Georgia Premises Law Guide

The Georgia Premises Law Guide provides a summary of Georgia statutory and case law in the area of premises liability. The website version of the guide does not contain any footnotes, but the complete guide with citations of authority is available in Word format. If you would like to be e-mailed a copy of the guide with citations, please e-mail me.

Overview

Introduction
A. Conditions on the Premises
  1. Status of Claimant
  2. The Premises
  3. Slip and Fall
  4. Natural Conditions
  5. Waxed Floors
  6. Static Conditions
  7. Attractive Nuisance
  8. Amusement Parks
  9. Common Carriers
  10. Elevators & Escalators
  11. Distraction Doctrine
  12. Falling Objects
  13. Water Hazards
  14. Recreational Prop. Act
  15. Defenses to Claims
B. Acts of Employees
  1. Scope of Employment
  2. Independent Contractor
  3. Hiring & Retention
  4. False Imprisonment
  5. False Arrest
  6. Malicious Prosecution
  7. Shoplifter’s Act
  8. Anti-Shoplifting Devices
  9. Libel & Slander
  10. Emotional Distress
  11. Punitive Damages
C. Criminal Acts of 3rd Parties
  1. Forseeability
  2. Failure to Act
  3. No Liability Situations
  4. ATMs
D. Statutory Liability
.
  1. Landlord Liability
  2. Innkeeper Liability
  3. Alcohol Liability
  4. Americans with Disabilities
  5. Georgia Disability Act

Introduction

Premises liability involves claims by an individual who is injured on the property of another. The injured party may bring a claim against the owner of the property or the person or entity occupying or controlling the property at the time of the injury. Liability for the claimant’s injury is generally the same whether the injured party brings an action against an owner or an occupier. The main exception to this rule is that a landlord who has fully parted with possession and the right to possession is subject to a special statutory provision which is fully discussed in the section entitled [Landlord Liability]. For the purposes of discussion, the owner or occupier will be referred to as the “owner,” and the person injured will be referred to as the “claimant.”

The owner is not liable for a claimant’s injury simply by virtue of the injury occurring on the owner’s premises. The claimant must prove that the owner was negligent, and that the owner’s negligence caused the claimant’s injury. The purpose of this text is to compare and contrast scenarios in which a jury must decide the owner’s liability for the claimant’s injuries with situations where the owner has no liability as a matter of law. In order to make this analysis, it is important to first have a basic understanding of the litigation process and summary judgment procedures.

After a complaint is filed by the claimant, the parties to the lawsuit engage in discovery which includes the taking of depositions of the parties, witnesses and experts and exchanging documentation with the opposing side. The defendant owner through counsel will usually file a motion for summary judgment at the close of discovery. The thrust of this motion is that even considering all the evidence gathered during the discovery process and viewing this evidence in a light most favorable to the claimant, the claimant cannot as a matter of law support a claim against the owner. By filing the motion, the owner has the chance of obtaining a dismissal of the claimant’s action without incurring the additional cost and expense of trial. For the purposes of ruling on a motion for summary judgment, the court assumes that the claimant’s version of events is correct, and the motion must be denied if there is any genuine issue of material fact as to the owner’s liability. Although the owner has the burden of persuasion on a motion for summary judgment, there are times when he is entitled to judgment as a matter of law.

A. CONDITIONS ON THE PREMISES

1. Status of Claimant

Who is the claimant? This question is the starting point of any analysis of a claim for a defective or hazardous condition on the premises. Georgia law has divided claimants into three separate categories: invitees, licensees and trespassers. An invitee is one who is induced by express or implied invitation to come onto an owner’s property. The owner must exercise ordinary care in keeping the premises and approaches safe for the invitee. The typical invitee is a customer at a store but also includes an individual who is employed by the owner to perform work on the property or members of an organization participating in a meeting on the owner’s property.

A licensee is one who is neither a customer, a servant nor a trespasser, is not in contractual relations with the owner of the premises and is permitted to come onto the owner’s  land for his own interests, convenience or gratification. A licensee is sometimes defined as a “social guest,” a person who visits the property for the purposes of friendship and socialization. A licensee includes an insurance salesman making a sales call, an employer proceeding onto the owner’s property to offer the owner a job, a fireman battling a blaze, and a security guard entering a warehouse in response to a burglar alarm. An invitee can lose his status and become a licensee if he ventures outside the boundaries of his invitation such as when a customer at a restaurant walks into a roped off area in the parking lot, returns to a restaurant after hours of operation, or opens a private cabinet in a restroom. A volunteer who performs work on the property without a request from the owner is a mere licensee even if the work benefits the owner.

An owner owes a licensee a duty to refrain from wantonly and recklessly exposing him to hidden perils. An owner can only be held liable to a licensee if he knows or has reason to know of a dangerous condition and fails to take reasonable steps to correct it or warn the licensee of the condition. This lesser duty exists as long as the licensee’s actual presence on the property is not realized by the owner. Once a licensee’s presence on the property is made known to the owner, the owner must exercise the same care toward the licensee as owed to an invitee, and the distinction between the duty owed to the licensee and the invitee ceases to exist.

A trespasser is one who, intentionally or by mistake, enters upon another’s property without permission. An owner owes a trespasser the duty not to willfully or wantonly injure him. A child’s status as a trespasser, licensee or invitee is not determined by the child’s age or his capacity, and as such, the owner’s duty to a child is not affected by the child’s lack of maturity. The child’s age is relevant in determining if the child can appreciate a danger and may expose an owner to greater liability in having to anticipate a trespassing child’s lack of understanding of a dangerous condition. This idea is the central thrust of the [Attractive Nuisance] doctrine which defines an owners liability for allowing children access to certain hazards.

Sometimes the battle in a premises liability case is won by making a determination of the status of the claimant. Because there is a significant difference between a duty owed to an invitee and a licensee, an owner can sometimes prevail by lowering the status of the claimant. Georgia courts apply the “business relations” test in determining if a claimant is an invitee or licensee. The general test is whether or not the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both or whether his presence on the premises was for his own convenience, or he had business with individuals other than the owner of the premises. If the relationship solely benefits the injured person, he can at most be a licensee.

2. The Premises

By statute, the owner is responsible for his own premises and its “approaches.” The approaches are defined as the property directly contiguous, adjacent to, and touching those entryways to the property of the owner, through which the owner could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended. Under this definition, the owner is only responsible for the area within which the last few steps are taken by the invitee before entering the premises.

The owner is not liable as a matter of law for areas not within the premises or its approaches. A grass median next to a sidewalk some forty feet away from the entryway to the premises is not part of the approach to a hotel, and an owner is not liable for an area of rocks past a sidewalk and 196 feet away from the motel premises. The owner may by affirmative action, such as constructing a sidewalk, ramp, or other direct approach, extend liability to property that would usually not be his responsibility. If the approach is a public way, the owner’s duty is to exercise ordinary care within the confines of his right in the public way, and an owner generally has no duty to maintain traffic control devices on a public street. An owner may divest himself of responsibility for an area of the property by relinquishing control to an [Independent Contractor], but if the owner supervises or coordinates the actions of the contractor or retains any control over the property, then the owner may be held liable for any conditions within the area. A general contractor at a construction site may be held responsible on the same basis as an owner if the contractor assumes total control over the premises.

