Fair v. CV Underground, LLC

798 S.E.2d 358, 340 Ga. App. 790, 2017 WL 1020469, 2017 Ga. App. LEXIS 142

• Court: Court of Appeals of Georgia
• Decided: March 16, 2017
• Docket: A16A1633
• Status: Published

Opinions

Branch, Judge.

After Mychal Fair was shot and killed on the premises of the Underground Atlanta shopping and entertainment district, his parents Michael Fair and Elizabeth Flynn (“appellants”) brought this wrongful death action in the Superior Court of Fulton County against CV Underground, LLC, and Underground Management, LLC (collectively, “Underground”), as the occupier of the property, and IPC International Corporation, which was under contract to provide security services. Michael Fair also asserted personal injury claims on behalf of the decedent’s estate. In this Court, appellants argue that the trial court erred when it granted summary judgment to Underground and IPC because genuine questions of fact remain as to their responsibility for the decedent’s death. We find no error and affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted).

Although we view the record in the light most favorable to appellants, the relevant facts are not in dispute. On the afternoon of August 12, 2013, 23-year-old Fair was shopping at Underground Atlanta with a friend. At 3:47 p.m., surveillance video captured a brief altercation just inside the entrance from the fountains plaza to the indoor shopping area. The surveillance video, recorded at a low frame rate, shows Fair leaving through the glass doors, immediately followed by his friend. The video also shows the eventual shooter, Brandon Barnes, approaching, addressing, and walking beside a man in a blue-striped shirt; the two men looking out onto the fountains plaza, where the victim had just gone; and walking back to and out of the bottom left of the frame.

Twenty seconds later, Fair’s friend reenters the lobby and throws a fire extinguisher at three men who face him: a man in a red shirt, a man in a white shirt, and the man in the blue-striped shirt, with whom Barnes had previously communicated. Less than ten seconds after the fight begins, Fair can be seen throwing punches to the left of a floor-mounted sign in the lobby. As Fair continues fighting, Barnes moves from behind the floor-mounted sign to the front of the sign, where he watches the fight, gesturing as he does so. Barnes soon walks back behind the floor-mounted sign, but reemerges as the victim exits the lobby. Shortly afterward, the man in the white shirt and Barnes leave the lobby, walking out to the plaza one behind the other. Approximately 30 seconds later, judging from the alarm shown by onlookers, the shooting takes place out of view.

It is undisputed that Barnes shot Fair on the stairs leading from the fountains plaza to the street level above, although there is no direct evidence of precisely how much time elapsed between the time Fair and Barnes exited the indoor shopping area onto the fountains plaza and the shooting. There is no evidence regarding any interaction between Barnes and Fair after they exited the indoor shopping area, and the record contains no eyewitness account of the shooting itself. No one from IPC’s security staff was in the area inside the entrance during the fight, and no one was outside in the fountains plaza.

After a hearing, the trial court granted Underground’s motion for summary judgment, based on its determination that, as a matter of law, Fair was a mutual combatant in the incident that caused him injury and, therefore, had knowledge of the danger that was superior to Underground’s knowledge. In the same order, the trial court granted IPC’s motion for summary judgment on the grounds that IPC did not owe Fair any duty as a third-party beneficiary to its contract with Underground and that there was no evidence that IPC committed any act that increased the risk of harm to Fair. This appeal followed.

1. Appellants contend that the trial court erred in granting Underground’s motion for summary judgment because a question of fact remains as to whether Fair voluntarily entered into conflict with Barnes, and thus as to whether Fair had superior knowledge of any risk of harm posed by any of the fight’s participants, including Barnes. We disagree.

Under Georgia law, an owner or occupier of land owes its invitees a duty “to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. A proprietor is not the insurer of the safety of its invitees, but is bound to exercise ordinary care to protect its invitees from unreasonable risks of which it has superior knowledge. Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). Generally, an intervening criminal act by a third party insulates a proprietor from liability unless such criminal act was reasonably foreseeable. Lau’s Corp., 261 Ga. at 492 (1); see also Six Flags Over Georgia II v. Martin, 335 Ga. App. 350, 360-361 (2) (a) (780 SE2d 796) (2015), cert. granted on other grounds, Case Nos. S16C0743 and S16C0750 (September 6, 2016).

