FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
March 13, 2020
In the Court of Appeals of Georgia A19A2438. ST. JUDE’S RECOVERY CENTER, INC. v. VAUGHN.
MCFADDEN, Chief Judge.
St. Jude’s Recovery Center, Inc., a drug treatment facility, appeals the order
denying its motion for summary judgment in this action filed by Laura Vaughn, a
former resident who was raped by an unknown assailant when she was walking to a
bus stop three-quarters of a mile away from the facility. St. Jude’s argues, among
other things, that any breach of duty was not the proximate cause of Vaughn’s
injuries. We agree and therefore we reverse the order denying the motion for
summary judgment.
1. Facts. A trial court properly grants summary judgment “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). “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.” AgSouth Farm Credit, ACA v. West, __ Ga. App. __, __ (835
SE2d 730) (2019) (citations and punctuation omitted).
So viewed, the record shows that St. Jude’s is a 22-bed, residential
rehabilitation facility located in metro Atlanta. Its residents are subject to strict rules,
including that they obtain employment of at least 35 hours per week. The residents
must be back at the facility by 6 p.m. each day, which means they must work shifts
that begin early in the day.
Vaughn became a St. Jude’s resident after pleading guilty to certain crimes and
choosing to complete an inpatient drug treatment program and probation instead of
serving a term of incarceration. In accordance with the program’s rules, Vaughn
obtained a job at a fast food restaurant. While she was in the program, she was not
2 permitted to drive, so she took MARTA to work. She caught the bus at a bus stop
designated by St. Jude’s, which was three-quarters of a mile from the facility.
On the morning of the rape, Vaughn overslept and missed her 5:48 a.m. bus by
two minutes. It was dark outside and the next bus would not arrive for 40 minutes. So
Vaughn walked to a nearby convenience store to buy a pack of cigarettes.
Vaughn exited the convenience store and started walking toward her bus stop.
A man approached her and asked for directions to Five Points. Vaughn answered, but
instead of going in the direction Vaughn had indicated, the man continued to walk in
front of her. Then he turned around, grabbed Vaughn, pointed a gun at her face,
dragged her to the woodline along the side of the road, and raped her.
Vaughn filed this action asserting that St. Jude’s breached a duty of care to
ensure her safety. St. Jude’s filed a motion for summary judgment. The trial court
denied the motion, we granted the application for interlocutory appeal filed by St.
Jude’s, and this appeal followed.
2. Analysis.
“[T]o recover for injuries caused by another’s negligence, a plaintiff must show
four elements: a duty, a breach of that duty, causation and damages.” Goldstein,
Garber & Salama, LLC v. J. B., 300 Ga. 840, 841 (1) (797 SE2d 87) (2017) (citation
3 and punctuation omitted). A defendant is entitled to summary judgment if the record
shows a lack of evidence sufficient to create a jury issue on at least one essential
element of the plaintiff’s case. See, e.g., Barrett Properties v. Roberts Capitol, 316
Ga. App. 507, 510 (1) (729 SE2d 621) (2012) (defendants were entitled to summary
judgment on plaintiff’s common law tort claims, given lack of evidence that
defendants were the proximate cause of any harm to plaintiff).
St. Jude’s is entitled to summary judgment on Vaughn’s claims because the
undisputed evidence shows that the actions of the rapist were the proximate cause of
her injury. “[T]he rule is that an intervening and independent wrongful act of a third
person producing the injury, and without which it would not have occurred, should
be treated as the proximate cause, insulating and excluding the negligence of the
defendant.” Goldstein, 300 Ga. at 841 (1) (citation and punctuation omitted). Vaughn
invokes an exception to the rule. Under that exception, a defendant is not insulated
from liability by the intervening act of a third party when
the defendant had reasonable grounds for apprehending that such wrongful act would be committed. Stated differently, if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal
4 connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.
Id. at 841-842 (1) (citations and punctuation omitted). “Foreseeable consequences are
those which, because they happen so frequently, may be expected to happen again.”
Med. Center Hosp. Auth. v. Cavender, 331 Ga. App. 469, 475 (1) (a) (771 SE2d 153)
(2015) (premises liability) (citation and punctuation omitted; emphasis in original).
In other words, “a wrongdoer is not responsible for a consequence which is merely
possible, according to occasional experience, but only for a consequence which is
probable, according to ordinary and usual experience.” Goldstein, 300 Ga. at 842 (1)
(citation and punctuation omitted; emphasis supplied).
Vaughn argues the rapist’s conduct does not insulate St. Jude’s from liability
because the intervening criminal conduct was foreseeable. She points to the testimony
of a former St. Jude’s resident assistant that “anything could happen” when walking
the path Vaughn took in the dark and that the resident assistant would “never” have
felt safe if she had to walk alone in the early morning darkness from the facility to the
MARTA bus stop. Vaughn points to the resident assistant’s testimony that “[s]ome
of the ladies have come back [from the bus stop] . . . one time they were saying that
some guy was following them. Then you would have construction going on and those
5 guys would be following them back, trying to talk to them or walking with them or
yelling and screaming, harassing them for the most part.” Finally, Vaughn points to
the resident assistant’s testimony that there was no doubt in her mind that St. Jude’s
knew its residents were vulnerable to crime.