3. Slip and Fall on Foreign Substance

The most common premises liability claim is a slip and fall case where the claimant slips on a foreign substance on the floor of a business premises. A foreign substance is anything on the ground that is not ordinarily present, such as a puddle of liquid, a grape, a piece of paper or any other food, beverage or item. In 1980, the Georgia Supreme Court decided in Alterman Foods v. Ligon that in order to state a cause of action, a slip and fall claimant must show (1) that the owner had actual or constructive knowledge of the foreign substance and (2) that the claimant was without knowledge of the substance or for some reason attributable to the owner was prevented from discovering it. Focusing on the second prong of this test, owners frequently obtained summary judgment by demonstrating that the claimant could have seen and avoided the hazardous condition but failed to do so. Counsel for the business owner would typically ask the claimant at his deposition if he could have seen the substance if he had looked down prior to his fall. An unwary claimant would usually respond, as one would expect, that he could have seen the grape, water or other foreign substance if he had closely examined the floor before his fall since nothing actually obstructed his view of the floor. Whenever the claimant testified that in hindsight he could have seen the hazardous substance, the business owner was entitled to summary judgment because the claimant could have seen the substance and avoided the hazard if he had paid more attention to where he was walking. In this manner, the slip and fall claimant was kept from presenting his case to a jury, and most cases were adjudicated on a motion for summary judgment.

Realizing that the slip and fall claimant was unfairly forced to prove his own lack of negligence, in 1997 the Georgia Supreme court inRobinson v. Kroger Co. rendered a monumental decision reversing earlier slip and fall precedent and reestablishing the balance of power between the slip and fall claimant and the business owner. In Robinson, the claimant slipped and fell on a foreign substance at a grocery store. After the claimant testified at her deposition that she failed to look at the site where she placed her foot prior to her fall and could have seen the hazardous condition if she had examined the floor, the trial court granted summary judgment to the owner and the Court of Appeals affirmed. In reversing the Court of Appeals, the Supreme Court of Georgia stated that recent appellate decisions had placed in the limelight an invitee’s duty to exercise reasonable care for personal safety and, in so doing, relegated to the shadows the duty owed by an owner to an invitee. While the Robinson court acknowledged that an owner was not an insurer of an invitee’s safety, the court also recognized that an invitee who responds to an invitation and enters the premises does so pursuant to an implied assurance that the premises has been made ready and safe for the invitee’s reception, and the entering invitee is entitled to expect that the owner has exercised and will continue to exercise reasonable care to make the premises safe. In balancing these competing duties, the court held that the established standard is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.

Given this standard, an invitee’s admission that he did not look at the site on which he placed his foot prior to his fall does not establish as a matter of law that the invitee failed to exercise ordinary care. Furthermore, an owner is not entitled to summary judgment even if an invitee testifies that he could have seen the hazard had he visually examined the floor before taking the step which led to his accident. The court cautioned that “routine” issues of premises liability including the negligence of the owner and the claimant, and the claimant’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment should only be granted when the evidence is “plain, palpable, and undisputed.” Because of the importance of the Robinson decision, all other slip and fall cases involving foreign substances are merely footnotes to this opinion, and arguably, any decisions prior to Robinson are of little, if any, precedential value.

Since Robinson, the courts have repeatedly held that summary judgment cannot be based on the claimant’s failure to see the condition which caused his fall. The only exceptions to this general rule are that the claimant cannot recover if he does not know what caused his fall or if he admits that he had actual knowledge of the dangerous condition before the accident. With the claimant’s conduct essentially no longer a basis for summary judgment, owners began to focus on their lack of knowledge of the hazardous condition as a basis for escaping liability. Under this part of the test, the claimant must demonstrate that the owner had actual or constructive knowledge of the foreign substance which caused the fall prior to the accident. Since few owners admitted that they knew of the hazardous condition, the court’s analysis usually focused on the claimant’s ability to prove constructive knowledge. A claimant could show the owner’s constructive knowledge by presenting (1) evidence that employees were in the immediate vicinity and easily could have noticed and removed the hazard, or (2) evidence that the substance had been on the floor for such a time that (a) it would have been discovered had the proprietor exercised reasonable care in inspecting the premises, and (b) upon being discovered, it would have been cleaned up had the proprietor exercised reasonable care in its method of cleaning the premises. In regards to employees in the vicinity of the foreign substance, the claimant had to show that the substance was visible and capable of being discerned by the employee. In regards to liability for failure to inspect properly the premises, the central issue was the claimant’s proof of the actual amount of time the substance had been on the floor.

Although the Robinson court was explicit in the treatment of the issue of the claimant’s exercise of ordinary care for his own safety, the court’s decision was silent in regards to the claimant’s burden of proving the owner’s knowledge of the foreign substance which caused the fall. Left with no guidelines from the Supreme Court, the Court of Appeals held in the decision of Sharfuddin v. Drug Emporium, Inc. that the prior test regarding the owner’s knowledge of the hazard was not altered by the Robinson decision. In Sharfuddin, the claimant slipped and fell in water on the floor of an owner’s store. The claimant admitted that there were no employees of the owner in the vicinity and further admitted that she did not know how long the water had been present on the floor. Despite the fact that owner offered no evidence of its inspection procedures, the court affirmed the grant of summary judgment to the owner on the ground that the claimant had failed to point to specific evidence giving rise to a triable issue on the question of the owner’s knowledge of the water.

The holding in Sharfuddin was refined in Straughter v. J.H. Harvey Company, Inc. In Straughter, the claimant slipped and fell on a green, leafy object in the produce section of owner’s grocery. The claimant admitted that there were no employees in the vicinity of her fall and that she did not know how long the object had been on the floor. The owner offered no evidence as to the reasonableness of his inspection procedure except for the affidavit of the manager who stated that the store had a policy of sweeping the floor every two to three hours. The owner moved for summary judgment since the claimant could not testify as to the amount of time the object was on the floor. The court refused to grant summary judgment to the owner stating that the claimant need not show how long a substance had been on the floor unless the owner had established that reasonable inspection procedures were in place and followed at the time of the incident. The court reasoned that the owner had the evidence of inspection procedures in his power and the failure to produce such evidence created a negative presumption in favor of the claimant.

The cases since Sharfuddin have examined in detail the owner’s burden of proving the existence of reasonable inspection procedures. Reasonable inspection procedures can be established by a manager’s affidavit testifying that the owner had a policy of inspecting its store every thirty minutes and that the area was inspected thirty minutes prior to the claimant’s fall, and such evidence shifts the burden to the claimant to show that the substance was on the floor for a length of time sufficient for knowledge to be imputed to the owner. If the claimant in such a case cannot show the amount of time the substance was present, the owner is entitled to judgment as a matter of law. However, if there is conflicting evidence as to whether the inspection procedures were followed on the day of the accident, or there is no testimony as to the exact procedures followed on the day of the accident, then a jury must decide the reasonableness of the owner’s inspection procedures. A claimant can rely upon the admissions of an identified employee of the owner to create an issue of fact as to the reasonableness of the inspection procedures but cannot use the hearsay statements of an unknown or unidentified employee to overcome a motion for summary judgment. If the substance is on the floor for only a matter of seconds before the fall, such as butter falling from a tray, then the owner is entitled to judgment as a matter of law since its employees could not have had enough time to remove the hazard.

Large sporting and stadium events are not subject to the same requirements to keep the premises clean and free of foreign substances as imposed on restaurants, grocery stores and other businesses. Because patrons at stadium events are constantly throwing food, beverages and containers on the ground, it would be unduly burdensome on the stadium owner to require constant inspections and removal of all debris and trash. Patrons expect to find discarded items on the ground and cannot usually recover for slipping and falling on them.

