A fellow lawyer won an important victory at the Court of Appeals last Spring (The Bethany Group LLC v. Grobman 315 Ga.App. 298 (2012) which resulted in a $1.2 million dollar settlement for the family of a taxi driver who was murdered at an apartment complex. What is noteworthy about the development is the difficult facts they had to work with. The victim was a cab driver summoned to the property by a disposable phone. No evidence of at request from a tenant and that is a tough case.
As we have discussed before, there are certain key elements that have to be present to bring claim under the law against an apartment or landlord when a person is murdered or injured on the premises. These are the key rules:
1. The landlord is normally not responsible for the wrongful death caused by a criminal.
2. That changes if there is a history of similar crime on the property. Why? Because knowledge of the prior crime alerts the property owner to the danger and once you know, you have a duty to act. You cannot stand by and watch people get hurt.
Examples: Car break ins are not the same as person on person crime and will not put the property on notice of a problem.
Armed robberies will put a complex on notice that injury or wrongful death is possible because it is person on person with a weapon.
“[w]hile the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.” The Bethany Group LLC v. Grobman 315 Ga.App. 298 (2012) citing Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997) (evidence of prior burglaries was sufficient to give rise to a triable issue as to whether landlord had duty to exercise ordinary care to safeguard against risks posed by prior burglaries where the plaintiff was raped). See also Rigdon, 256 Ga.App. at 501(1), 568 S.E.2d 790.
3. Once the landlord is on notice of a problem, they have to take reasonable steps. There is no textbook definition of what is reasonable but, you know it when you see it.
A complex with functioning gates, surveillance and 24 hour security teams of sufficient numbers to cover the size of the property is arguably sufficient and reasonable.
Reducing security after multiple incidents is probably not reasonable.
Keep in mind that these are the general rules for what we call invitees. Invitees are people that were welcome on the property like tenants, guests of tenants and contractors asked onto the property by a tenant. To these people a duty of ordinary care is owed.
The second class of people are licensees and this is dicier. A licensee has a “license” to be there but they are there for their own purposes. Salesmen and other people there for their own gain fall into this category. The landlord owes them a lesser duty; the duty not to willfully or wantonly allow them to come to harm. Insurance companies usually get excited when the victim is a licensee because they think nobody behaves wantonly. Thankfully, the Court of Appeals almost ignores the distinction.
“That is because it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises. Accordingly, if a danger to a licensee is known and foreseen by the property owner, then the owner must exercise ordinary care and diligence to protect that licensee from the peril.” The Bethany Group LLC v. Grobman 315 Ga.App. 298 (2012) citing Rigdon v. Kappa Alpha Fraternity, 256 Ga.App. 499, 501(1), 568 S.E.2d 790 (2002). See also McCullough v. Reyes, 287 Ga.App. 483, 487(2), 651 S.E.2d 810 (2007).
This was the Court’s analysis where a taxi driver was invited on the property by an unknown assailant and robbed and shot. The Court found evidence of other armed robberies of cab drivers and taxi cabs and reasoned that where the complex knows of that type of crime and knows that the cabbies will be there, it has a duty to exercise ordinary care to try to protect against the violence.
Think about it or a minute. The Republican reader will say why is it the private business owners fault that some thug shoots a cabbie? That’s not fair. The answer is the private owner is in the position to take action. Get decent security when you know crime is getting out of hand. You make money off of your tenants, for God’s sake, at least try to protect them when the property turns into a war zone. As a society it would be nice to think that land owners in bad neighborhoods would act altruistically without the threat of litigation. Unfortunately this is not true. The threat of a civil suit is a motivating factor in protecting the entire community. Look up Broken Windows theory for the outcome when nothing is done. Crime grows in the dark when no one cares.
The insurance company tried to have the trial court throw the case out but the Court declined and the Court of Appeal backed up the trial judge. It harkens back to an old adage the defense should have paid attention to; bad facts make bad law. When the property is a war zone, don’t make appellate law.
Well run apartments will still get out on summary judgment, as they should. Crimes committed against a specific person on purpose will still get thrown out, as they should. For the preventable crimes however, we should all sleep a little bit better because the civil law will punish those who turn a blind eye to their property when it backslides in a dangerous place.