Vaughn points to the testimony of the CEO of St. Jude’s that she had heard of
residents being harassed by men when walking from the facility to the bus stop — but
that was after the date Vaughn was raped. She points to the CEO’s testimony, when
asked if she would walk down the dark path where Vaughn was raped, that “I
wouldn’t — if I could take a vehicle, I would.”
Vaughn points to her own testimony that “[a]ll of the girls [at St.
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FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
March 13, 2020
In the Court of Appeals of Georgia A19A2438. ST. JUDE’S RECOVERY CENTER, INC. v. VAUGHN.
MCFADDEN, Chief Judge.
St. Jude’s Recovery Center, Inc., a drug treatment facility, appeals the order
denying its motion for summary judgment in this action filed by Laura Vaughn, a
former resident who was raped by an unknown assailant when she was walking to a
bus stop three-quarters of a mile away from the facility. St. Jude’s argues, among
other things, that any breach of duty was not the proximate cause of Vaughn’s
injuries. We agree and therefore we reverse the order denying the motion for
summary judgment.
1. Facts. A trial court properly grants summary judgment “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). “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.” AgSouth Farm Credit, ACA v. West, __ Ga. App. __, __ (835
SE2d 730) (2019) (citations and punctuation omitted).
So viewed, the record shows that St. Jude’s is a 22-bed, residential
rehabilitation facility located in metro Atlanta. Its residents are subject to strict rules,
including that they obtain employment of at least 35 hours per week. The residents
must be back at the facility by 6 p.m. each day, which means they must work shifts
that begin early in the day.
Vaughn became a St. Jude’s resident after pleading guilty to certain crimes and
choosing to complete an inpatient drug treatment program and probation instead of
serving a term of incarceration. In accordance with the program’s rules, Vaughn
obtained a job at a fast food restaurant. While she was in the program, she was not
2 permitted to drive, so she took MARTA to work. She caught the bus at a bus stop
designated by St. Jude’s, which was three-quarters of a mile from the facility.
On the morning of the rape, Vaughn overslept and missed her 5:48 a.m. bus by
two minutes. It was dark outside and the next bus would not arrive for 40 minutes. So
Vaughn walked to a nearby convenience store to buy a pack of cigarettes.
Vaughn exited the convenience store and started walking toward her bus stop.
A man approached her and asked for directions to Five Points. Vaughn answered, but
instead of going in the direction Vaughn had indicated, the man continued to walk in
front of her. Then he turned around, grabbed Vaughn, pointed a gun at her face,
dragged her to the woodline along the side of the road, and raped her.
Vaughn filed this action asserting that St. Jude’s breached a duty of care to
ensure her safety. St. Jude’s filed a motion for summary judgment. The trial court
denied the motion, we granted the application for interlocutory appeal filed by St.
Jude’s, and this appeal followed.
2. Analysis.
“[T]o recover for injuries caused by another’s negligence, a plaintiff must show
four elements: a duty, a breach of that duty, causation and damages.” Goldstein,
Garber & Salama, LLC v. J. B., 300 Ga. 840, 841 (1) (797 SE2d 87) (2017) (citation
3 and punctuation omitted). A defendant is entitled to summary judgment if the record
shows a lack of evidence sufficient to create a jury issue on at least one essential
element of the plaintiff’s case. See, e.g., Barrett Properties v. Roberts Capitol, 316
Ga. App. 507, 510 (1) (729 SE2d 621) (2012) (defendants were entitled to summary
judgment on plaintiff’s common law tort claims, given lack of evidence that
defendants were the proximate cause of any harm to plaintiff).
St. Jude’s is entitled to summary judgment on Vaughn’s claims because the
undisputed evidence shows that the actions of the rapist were the proximate cause of
her injury. “[T]he rule is that an intervening and independent wrongful act of a third
person producing the injury, and without which it would not have occurred, should
be treated as the proximate cause, insulating and excluding the negligence of the
defendant.” Goldstein, 300 Ga. at 841 (1) (citation and punctuation omitted). Vaughn
invokes an exception to the rule. Under that exception, a defendant is not insulated
from liability by the intervening act of a third party when
the defendant had reasonable grounds for apprehending that such wrongful act would be committed. Stated differently, if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal
4 connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.
Id. at 841-842 (1) (citations and punctuation omitted). “Foreseeable consequences are
those which, because they happen so frequently, may be expected to happen again.”
Med. Center Hosp. Auth. v. Cavender, 331 Ga. App. 469, 475 (1) (a) (771 SE2d 153)
(2015) (premises liability) (citation and punctuation omitted; emphasis in original).
In other words, “a wrongdoer is not responsible for a consequence which is merely
possible, according to occasional experience, but only for a consequence which is
probable, according to ordinary and usual experience.” Goldstein, 300 Ga. at 842 (1)
(citation and punctuation omitted; emphasis supplied).