4. Naturally Occurring Conditions

A business owner is generally responsible for the sidewalk in front of an establishment and the customer parking lot. A claimant will sometimes bring an action against an owner for failing to remove naturally occurring conditions outside the store such as ice, snow, or even leaves. Before Robinson, the general rule was that where ice or water accumulating on a premises is naturally occurring and not attributable to any affirmative action on the owner’s part, the owner has no affirmative duty to discover and remove the condition in the absence of evidence that it had become an obvious hazard. Because there was no duty to inspect the premises for naturally occurring ice or water, an owner was insulated from liability for these conditions unless the owner knew they presented a hazard.

In Dumas v. Tripps of North Carolina, Inc., the Georgia Court of Appeals abandoned the traditional rule in regards to naturally occurring ice on the premises and, citing Robinson v. Kroger Co., held that “the accumulation of naturally occurring ice does not negate an owner’s duty to exercise ordinary care in inspecting the premises.” A slip and fall on naturally occurring conditions such as ice or rain is now treated no differently than a slip and fall on a [Foreign Substance]. However, if a claimant slips and falls in a store on a rainy day, she cannot recover if she does not know what caused her to fall even though she may speculate that rain water was on the floor. A claimant also cannot recover for falling after jumping over a mud puddle since it is common knowledge that water accumulates on the ground after rainy days. Despite the court’s application ofRobinson to falls on ice, the court still considers a slip and fall on wet leaves under the old test concerning naturally occurring conditions, and an owner has no duty to inspect his premises for leaves or to remove them unless he knows they present a hazard.

5. Defectively Waxed or Polished Floor

A claimant will sometimes fall on a slippery, improperly waxed floor at a retail store or restaurant. In a slip and fall case allegedly resulting from the owner’s negligence in maintaining a highly waxed and slippery floor, the claimant must, at a minimum, show that the owner was negligent either in the materials he used in treating the floor or the application of them. This burden on the claimant does not arise until the owner presents some evidence as to the reasonableness of the cleaning and waxing procedures at the store, and if the owner presents no such evidence, then the claimant is entitled to a trial on this issue.   If an owner dos present such evidence, he is entitled to summary judgment if the claimant just generally claims that he must have fallen on an overly slippery floor since no foreign substance was present or if the claimant states that the floor “just felt slippery.” The claimant is entitled to a trial on his allegations of negligence if other witnesses corroborate the claimant’s contention that the floor was slippery, if employees of the owner admit that the floor was slippery, or if the claimant unequivocally felt the excess wax on the floor.   Because the owner has a statutory duty to keep the premises safe, an owner cannot avoid liability by claiming that the defective condition was caused by the negligence of an [Independent Contractor] who cleaned the floor. The holding in Robinson v. Kroger Co. did not alter the analysis utilized in determining liability for a negligently waxed floor.

6. Static Conditions

A static condition is a structure or feature on the premises that does not change, such as a ramp, a hole in the ground, stairs, or a curb. A static condition is not dangerous unless someone fails to observe it and trips over it. Liability for static conditions, like that for [Foreign Substances], is determined by the two prong test espoused in Robinson v. Kroger Co. However, the application of this test is slightly different when a static condition is the cause of the accident. Unlike with a foreign substance, a static condition is present for weeks, months or even years on the premises without any change. Unless someone complains of the condition or is injured during this extended time period, the business owner has no reason to believe that the condition presents a hazard. Accordingly, the business owner will often be entitled to summary judgment because of his lack of knowledge that the condition poses a danger to customers. However, an owner is required to inspect the premises for obviously dangerous static conditions such as potholes, and an owner is generally presumed to have knowledge of any structure on the premises which does not comply with building codes or standards, such as an improperly constructed ramp.

Because a static condition does not change, if a claimant has successfully negotiated the allegedly dangerous condition on a previous occasion, he is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom as long as the condition was noticeable during the prior trip and the claimant takes the same route both times. An exception to this rule is when the static condition is altered or combines with other factors to create the hazard. A claimant who had visited a home construction site on several occasions was not barred from recovery when he slipped and fell on a walkboard that did not have runners since the walkboard had been equipped with runners on his prior visits. Likewise, a claimant who had walked on a ramp without incident in the past could still recover for a fall during rainy weather since the claimant alleged that her injury resulted from the combination of the ramp’s slope and lack of non-skid coating and the presence of water.

7. Attractive Nuisance

Recognizing that children are almost magically drawn to certain man-made hazards such as machinery and railroad turntables, courts have created a legal fiction known as the attractive nuisance doctrine in an effort to force an owner to protect children from their own curiosity. Under this theory, an owner is potentially liable for injuries caused to a [Trespassing Child] if the injuries were caused by a dangerous man-made instrumentality or machinery which naturally attracts young children. The central idea behind this doctrine is that the owner should anticipate that a child would come onto the property because of the interesting nature of the machinery, and the owner should take precautions such as erecting a fence or other barrier to keep children away from the harm.

Georgia courts have been very cautious about applying this doctrine and have limited its use by adopting a five-part test for an owner’s liability for a man-made condition. Under Georgia law, an owner of land is liable for physical harm caused by an artificial condition upon the land if:

(1) the place where the condition exists is one upon which the owner knows or has reason to know that children are likely to trespass, and

(2) the condition is one of which the owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily injury to such children, and

(3) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(4) the utility to the owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(5) the owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

There must be evidence to support all five conditions, or the owner is entitled to summary judgment. Furthermore, the attractive nuisance doctrine is not applicable to a child who is a guest on the owner’s property since the child is not a trespasser.

Under Georgia law, this doctrine does not apply to any natural condition on the property such as a pond or an embankment. It also does not generally apply to dangers presented by fire, falling from heights, or water hazards because children normally understand and appreciate the hazard presented by these elements. However, an issue for trial exists as to whether a conveyor belt in a packing shed is an attractive nuisance to children of migrant farm workers, and whether an unfenced swimming pool three blocks from an elementary school presents an attractive nuisance for nearby children.

8. Amusement Parks

Even though an amusement park operator owes its patrons a duty to exercise ordinary care for their safety, an operator will often be entitled to summary judgment when a patron is injured on a ride since the patron will have assumed the risk of injury. A person who rides or uses an amusement device assumes the hazards naturally and obviously arising from the proper use and operation of the device. A patron on a roller coaster ride cannot recover for injuries which occur when her shoulder strikes the inside of the coaster on a sharp turn, a parent cannot recover when his child is injured on a water slide after flipping over during the course of the ride, and a patron cannot recover for injuries resulting after she jumps off her raft at the end of a water ride and is struck by an oncoming raft. A patron may recover for injuries if the ride itself malfunctions or if the ride operates in a different and more dangerous manner on the occasion in question, such as when an operator allows water slide patrons to form a “train” down the slide.

9. Common Carriers

Common carriers of passengers, such as buses, trains, airplanes, and subway systems, have a statutory duty to exercise extraordinary diligence to protect the lives and persons of its passengers but are not liable for injuries to them after having used such diligence. Extraordinary diligence is defined as that extreme care and caution which very prudent and thoughtful persons exercise in like circumstances. Although the carrier owes a duty of extraordinary care to a passenger, the passenger’s failure to exercise ordinary care for his own safety can be used to reduce or bar a recovery. In addition, the duty of extraordinary care only extends to receiving, transporting, and discharging passengers, and a carrier only owes a duty of ordinary care in furnishing a safe terminal or providing safe means of ingress and egress.

Common carriers have a duty to receive any passenger whom they are able and accustomed to carrying, upon compliance with such reasonable regulations as the carriers may adopt for their own safety and for the benefit of the public. A carrier may refuse to admit or may eject all persons who refuse to comply with the reasonable regulations of the carrier or who exhibit improper conduct. A carrier may also refuse to transport any person who seeks to interfere with the carrier’s business or interests.