“If [a] proprietor has reason to anticipate a criminal act,” however, that proprietor “then has a duty to exercise ordinary care to guard against injury from dangerous characters.” Lau’s Corp., 261 Ga. at 492 (1) (citation omitted); see also Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997). A plaintiff may establish that a criminal act was reasonably foreseeable on the part of the proprietor by showing the proprietor’s knowledge of a pattern of prior “substantially similar” crimes on the premises “so that a reasonable person would take ordinary precautions to protect his or her [invitees] against the risks posed by that type of activity.” Sturbridge Partners, 267 Ga. at 786; see also Double View Ventures v. Polite, 326 Ga. App. 555, 560-561 (1) (a) (757 SE2d 172) (2014).

“But even if an intervening criminal act may have been reasonably foreseeable, the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” Ratliff v. McDonald, 326 Ga. App. 306, 313 (2) (a) (756 SE2d 569) (2014) (citation and punctuation omitted; emphasis in original); Vega v. La Movida, Inc., 294 Ga. App. 311, 315 (2) (670 SE2d 116) (2008). Specifically, when a person is injured in the course of mutual combat, the combatants are deemed to have superior knowledge of the risk of harm, because “by their voluntary participation, [the combatants] have selected the time, date, and place for the altercation.” Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1) (459 SE2d 465) (1995); see also Habersham Venture v. Breedlove, 244 Ga. App. 407, 411 (4) (535 SE2d 788) (2000). “Mutual combat exists where there is a fight with dangerous or deadly weapons and when both parties are at fault and are willing to fight because of a sudden quarrel.” (Citation omitted.) Sailors, 217 Ga. App. at 813 (1). In such a case, “[a]ny injuries to the combatants resulted from their own conduct[;] under such circumstances, the existence of prior criminal acts on the premises is irrelevant and cannot form a basis for liability on the premises owner.” Id.

Here, Fair had already engaged in combat, and thus had knowledge superior to Underground’s of any danger of retaliation by any of those persons participating at any point in the combat, including the shooter Barnes. Although appellants and the dissent would have it otherwise, nothing in our case law authorizes the reversal of summary judgment to a property owner on the grounds that a fighting plaintiff had no previous acquaintance with his attackers or was attacked by a person different, from those who initiated the fight. Thus in Rappenecker v. L. S. E., Inc., 236 Ga. App. 86 (510 SE2d 871) (1999), we held that even when a plaintiff who enters a fight is attackedby more than one person, he is held as a matter of law to have “knowledge superior to that of [the property owner] of the possible risk of additional trouble,” id. at 88 (2), including a second assailant who “joined in the ensuing criminal assault” and later pled guilty to aggravated battery. Id. at 87. Likewise, in Fagan v. Atnalta, Inc., 189 Ga. App. 460 (376 SE2d 204) (1988), we affirmed a grant of summary judgment to a bar owner when a patron who intervened to protect a female bartender from a group of men being ejected from the bar was beaten by the same group of men as a result. Without making any distinction between the stages of the brawl inside and outside the bar, we held that “an adult of ordinary intelligence will be held to be aware of manifest risk or danger of possible injury when he deliberately and voluntarily joins in an affray, as a matter of law.” Id. at 461 (citations omitted); see also Habersham, 244 Ga. App. at 409, 411 (4) (reversing denial of summary judgment to a bar owner and its operator when the plaintiff “voluntarily chose to enter into mutual combat with the assailants,” including not only the man the plaintiff hit with a baseball bat but also the man who stabbed the plaintiff in the back moments afterward).

Further, as the trial court aptly noted, “a momentary pause in the fight does not alter the relative knowledge of the parties.” Here, while the victim did exit the premises, he was immediately followed by the shooter and shot within 30 seconds. Thus in Porter v. Urban Residential Dev. Corp., 294 Ga. App. 828 (670 SE2d 464) (2008), we affirmed a grant of summary judgment to a property owner when a plaintiff entered a fight with a group which eventually included not only his initial assailant, but also, after a pause in the conflict, that assailant’s companions, who “ganged up on the decedent, who then sought to escape the confrontation.” Id. at 832 (2). We applied the familiar rule that “[a]ny injuries to the combatants resulted from their own conduct,” rendering the subject of prior criminal acts on the premises “irrelevant.” Id. (emphasis omitted).

