesy officers” who in some part patrolled the apartment complex, there is some question as to whether they were patrolling the complex for the safety of the residents or merely to protect property. To the extent a jury could conclude that defendant had instructed the courtesy officers only to protect property, the jury could conclude defendant had failed to provide the security needed to protect its tenants from attacks and intrusions such as that suffered previously by plaintiff. From the facts of this case, a jury also could conclude that the length and extent of any patrols conducted for the tenants’ safety were inadequate in light of defendant’s knowledge of the previous attack on plaintiff and the very fact that the patrols of the premises on the date in question did not discover any intruder on a ladder trying to enter plaintiff’s apartment, or even the ladder itself after the intruder allegedly had made his entry. See Matt v. Days Inns of America, 212 Ga. App. at 796. And there is evidence from which a jury could conclude defendant breached its duty by failing to advise the courtesy officer on patrol on the date in question about the previous attack on plaintiff.

Additionally, contrary to the dissent’s and defendant’s assertion otherwise, the superior/equal knowledge rule does not preclude plaintiff from recovery under the facts of this case. That rule bars recovery only where the “plaintiff, knowing of the danger, could have avoided the consequences of defendant’s negligence with the exercise of ordinary care.” Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 159 (342 SE2d 468) (1986); see O’Steen v. Rheem Mfg. Co., 194 Ga. App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

WELCH v. PAPPAS RESTAURANTS, INC. (Two Cases)
316 Ga. 718 (Supreme Court of Georgia, 2023)
Jane Doe v. Archdiocese of Atlanta
761 S.E.2d 864 (Court of Appeals of Georgia, 2014)
Rice v. Six Flags Over Georgia, LLC
572 S.E.2d 322 (Court of Appeals of Georgia, 2002)
Wade v. Findlay Management, Inc.
560 S.E.2d 283 (Court of Appeals of Georgia, 2002)
FPI Atlanta, L.P. v. Seaton
524 S.E.2d 524 (Court of Appeals of Georgia, 1999)
Aldridge v. Tillman
516 S.E.2d 303 (Court of Appeals of Georgia, 1999)
Timberwalk Apartments, Partners, Inc. v. Cain
972 S.W.2d 749 (Texas Supreme Court, 1998)
Post Properties, Inc. v. Doe
495 S.E.2d 573 (Court of Appeals of Georgia, 1997)
Doe v. Briargate Apartments, Inc.
489 S.E.2d 170 (Court of Appeals of Georgia, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
489 S.E.2d 170, 227 Ga. App. 408, 1997 Ga. App. LEXIS 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-briargate-apartments-inc-gactapp-1997.