A special statutory presumption exists in regards to the liability of a railroad for personal injury or property damage. Under this statute, proof of injury inflicted by the running of locomotives or railcars is prima facie evidence of the lack of reasonable skill and care on the part of the railroad. This presumption disappears when the railroad introduces evidence that its actions and the conduct of its employees were reasonable. The railroad may still utilize the claimant’s comparative negligence to reduce or bar an award and may assert the defense of assumption of risk. “People movers” or an automated transit system do not qualify as railroads and do not fall under this statutory presumption.

10. Elevators, Escalators & Automatic Doors

An owner also owes a duty of extraordinary care to customers using an elevator or escalator and cannot delegate this duty to another entity. Despite this extraordinary duty, an owner is not liable simply because an injury occurs, and even if a device malfunctions, there is no presumption of negligence. Once an owner has knowledge of a malfunction, he must make the appropriate repairs or warn passengers of the problem. If a passenger’s injury results from a [Slip and Fall] rather than mechanical failure or improper use, then the owner only owes the passenger a duty of ordinary care.

Georgia law requires that all elevators, other than hand elevators and power and hand dumbwaiters, and all escalators must be inspected every six months and must comply with American National Standard Safety Codes. Any elevator or escalator involved in an accident must be removed from service at the time of the accident and shall not be repaired, altered, or placed back into service until inspected by a certified inspector. If an owner fails to adhere to this rule and repairs the elevator or places it back into service after an accident, then the claimant is entitled to a rebuttable presumption that the owner was negligent in the maintenance of the device. This presumption does not occur, even if the owner violated the statute by failing to allow an inspection, when the claimant trips and falls while entering the elevator and there is no evidence either before or after the fall that the elevator was malfunctioning.

Because elevators and escalators are mechanical devices that will inevitably break down and sometimes become dangerous and cause injury without negligence on the part of the owner, the owner must have been able to discover the problem prior to the malfunction in order to hold the owner liable for the resulting injuries. When a malfunction is due to the failure of an axle bearing, and there is no way to predict the bearing’s life expectancy or when it will give out, the owner is not liable for the claimant’s injury as a matter of law. On the other hand, if a visual inspection during routine maintenance of the escalator could have revealed a problem, then a triable issue exists as to the owner’s liability for a claimant’s injury resulting from a subsequent malfunction.

The owner does not have an extraordinary duty of care in regards to the functioning of automatic doors on the premises. When an automatic door unexpectedly closes on a customer, a store owner cannot be held liable for the resulting injuries unless he had knowledge of the problem with the door or failed to inspect the doors in a reasonable manner. Likewise, an owner is not responsible for an injury caused by a claimant trying to use a walker to go through a revolving door absent evidence that the door malfunctioned in some manner. If the owner is aware that the automatic doors open in the wrong direction until manually reset, then the owner can be held liable for a customer’s injury caused by the doors opening incorrectly.

11. Distraction Doctrine

The distraction doctrine is applicable in a situation where the claimant explains that he was not looking at the location of the hazard which caused his injury because he was distracted by something in the control of the owner. Before Robinson v. Kroger Co., claimants relied upon the distraction doctrine to avoid summary judgment since the claimant’s failure to see the hazard was a basis of dismissal of the action if the claimant did not have an excuse for failing to avoid the condition. This concept may have been rendered irrelevant by the Supreme Court’s mandate that the claimant’s failure to see the hazard is no longer a basis for summary judgment. [Slip and Fall on Foreign Substance]

Pursuant to the distraction doctrine, when a claimant alleges that he was distracted from looking at a hazardous condition and the owner might have anticipated that the purported distraction, such as the conduct of an employee, the premises construction or configuration, or a merchandise display, would divert the claimant’s attention, then a jury must decide the issues of the owner’s and claimant’s comparative negligence. The rationale behind this theory is that a store patron is not bound to use the same degree of care in discovering or apprehending danger in moments of stress or excitement or when her attention has been diverted. A greeting initiated by a store employee, setting up a special display in a window, or a confrontation with anticipated vehicular traffic constitutes the kind of distraction which relieves the claimant of exercising the same degree of care for his own safety. However, a claimant cannot benefit from a self-induced distraction such as by looking at displayed merchandise on a shelf, speaking with companions, or following the path of a released shopping cart.

12. Falling Objects

Customers will sometimes be struck by merchandise or boxes which fall from a shelf at a store. If the merchandise is in an area which is easily accessible to customers or other individuals, there is no presumption of negligence on the part of the owner. In such a scenario, the claimant must show that the owner was aware or should have been aware of the defective manner in which the merchandise was placed on the shelf. The claimant can sustain this burden by showing that there had been prior incidents of merchandise falling from the shelves, that employees were in the vicinity and should have seen the defect, or that the defect had remained for a time sufficient to locate the defect with a reasonable inspection. If the merchandise originated from a section of the store which was within the exclusive control of the owner and there is no evidence that a customer or other individual moved the item, then the claimant is entitled to rely upon the doctrine of res ipsa loquitor, which states that an inference of negligence arises in favor of the claimant when an injury results from an unusual event with respect to property under the owner’s control. An owner is not liable when the claimant’s injury is the result of an improper and unexpected use of a store display.

13. Swimming Pools & Water Hazards

As discussed in the section under [Attractive Nuisance], swimming pools will sometimes constitute an attractive nuisance for which an owner will be liable if he does not take adequate precautions to limit a child’s access to the pool. If an owner erects a suitable fence around the pool, he will usually be insulated from liability for an injury to a [Trespassing Child]. When the fence around the pool has a section missing where a child could have crawled under it and the latch to the primary fence gate is not working, then a jury issue exists as to the liability of an owner for a child’s drowning. If the child is on the property as a guest of the owner, the child’s parents cannot recover when he drowns in the owner’s pool, even if there is no gate on the pool, since the existence of the pool is an open and obvious condition and the child is not a trespasser so as to trigger the attractive nuisance doctrine. Similarly, an owner is not responsible for a child’s drowning when the child’s mother was supposed to be supervising the child, and the pool itself was not defective.

An owner can be held liable for a guest’s injury in a pool if the owner failed to provide proper equipment or supervision. A failure to repair a broken light creates a jury issue as to an owner’s responsibility for the drowning of a teenager during a party at night. A public facility is potentially liable for a claimant’s injury when it fails to provide a lifeline as a demarcation between the deep and shallow ends and a qualified lifeguard on duty as required by county regulations, even if the claimant was aware of the lack of these safety precautions. A public facility can also be held liable if it provides lifeguards, and there is evidence that they were negligently supervising the swimmers.

Another scenario involving potential liability for an owner concerns a claimant who dives into a pool or lake and is injured when his head strikes the bottom. When a person dives headfirst into a lake without checking the water’s depth and is paralyzed, the claimant’s own negligence is the proximate cause of his injuries as a matter of law. Likewise, a claimant who dives into a pool with black water and no marker from which he could make a judgment as to the depth assumes the risk of injury, and his own negligence cuts off any liability for the owner. A claimant also cannot recover for his injuries if he is familiar with the depth of the pool and the location of the shallow end, regardless of the lack of warning signs or depth markings. On the other hand, if a pool has a diving board, then the owner has a duty to warn guests as to any hidden perils presented by diving from the board including that the water under the board is only four foot deep.