In short, the undisputed facts here show that the decedent was “an active participant in a brawl that left him injured.” Sailors, 217 Ga. App. at 813 (1) (citation and punctuation omitted). It follows that the trial court did not err when it granted summary judgment to Underground, which did not, as a matter of law, have knowledge equal to the decedent’s as to the risks posed by this violent encounter. Id.; see also Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165) (1994) (even if hosts were negligent and could be liable to an innocent bystander, they could not be liable to a guest who was an initiator or active participant in a brawl resulting in the guest’s injury); Ratliff, 326 Ga. App. at 313 (2) (a) (affirming grant of summary judgment when plaintiff had previously received threats from attacker, and thus had direct and “at least an equal, if not a superior, knowledge” of the threat posed).¹

2. Appellants also contend that Fair was a third-party beneficiary to IPC’s contract with Underground to whom IPC owed a duty of care. Specifically, appellants contend that material issues of fact remain regarding whether IPC breached its duty to provide adequate security and, therefore, that the trial court erred in granting IPC’s motion for summary judgment. Again, we disagree.

Under Georgia law,

in personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury

(Citation and punctuation omitted.) Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 117 (4) (537 SE2d 345) (2000). See also OCGA § 9-2-20 (b) (authorizing actions by third-party beneficiaries).

Although the third-party beneficiary need not be specifically named in the contract, the contracting parties’ intention to benefit the third party must be shown on the face of the contract. The mere fact that the third party would benefit from performance of the agreement is not alone sufficient. We recognize that whenever a premises owner contracts with a private security company the parties may expect the security services provided to benefit invitees who visit the property. As we have held, however, an injured invitee may not recover against the security company for negligent performance if the contract is silent as to the parties’ intent to confer that benefit.

(Citations and punctuation omitted; emphasis in original.) Brown v. All-Tech Investment Group, 265 Ga. App. 889, 897 (2) (a) (i) (595 SE2d 517) (2004). See also Anderson, 273 Ga. at 117-118 (4); Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994) (“[I]n personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury”) (citations and punctuation omitted).

In this case, the service contract provides that IPC agreed, as an independent contractor, “to provide . . . Interior/Exterior Security” and “on-site security and public safety services” for the Underground Atlanta property according to a specified manpower schedule. The contract does not mention “patrons,” “customers,” “shoppers,” “visitors,” or any other term that describes Underground’s invitees. Thus we conclude that the general descriptor “public safety services,” which designates the type of services to be provided under the contract, does not show a clear intent to confer a direct benefit to patrons of Underground. Accordingly, the trial court did not err in ruling that IPC did not owe Fair any duty as a third-party beneficiary to IPC’s contract with Underground. Anderson, 273 Ga. at 117-118 (4); Brown, 265 Ga. App. at 897 (2) (a) (i); Armor Elevator Co., 213 Ga. App. at 30 (2).

3. Appellants contend, in the alternative, that IPC undertook an extra-contractual duty to protect members of the public and, through its conduct, increased the risk of harm to Fair and, therefore, that the trial court erred in granting IPC’s motion for summary judgment, citing Restatement (Second) of Torts, Section 324A.

As the Supreme Court of Georgia has explained, however,

Section 324A (a) applies only to the extent that the alleged negligence of the defendant exposes the injured person to a greater risk of harm than had existed previously. Accordingly, Section 324A (a) applies when a nonhazardous condition is made hazardous through the negligence of a person who changed its condition or caused it to be changed. Liability does not attach for failing to decrease the risk of harm. Put another way, the mere failure to abate a hazardous condition — without making it worse — does not trigger the application of Section 324A (a).

Herrington v. Gaulden, 294 Ga. 285, 288 (751 SE2d 813) (2013) (citations and punctuation omitted). Regardless whether IPC’s performance may have allowed a hazardous condition to continue and failed to make Underground’s patrons any safer, appellants have not even alleged that a nonhazardous condition existed at Underground that was made into a hazardous condition through any acts or omissions on the part of IPC. Accordingly, appellants’ argument based on subsection (a) of Section 324A of the Restatement lacks merit. Herrington, 294 Ga. at 288; see also BP Exploration & Oil, Inc. v. Jones, 252 Ga. App. 824, 830 (2) (a) (558 SE2d 398) (2001) (physical precedent only). Moreover, appellants do not allege that IPC’s performance was to be substituted completely for that of the party on whose behalf the undertaking is carried out, that is, Underground; nor do they contend that Fair actually relied on IPC’s undertaking, and, therefore, subsections (b) and (c) of Section 324A do not apply. BP Exploration, 252 Ga. App. at 830-832 (2) (b), (c).

For all these reasons, the trial court did not err when it granted summary judgment to both Underground and IPC.

Judgment affirmed.

Doyle, C. J., Dillard, P. J., Andrews, Ray, Mercier and Bethel, JJ., concur. Ellington, P. J., and Reese, J., concur in part and dissent in part.

1 In light of this discussion, we need not reach Underground’s contention that no evidence showed that its failure to provide adequate security was the proximate cause of Fair’s death.