Vaughn argues the rapist’s conduct does not insulate St. Jude’s from liability
because the intervening criminal conduct was foreseeable. She points to the testimony
of a former St. Jude’s resident assistant that “anything could happen” when walking
the path Vaughn took in the dark and that the resident assistant would “never” have
felt safe if she had to walk alone in the early morning darkness from the facility to the
MARTA bus stop. Vaughn points to the resident assistant’s testimony that “[s]ome
of the ladies have come back [from the bus stop] . . . one time they were saying that
some guy was following them. Then you would have construction going on and those
5 guys would be following them back, trying to talk to them or walking with them or
yelling and screaming, harassing them for the most part.” Finally, Vaughn points to
the resident assistant’s testimony that there was no doubt in her mind that St. Jude’s
knew its residents were vulnerable to crime.
Vaughn points to the testimony of the CEO of St. Jude’s that she had heard of
residents being harassed by men when walking from the facility to the bus stop — but
that was after the date Vaughn was raped. She points to the CEO’s testimony, when
asked if she would walk down the dark path where Vaughn was raped, that “I
wouldn’t — if I could take a vehicle, I would.”
Vaughn points to her own testimony that “[a]ll of the girls [at St. Jude’s] hated
any time [they] had to walk alone, but, more especially, if [they] had to get up early
and go to work and walk alone [because] Atlanta is dangerous” and that they “all”
expressed their concern.
That evidence is not sufficient. Cases involving the liability of landlords,
property owners, and their agents for third-party criminal acts are informative. See
Tyner v. Matta-Troncoso, 305 Ga. 480, 485 n. 7 (3) (826 SE2d 100) (2019). We have
found sufficient in that context evidence that apartment houses under the control of
a defendant are repeatedly burglarized and the defendant is informed that the locks
6 or other security measures are inadequate. See, e.g., Haynes v. Housing Auth. of
Atlanta, 154 Ga. App. 519 (268 SE2d 741) (1980); Smith v. Gen. Apartment Co., 133
Ga. App. 927 (213 SE2d 74) (1975), overruled on other grounds in Country Club
Apartments v. Scott, 246 Ga. 443 (271 SE2d 841) (1980); Warner v. Arnold, 133 Ga.
App. 174 (210 SE2d 350) (1974). We have found sufficient evidence that the operator
of a store which had been robbed numerous times before, hired a company to provide
a stakeout unit. Lay v. Munford, Inc., 235 Ga. 340 (219 SE2d 416) (1975). We have
found sufficient evidence that a realtor used a lock box key security system, knowing
of prior house break-ins through the use of such system. Moore v. Harry Norman
Realtors, 199 Ga. App. 233 (404 SE2d 793) (1991).
But
for any . . . breach [of duty] to be considered the proximate cause of [Vaughn’s] injuries, [the rapist’s] criminal acts must be the probable or natural consequences of that breach, and it must be the case that those criminal acts could reasonably have been anticipated, apprehended, or foreseen by [St. Jude’s]. The evidence [Vaughn points to] simply does not show that [the rapist’s] acts can be so considered.
Goldstein, 300 Ga. at 843 (1) (footnote, citations, and punctuation omitted). In
Goldstein our Supreme Court held evidence that the dental profession was aware that
7 sexual assaults of sedated patients can occur and should never happen did not show
that a dental practice reasonably could have anticipated its nurse anesthetist’s sexual
molestation of a sedated patient. See also Walker v. Sturbridge Partners, 221 Ga.
App. 36, 39 (2) (470 SE2d 738) (1996) (“[e]vidence of cat-calling and other boorish
behavior” did not make risk of rape foreseeable); Doe v. Howell, 212 Ga. App. 305,
305-306 (1) (441 SE2d 767) (1994) (absent evidence that third party had criminal
propensities or that prior, similar acts had occurred, defendant did not have
reasonable grounds for apprehending that criminal act would be committed).
Vaughn argues that St. Jude’s knew of the danger of sending vulnerable women
such as herself into the area where she was raped. But our Supreme Court, in
reversing this court, has clearly held that the fact that a plaintiff was vulnerable does
not make an attack upon her foreseeable. In Goldstein, Garber & Salama, LLC v. J.
B., 335 Ga. App. 416 (779 SE2d 484) (2015), this court considered the plaintiff’s
vulnerability stemming from her sedation for a dental procedure to determine that the
dental practice should have anticipated the type of harm she suffered, a sexual assault
by a nurse. Id. at 419-420 (2) (a). Our Supreme Court reversed, expressly rejecting
this analysis and instead holding that the evidence was plain and indisputable that the
8 dental practice could not have reasonably foreseen the third-party criminal act, even
though the plaintiff was a “vulnerable target.” Goldstein, 300 Ga. at 841-843 (1).
“[W]ithout reasonable foreseeability — a hallmark of proximate cause — there
exists no genuine issue of material fact as to the third element of [Vaughn’s]
negligence claim: causation.” Tyner, 305 Ga. at 488 (3). So the trial court erred by
denying the summary judgment motion filed by St. Jude’s, and we reverse.
Judgment reversed. McMillian, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.