14. Recreational Property Act

In order to encourage owners of land to make land and water areas available to the public, Georgia has passed special legislation known as the Recreational Property Act (“RPA”) which limits the owner’s liability toward persons entering the premises for recreational purposes. Recreational purposes is defined as including, but not limited to, hunting, fishing, swimming, boating, camping, picknicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic or scientific sites.  Under this statute, an owner, who does not charge any person to use recreational property, owes no duty of care to keep the premises safe for entry or use by others or to give warning of a dangerous condition, use, structure, or activity on the premises. By allowing the public to use the premises, the owner does not extend any assurance that the premises is safe for any purpose, does not confer upon any person the legal status of an invitee or licensee to whom a duty of care is owed and does not assume responsibility for or incur any liability for any injury to person or property caused by an act or omission of such persons. The RPA expressly does not limit the owner’s liability for willful or malicious failure to guard or warn against a known dangerous condition, use, structure or activity, and an owner is still potentially liable for such conduct.

The RPA does not apply to an area whose primary purpose is to attract people to the owner’s nearby business. In determining whether property is covered under the RPA, the court utilizes a balancing test weighing all social and economic aspects of the activity to determine if the primary purpose is to further the business interests of the owner. A sidewalk next to a state-owned beach is considered recreational property since it provides access to the beach, and a claimant cannot recover when she trips over a broken section of pavement on the sidewalk. Likewise, a city-owned walkway that runs along a river from downtown Rome through a park and to a museum is protected by the RPA because the walkway’s primary purpose is to benefit the public. The RPA also extends to spectators at a community softball game, a woman using a recreational swing on church property, an elementary school playground, and an artificial lake near an apartment complex.

Despite the fact that fees were assessed to teams to defray the costs of running a league, a community association operating a baseball field was still covered by the RPA since the association did not charge any fee for the use of the fields. A parking fee to enter a park does not count as a “charge” under the RPA to preclude its application. A swimming pool at a motel is not protected under the RPA even if the owner makes the pool available to the public at no charge. [Swimming Pools & Water Hazards]

15. Equal Knowledge

The true grounds of the owner’s liability is his superior knowledge of the hazard or defect which caused the injury. If the claimant knows of the hazardous condition, the owner has no duty to warn the claimant and is not liable for an injury because the claimant, who has as much knowledge as the owner does, assumes the risks and dangers incident to the known condition by voluntarily acting in view of his knowledge. This doctrine is often referred to as the “equal knowledge” rule since the owner and claimant have equal knowledge of the hazard.

The “plain view” doctrine is closely related and states that a claimant is deemed to have knowledge of a hazard which is in plain view at a location where it is customarily found and is expected to be located, even if the claimant professes not to have seen it prior to the fall. This rule may establish the claimant’s comparative negligence at trial but cannot be utilized to obtain summary judgment. The plain view doctrine is not applicable to a situation where a claimant falls on an item in an area he does not expect to find it.

B. ACTS OF EMPLOYEES

A claimant will sometimes be injured directly as the result of the actions of an owner’s employee. The employee may physically assault the claimant or may have the claimant falsely arrested for shoplifting or other misconduct. The owner’s first defense will usually be that the employee acted outside the scope of his employment, and as such, the owner cannot be held responsible for the employee’s actions.

1. Scope of Employment

An employer is liable for the actions of his employee within the scope of his employment whether the employee acts negligently or intentionally. This doctrine is often referred to as respondeat superior  or vicarious or imputed liability. The employee acts within the scope of his employment if he is engaged in the employer’s business at the time of the injury, but not if he is engaged in a private and personal matter of his own. The test is not whether the act of the employee was done during the existence of the employment, but whether the employee was at that time serving his employer. Georgia courts have endorsed a liberal interpretation of the scope of employment and have held that an employee’s actions fall within his employment even though they are unlawful, unauthorized, or forbidden, as long as the conduct is within the general duties of employment for which the employee was hired. However, an employee generally acts for himself and not his employer in driving to and from work.

When an employee is motivated solely because of personal animosity toward a claimant, the employer cannot be held liable for the employee’s conduct. However, if an assault occurs between an employee and a customer as a result of an argument arising from the employee’s performance of his duties, then the employer can be held liable even if the employee’s actions are intentional and display a personal dislike for the customer. Under this theory, an employer can be held liable for an assault which results from an employee’s attempt to resolve a customer complaint about the business if the employee regularly deals with customers in his position. If the employee has limited job responsibilities and is not authorized to interact with customers, then the employer cannot be held liable for an assault that occurs when the employee attempts to detain a customer.

2. Independent Contractor

An owner can escape liability for a claimant’s injury if the owner can show that the person who injured the claimant was not an employee but an independent contractor. An employer is not responsible for the actions of an independent contractor when the contractor exercises an independent business and is not subject to the immediate direction and control of the employer. It is often difficult to determine if an individual is an employee or an independent contractor, and the person’s status will be decided by the degree of control retained or exercised by the employer. When the employer can demand a certain result, but does not control the time, manner or method of the contractor’s work, then the person is an independent contractor and not an employee. A person is presumed to be an independent contractor when the contract for employment clearly denominates him in such a manner. If the employer retains the right to control the manner of performance, then the relationship is one of employee/employer regardless of whether the employer ever actually exerts such control.

Despite the general rule that an employer is not liable for the actions of an independent contractor, an employer is statutorily liable for the contractor’s actions in the following circumstances: (1) when the work is wrongful in itself or, if done in the ordinary manner, would result in a nuisance; (2) if, according to the employer’s previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed; (3) if the wrongful act is the violation of a duty imposed by express contract upon the employer; (4) if the wrongful act is the violation of a duty imposed by statute; (5) if the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference; or (6) if the employer ratifies the unauthorized wrong of the independent contractor. Because of the statutory duty to keep the premises safe, the owner cannot delegate to an independent contractor the responsibilities to inspect and maintain the premises and thereby insulate himself from liability. Likewise, an owner is liable for the actions of a security service hired to patrol the premises even if the service operates as an independent contractor.

3. Negligent Hiring & Retention

In addition to an owner’s vicarious liability for the acts of an employee, an owner can also be held liable under a theory that the owner negligently hired or retained the person who injured the claimant. Under this theory, a claimant must show that an employer knew or should have known that the employee was not suited for the particular employment, or that the employer’s procedure for checking the background of potential employees is faulty or unreasonable. If the employee had violent or criminal propensities of which the employer should have been aware, the employer can potentially be held liable for any assaults by the employee. An employer will have a greater duty to investigate the background of its employees depending on the kind of work the employee performs. An owner cannot generally be held liable for negligent hiring or retention of an independent contractor.

4. False Imprisonment

One of the main causes of lawsuits against owners is the detention of a claimant on suspicion of shoplifting or other misconduct. A claimant may have a cause of action for false imprisonment, [False Arrest], or [Malicious Prosecution] as a result of his detention or related actions by the owner’s employees. A claimant may bring a suit for false imprisonment if he is unlawfully detained, for any length of time, and thereby deprived of his personal liberty. The detention of a customer is considered lawful if the owner has probable cause to believe that the customer has committed a crime. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind that the person charged was guilty of the crime for which he was arrested.

A detention need not consist of physical restraint, but may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if the claimant does not submit. If the claimant agrees of his own free choice to surrender his freedom of motion, as by remaining in a room or accompanying the owner or his employees voluntarily, to clear himself of suspicion or accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment. When a claimant consents to a search of his person, there has been no imprisonment as a matter of law, and the claimant cannot maintain an action against the owner. In addition, there is no imprisonment when an employee merely asks a customer a question, and the customer’s response does not invoke further action on the part of the employee.

