How the Recent Landmark Opinion from the Georgia Supreme Court Could Impact Negligent Security Cases in Unexpected Ways
7/7/2023The Supreme Court of Georgia recently issued a landmark opinion in a set of negligent security cases. Ga. CVS Pharmacy, LLC v. Carmichael, Nos. S22G0527, S22G0617, S22G0618, 2023 Ga. LEXIS 141 (June 29, 2023) (A PDF copy of this opinion is avialable for download at the top of the page). The most noteworthy aspect of the opinion is the Court’s lengthy exploration of what makes a criminal act “reasonably foreseeable” such that a premises owner owes invitees a duty to protect against it. While that is certainly an important topic (which will be addressed more in later blog posts), the Court’s lengthy opinion also provides much needed clarity on other aspects of negligent security law, such as the scope of the duty owed by security contractors to third parties in negligent security cases. Id. at 42-43. Now, security contractors’ duties arise not only out of contractual obligations, but also out of Georgia Tort law. Id. at 47.
Before this opinion, security contractors argued, and Georgia courts agreed, that they had no direct legal duty to third parties (such as invitees) and, therefore, could not be liable for criminal acts occurring on properties where they provided security services unless such claims were specifically contemplated by their services agreement with the premises owner. The reasoning behind this argument was that O.C.G.A § 51-3-1 (Georgia’s “premises liability statute”) imposed duties only on the owner and/or occupier of a premises to keep that property reasonably safe, not an independent contractor. Therefore, Georgia courts have held that security contractors could not face liability based on a "premises liability" theory founded in O.C.G.A. § 51-3-1, and security contractors often used this argument successfully at the summary judgment phase of a negligent security case.
In the recent opinion, the Georgia Supreme Court agreed that O.C.G.A. § 51-3-1 does not apply to independent contractors like security companies providing services to a given premises. However, the Court clarified that these types of contractors could still have a duty under common law tort principles, specifically those articulated in Section 324A of the Restatement (Second) of Torts. Under this rule, security contractors will be found to owe a duty to invitees in negligent security cases if 1) the security contractor’s failure to exercise reasonable care in the performance of its duties increased the risk of harm, 2) the security contractor had undertaken to perform a duty owed by the other to the third person, or 3) the harm was suffered because the plaintiff relied upon the security contractor.
By explicitly adopting the rule stated in Section 324A of the Restatement (Second) of Torts, the Court made clear that security contractors do have a legal duty based in the common law to invitees of a premises. The Court also seems to have reversed prior case law stating that this rule did not apply in the premises liability context. Historically, it only applied in the context of negligent inspections, but now the Court definitively stated that Section 324A applies in negligent security claims.
Practically speaking, looking at other States that use Restatement (Second) 324A in negligent security cases, this opinion will likely make it more difficult for security contractors to obtain summary judgment. Professional Sports v. Gillette Sec., 159 Ariz. 218, 766 P.2d 91, 93-96 (1988); Travelers Ins. Co. v. Securitylink from Ameritech, Inc., 995 So.2d 1175, 1177 (2008); Truitt v. Diggs, 611 P.2d 633, 636 (1980). It also means that business and property owners will not be the sole entities on the hook for damages in negligent security cases. We will have to wait and see how exactly how Georgia courts interpret this newly expanded duty and will be publishing more blog posts on this opinion soon.
By: Andrew Bagley (with special help and assistance from MMBB Law's Summer Law Clerk, Grace Rapella)