5. False Arrest

A claimant can bring an action for false arrest if the owner acts with malice and without probable cause in arresting him. An arrest can be made with a warrant or without a warrant. An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be. Malice consists of personal spite or general disregard of the right consideration of mankind, directed by chance against the individual injured. Malice is presumed if the owner has a total lack of probable cause to make an arrest.

If an owner has probable cause to suspect a customer of a crime, then the owner cannot be held liable for an arrest.  Even if his accusations are erroneous, the owner cannot be held liable for the detention as long as he has a reasonable belief that a customer committed a crime. A magistrate’s determination of probable cause is a rebuttable presumption that the owner had a valid reason for detaining a customer. An owner has probable cause to detain a customer who appears to be making unauthorized purchases with the credit card of another person. An owner can also hold a customer for criminal trespass if the customer refuses to leave the premises after being repeatedly told to leave. In conjunction with the requirement of probable cause, an owner may be liable for false arrest if he fails to investigate sufficiently before making an arrest depending on the reliability of the source for the arrest, the availability of further information, the difficulty of obtaining further information, the reputation of the customer, the customer’s explanation for the incident, and the apparent necessity for prompt action. If an arrest is made because of the independent actions of a police officer rather than the conduct of the owner, then the owner cannot be held liable for the arrest. However, if the officer relies on the false statements of the owner’s employee, then the owner may be held responsible for the claimant’s injuries.

6. Malicious Prosecution

A claimant has an action for malicious prosecution if the owner, through a law enforcement agency, maliciously and without probable cause prosecutes him for a crime. As compared with the torts of false arrest and imprisonment, the tort of malicious prosecution requires that criminal proceedings actually be initiated against the claimant. A judge’s determination of probable cause at a preliminary hearing on the criminal charge is prima facie evidence of probable cause and shifts the burden to the claimant to produce evidence that probable cause did not exist for his arrest and the charge against him was motivated by malice. If the owner merely relates facts to an official who makes an independent decision to arrest or prosecute the claimant, then the owner cannot be held liable for the claimant’s prosecution. However, if an owner directly or indirectly urges a law enforcement official to begin criminal proceedings or provides false or misleading information, then there exists potential liability for the claimant’s arrest. The owner can also be held liable if he fails to investigate sufficiently to determine the truth and the failure to investigate results in an improper prosecution.  It is essential to the maintenance of an action for malicious prosecution that the claimant prove that the prosecution has been terminated and that the termination ended in his favor. If the termination of the prosecution is the result of a compromise agreement with the prosecutor, then the claimant cannot prevail on a suit for malicious prosecution.

7. Shoplifter’s Act

By passing the Georgia Shoplifter’s Act, the General Assembly has provided business owners protection from liability for detention or arrest of person’s suspected of shoplifting. Whenever the owner of a mercantile establishment or his employee detains, arrests or causes to be detained or arrested any person reasonably thought to be engaged in shoplifting, no recovery shall be had by the person where it is established that the person had so conducted himself or behaved in such a manner as to cause a man of reasonable prudence to believe that the person was committing the crime of shoplifting as long as the manner of the detention or arrest and the length of time during which such person was detained under all the circumstances was reasonable. The criminal statute for shoplifting defines the offense as (1) concealing or taking possession of the goods or merchandise of any store; (2) altering the price tag or other price marking on goods or merchandise of any store; (3) transferring the goods or merchandise of any store from one container to another; (4) interchanging the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or (5) wrongfully causing the amount paid to be less than the merchant’s stated price for the merchandise. An owner does not have to determine that a customer subjectively intended to commit shoplifting before seeking an arrest and prosecution under the shoplifting statute as long as the customer exhibited conduct from which it could be reasonably inferred that he intended to shoplift. An owner cannot utilize the protection of the shoplifter’s act when the customer is stopped on suspicion of a crime other than shoplifting.

8. Anti-Shoplifting Devices

An anti-shoplifting device is a mechanism that is designed and operated for the purpose of detecting the removal of specially marked or tagged merchandise from a store. By statute, Georgia law provides that the activation of this device as a result of a person exiting the store shall constitute reasonable cause for his detention. This statute only applies if the store owner has posted a notice in a clear and visible manner advising patrons that an anti-shoplifting or inventory control device is being used at the store. The owner is insulated from liability for detaining the customer even if an employee’s negligence caused the device to activate. However, the detention must be made in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the device.

9. Libel & Slander

When an employee of an owner makes a false statement about a customer, the customer may attempt to bring an action for defamation, either libel or slander, against the owner to redress the injury. To sustain a cause of action for defamation, the statement must be factual in nature and cannot be an opinion or a subjective belief. Libel is a false, malicious and defamatory statement, expressed in print, writing, pictures or signs, tending to injure the reputation of the claimant and exposing him to public hatred, contempt or ridicule. Slander consists of oral defamation in (1) imputing to another a crime punishable by law; (2) charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) making charges against another in reference to his trade, office, or profession, calculated to injure him therein; or (4) uttering any disparaging words productive of special damage which flows naturally therefrom. Damage is assumed in the first three instances of slander but must be specifically proven in the last case. Libel or slander must be published to an individual other than the claimant in order to support a cause of action. The truth of the statement is always a defense to a claim of libel or slander.

It is extremely difficult for a claimant to prevail on a slander claim against an owner since an owner is not liable for false, malicious or defamatory statements by one of its employees, even where in uttering such words the speaker was acting for the benefit of the owner and within the scope of the duties of his employment, unless it affirmatively appears that the employee was expressly authorized or directed by the owner to speak the words in question. Even if the claimant believed the employee was authorized to make the statements, the owner is still entitled to summary judgment if the employee actually was not authorized to make the statements. The defense of lack of authorization applies only to slander and not to actions for libel.

Certain communications are deemed privileged and cannot be the basis of a claim for libel or slander. The following communications are deemed privileged: (1) statements made in good faith in the performance of a public duty; (2) statements made in good faith in the performance of a legal or moral private duty; (3) statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned; (4) statements made in good faith as part of an act in furtherance of the right of free speech; (5) fair and honest reports of the proceedings of legislative or judicial bodies; (6) fair and honest reports of court proceedings; (7) comments of counsel, fairly made, on the circumstances of a case in which he is involved and on the conduct of the parties in connection therewith; (7) truthful reports of information received from any arresting officer or police authorities; and (8) comments upon the acts of public men or public women in their public capacity and with reference thereto. The speaker loses the right to claim the privilege if the privilege is used merely to vent private malice.

10. Negligent and Intentional Infliction of Emotional Distress

A claimant will often allege mental or emotional injury resulting from the actions of the owner or his employees. Regardless of the degree of mental anguish, a claimant cannot recover for negligent infliction of emotional distress unless he suffers a physical injury resulting from an actual impact. When a gunman breaks into a tenant’s apartment and robs her without touching her, there can be no recovery against the apartment complex for failing to maintain adequate security since the robber did not actually come into contact with the tenant.

A claimant can bring an action for intentional infliction of emotional distress if the actions of the owner’s employee were intentional or reckless as opposed to merely negligent. In order to support a claim for intentional infliction of emotional distress, the claimant doe not have to show an impact but must prove that (1) the conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there is a causal relationship between the wrongful conduct and the emotional distress; and (4) the emotional distress is severe. The conduct must be so extreme in degree as to go beyond all reasonable bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. As a matter of law, use of curse words is not sufficient by itself to support a claim for emotional distress. On the other hand, a jury issue exists as to a customer’s claim for emotional distress when a pharmacist, who believed that the customer was fraudulently attempting to obtain prescription drugs, alerted the Drug Enforcement Agency of the customer’s purported fraud.

11. Punitive Damages

A claimant is entitled to punitive damages in cases where it is proven by clear and convincing evidence that the owner’s actions showed willful misconduct, malice, fraud, wantonness, oppression or that entire want of care which would raise the presumption of conscious indifference to the consequences. An owner can be held liable for punitive damages arising from his own acts or from those of his employees in the scope of their employment. The issue of punitive damages will generally be presented to a jury in cases of intentional torts such as [Malicious Prosecution], [False Imprisonment] and [False Arrest]. A punitive damages award is limited to $250,000 except in product liability actions or cases where the employee or owner acted with the specific intent to cause harm or acted while under the influence of alcohol, drugs, or any intentionally consumed glue, aerosol, or other toxic vapor to the degree that his judgment was substantially impaired.

C. CRIMINAL ACTS OF THIRD PARTIES

A majority of the assaults and robberies which occur at stores, restaurants and apartment complexes are not committed by [Employees of the Owner] but rather by unknown third parties. The injured victim will generally not be able to recover from the aggressor because he either is judgment proof or cannot be located. The claimant has no alternative but to look to the owner for compensation. While the owner does not know the identity of the assailant and has no control over him, the owner may still be held liable if the owner should have protected the claimant against such harm.

1. Foreseeability of Criminal Act

The general rule is that an owner does not insure an invitee’s safety against third-party criminal attacks, and as such, any liability from such attacks must be predicated on the forseeability of the criminal act. If the owner has reason to anticipate a criminal act, then he has a duty to exercise ordinary care to guard against this risk of harm. The court must examine the history of prior criminal activity on and around the premises to determine the foreseeability of the act in question. The incident causing the injury must be substantially similar in type to the previous criminal activities so that a reasonable person would take ordinary precautions to protect his or her customers or tenants against the risk posed by this sort of activity. In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the forseeability 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 present crime, it does not have to be identical, and what is required is that the prior incident be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated incident. If there are no prior similar incidents, then the owner is entitled to judgment as a matter of law.

In the past, Georgia followed the conservative rule espoused in Savannah College of Art & Design v. Roe that crimes against property could not be used to establish the foreseeability of a crime against the person. In Roe, the claimants were students living in a dormitory and were sexually assaulted by an intruder. The college where the dorm was located was in an urban area, and prior to the attack, the owner had been notified of two instances of “peeping toms” at the dormitory, of a student surprising a burglar and the occurrence of several petty thefts. The trial court denied the owner’s motion for summary judgment and the Court of Appeals reversed. In reversing the trial court, the court held that the prior crimes against property on the premises were not substantially similar to the sexual assault complained of by the claimants to make the subsequent assault foreseeable.

This strict rule was slowly eroded as decisions began to focus on the totality of the circumstances surrounding the criminal history of the premises rather than dividing the previous incidents according to the subject of the crime. Finally in Sturbridge Partners, Ltd. v. Walker, the Georgia Supreme Court, much like in Robinson v. Kroger Co., rendered a monumental decision and specifically overruled the holding in Savannah College of Art & Design v. Roe. In Sturbridge, the claimant was brutally raped and sodomized by an unknown assailant who forced his way into her apartment at night. Although two prior  burglaries had occurred at the complex, both incidents involved theft of property from unoccupied apartments during the day. Citing Savannah College of Art & Design, the owner asserted that the prior crimes against property were insufficient to place the complex on notice as to the risk of a violent attack against a person. The court disagreed with the owner and overruled the prior precedent stating that the “issue is not the forseeability of the rape itself, but whether Sturbridge had actual knowledge of the prior burglaries and, because of that knowledge, should have reasonably anticipated the risk of personal harm to a tenant which might occur in the burglary of an occupied apartment.” Pursuant to Sturbridge, the test for the forseeability of a criminal attack is determined by examining every prior criminal incident, including both crimes against property and persons, which occurred on the premises and deciding from this evidence if a reasonable person would take precautions to avoid the harm complained of by the claimant.

The question of the owner’s liability for a criminal attack is generally for the jury’s determination rather than summary adjudication by the court. Several purse snatchings and minor robberies at an apartment complex in a high crime area presents a jury issue as to whether the complex should have taken steps to guard against a rape of a tenant. When a tenant reports a prior robbery at gunpoint on the premises, a subsequent assault and rape of the same tenant is foreseeable. Even when the claimant has equal knowledge of a defect, such as a flimsy window and improper lock, in her apartment and such defect allows an assailant to gain access to the claimant, the owner may still be held liable for failing to provide additional security or correcting the defect. On the other hand, when there have been two prior assaults on bus drivers by knife-welding passengers, the shooting of a passenger by another passenger is not a foreseeable event in the absence of evidence that the particular route in question has a history of violent conduct by passengers on a daily or weekly basis. Likewise, if a claimant is assaulted in her apartment but does not present evidence as to the manner in which the assailant gained access to the apartment, the owner is entitled to summary judgment since it would be pure speculation as to whether the owner’s failure to provide security was the proximate cause of the claimant’s assault.

2. Failure to Act

An owner can also be held liable for failing to act in response to dangerous third parties whose presence is known by the owner. A noticeably intoxicated patron who injures another at an establishment can result in liability for the owner if the owner should have known the person presented a risk and failed to remove him from the premises. When an owner allows an employee, who was discharged for striking a fellow employee, to return to the premises to receive his last paycheck and the employee assaults the same person a second time, the owner is potentially responsible for the resulting injuries. An owner can also be held liable for an assault by one tenant on another tenant if the owner has knowledge of the violent propensities of the aggressor tenant and fails to evict the tenant or take other remedial action. A tenant’s general meanness and incidents of yelling at his wife does not place an owner on notice of the violent nature of the tenant. An owner who undertakes to provide security for his guests is liable for the failure of the security officers to perform their duties in a reasonable manner.

3. No Liability Situations

A customer cannot recover for an attack by a third-party if the customer precipitates the attack by placing himself into a precarious situation such as by leaving his car to confront a patron outside a nightclub, engaging in a fight during a pickup basketball game, or challenging an adversary with whom the customer had a dispute. An employee cannot recover against her employer and a security agency for injuries inflicted by her boyfriend as she left work since the attack was not from a random stranger but rather grew out of a specific private relationship which had no connection with her employment. A drive-by shooting is not a foreseeable event so as to impose a duty on an owner to protect its customers from such harm. An owner cannot be held liable for a patron throwing a broom off a balcony and injuring another guest absent a showing that a similar event had occurred in the past. A claimant cannot recover after being shot while sitting on a bench outside his apartment complex late at night given his testimony that he was aware that the neighborhood was dangerous and that he did not usually venture out after dark.

4. Dangers Presented by ATMs

Because the dangers of ATMs are well known and undeniable, criminal activity near ATMs is foreseeable and readily apparent to the owner. However, the danger of criminal activity is equally apparent to the public and unless the owner has specific knowledge leading to an awareness that a particular ATM is even more dangerous than it appears to the public, a claimant cannot recover against the owner for criminal acts occurring at the ATM. In the absence of prior robberies or attacks at the ATM in question, the owner generally has no liability for an assault near the ATM. When a bank places a uniformed officer near an ATM but the officer’s only duty is to keep people from parking at the bank, the bank may be held liable for a robbery at the ATM since it gave customers a false sense of security in providing the uniformed officer.

D. MISCELLANEOUS STATUTORY LIABILITY

1. Landlord Liability

A landlord, who has fully parted with possession of property and the right of possession, is not responsible to third persons for damages resulting from the negligence or illegal use of the property by the tenant. The out-of-possession landlord is not subject to the owner’s statutory obligation to exercise reasonable care for the safety of invitees unless the landlord retains control over common areas of an apartment complex to which tenants and others are allowed access. Regardless of possession, the landlord is responsible to third persons for damages arising from defective construction or for damages arising from the failure to keep the premises in repair. The liability of a landlord for defective construction exists in cases where the structure is built by him in person or under his supervision or direction. If the construction occurred before the landlord obtained ownership of the property, the landlord may be held liable if the landlord knew or by the exercise of reasonable diligence should have known of its improper construction before the injury occurred.

While the landlord has a duty to keep the premises in repair, the landlord may shift his duty to repair to a commercial tenant in the lease and avoid liability for injuries on the premises resulting from a failure to repair. The landlord may not assign his duty to repair in a residential lease. He also may not avoid liability for failure to repair if he had knowledge of the defect prior to the injury. If the landlord fails to repair a lock on a tenant’s door after notice of the problem, the landlord can be held liable for a subsequent burglary of the apartment. The landlord may rely on all the defenses available to the owner, including the comparative negligence of the tenant. However, where the hazard is located in an area that is the tenant’s only access or only safe and reasonable access to his home, the tenant’s equal knowledge of the danger does not excuse the landlord from liability for damages caused by a failure to keep the premises in repair. The landlord is also responsible for maintaining proper lighting in common areas and complying with any building codes or other ordinances governing safety.

2. Innkeeper Liability for Entrusted Articles

Georgia law requires innkeepers to exercise extraordinary diligence to protect property entrusted to them by their guests. If a guest has complied with all reasonable rules of the inn, then the innkeeper is liable as an insurer for entrusted property which is stolen. The innkeeper may post a notice requiring guests to place valuables in a safe or other place of deposit and failure to abide by such requirement will relieve the innkeeper from any liability for such articles. In the event that an article is placed in the safe, the innkeeper shall give the guest a receipt for it and the innkeeper’s liability for loss of the entrusted article shall be $750.00 unless the guest possesses the receipt for the article claimed to have been lost. No innkeeper shall be responsible in an amount in excess of $1,000.00 for the loss or theft of any valuables, including cash and jewelry, which are contained in a package, box, bag or other container left with the innkeeper provided that the liability may be increased by written contract at no additional cost to the guest. The innkeeper must post a notice containing these terms in a conspicuous place in all rooms occupied by guests in order to take advantage of the limited liability. An innkeeper’s liability is limited to $1,000.00 for entrusted articles other than valuables unless the guest notifies the innkeeper that the value exceeds this amount. The innkeeper may adopt reasonable regulations for the innkeeper’s protection and the publication of such rules to the innkeeper’s guests shall bind them to these terms.

3. Alcohol Liability

An owner who wilfully, knowingly and unlawfully sells, furnishes or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such minor or person when the sale, furnishing or serving is the proximate cause of such injury or damage. If the owner in the exercise of ordinary care should have known that the recipient of alcohol was noticeably intoxicated and would be driving soon, then the owner will be deemed to have knowledge of that fact and will be exposed to liability for providing alcohol to a noticeably intoxicated person. A claimant may prove that the purchaser of alcohol was noticeably intoxicated by expert testimony based on the blood alcohol content of the individual even if witnesses testify that the purchaser did not appear intoxicated.

An owner who wilfully, knowingly and unlawfully sells, furnishes or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle is also potentially liable for injury or damage caused by or resulting from the intoxication of such minor. An owner is not liable for selling alcohol to underage friends of a driver unless the owner should have known that the alcohol was to be consumed by the driver and that the driver was underage. When the purchaser provides a driver’s license showing that he is 21 years of age or older even though he is actually a minor, there is a rebuttable presumption that the owner did not knowingly sell the alcoholic beverages to a minor.

Regardless of a violation of this statute, the actual consumer of the alcoholic beverage may not recover against the owner for injury or damages suffered by himself. The rule against a consumer recovering against the owner does not apply as to a passenger’s action for injuries in a one-car accident even though both the passenger and driver had been drinking. If the injury is the result of falling out of the car rather than caused by an accident involving the operation of the vehicle, then the claimant cannot recover against the provider of the alcoholic beverages. A homeowner, who does not have a store licensed for the sale of alcoholic beverages, is not liable to any person who consumes alcoholic beverages on the premises unless the owner actually gives his consent to the consumption.

4. Americans with Disabilities Act

In 1990, Congress passed the Americans with Disabilities Act (“ADA”) in part to allow disabled individuals equal access to public accommodations. An inn, hotel, motel or other place of lodging falls within the ADA, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the owner of such establishment as his residence. The ADA also applies to a restaurant, bar, theater, concert hall, stadium, auditorium, convention center, lecture hall, bakery, grocery store, clothing store, hardware store, shopping center, laundromat, dry-cleaner, bank, barber shop, beauty salon, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, doctor’s office, hospital, terminal, depot, museum, library, gallery, park, zoo, amusement park, nursery, school, day care center, senior citizen center, homeless shelter, food bank, adoption agency, gymnasium, health spa, bowling alley, golf course, or any similar facility. The ADA prohibits discrimination against any individual on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation. Owners are required under the ADA to make reasonable modifications necessary to allow disabled individuals access to public accommodations, unless the owner can demonstrate that such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations or such modifications are not readily achievable. In determining if a modification is readily achievable, the owner may take into account the cost of the modification, the owner’s financial resources, and the type of business engaged in by the owner.

Georgia state courts have not yet had the opportunity to reach a decision on the ADA’s application to state law premises claims. Presumably, a claimant can utilize the ADA to provide the basis of a duty on the part of the owner, and a breach of this duty would give the claimant a cause of action against the owner for resulting injuries. In addition, if the claimant was disabled, the violation of the ADA would prove the owner’s negligence as a matter of law.

5. Georgia Access to and Use of Public Facilities by Persons with Disabilities Act

In 1995, Georgia passed the Access to and Use of Public Facilities By Persons With Disabilities Act (“ADAAG”) which requires all government buildings, public buildings and facilities receiving permits for construction of renovation after July 1, 1995 to comply with all American National Standards Institute guidelines for making buildings and facilities accessible to and usable by people with disabilities. Public buildings means all buildings, structures, streets, sidewalks, walkways, and access thereto, which are used by the public or in which persons with disabilities or elderly persons may be employed. Facilities include walkways, sidewalks, curbings, parking lots, parks, stadiums, coliseums, and any other manmade or developed area used by the public. The statute requires owners to provide for disabled individuals a certain number of disabled parking spaces, accessible entrances to a building, accessible toilet rooms, bathrooms, bathing facilities, and shower rooms, and accessible seating, tables, and work surfaces. The ADAAG applies to apartment complexes and hotels which contain more than twenty units for rent, and these buildings must have (1) public and common use areas which are readily accessible to and usable by persons with disabilities, (2) doors of a sufficient width and design to allow passage into and within all premises by persons with disabilities in wheelchairs, (3) a certain number of disabled accessible units which are equipped with: (a) an accessible route to and from the unit (b) light switches, electrical outlets, thermostats and other environmental controls in accessible locations (c) reinforcements in bathroom walls to allow later installation of grab bars around the toilet, tub, shower stall and shower seat, where such facilities are provided; and (d) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. Presumably, an owner’s failure to comply with this statute will give a disabled individual a cause of action for any injury proximately caused by the violation.

Fried Rogers Goldberg Premises Liability Verdicts and Settlements

  • $3 million – Premises Liability
  • $1,752,330.21 – Wrongful Death
  • $1,400,000 – Escalator Malfunction

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