The Landmark Negligent Security Opinion from the Georgia Supreme Court, Part II; "Reasonable Forseeability"
08/03/2023We recently posted about the Supreme Court of Georgia’s landmark opinion that created a new common law liability imposed on to security contractors in premises liability cases. Ga. CVS Pharmacy, LLC v. Carmichael, Nos. S22G0527, S22G0617, S22G0618, 2023 Ga. LEXIS 141 (June 29, 2023). As mentioned in that post, the Supreme Court’s opinion addressed several topics as it relates to negligent security cases. Here, we discuss the most noteworthy aspect of the opinion — the Court’s lengthy analysis of the test for determining the “reasonable foreseeability” of a criminal act.
Under Georgia law, to succeed on a premises liability claim arising from third-party criminal conduct, a plaintiff must plead the standard negligence elements — duty, breach, and causation. A plaintiff must also demonstrate that the criminal act by a third party was reasonably foreseeable to the premises owner in order to establish that a premises owner had a duty to invitees with respect to that action. If, for example, a criminal action by a third party is not reasonably foreseeable, the owner or occupier of land has no duty to stop it from occurring. After all, a party cannot be expected to prevent something it cannot reasonably foresee. In such a case, a party seeking to recover for injuries caused by the unpredictable criminal action would be unable to recover as a matter of law.
Unfortunately, after the Supreme Court’s recent opinion, it appears that obtaining summary judgment on the grounds that a criminal act was not “reasonably foreseeable” will be much more difficult. In its extensive analysis, the Court “clarified” that the reasonable foreseeability of a criminal act is informed by a “totality of the circumstances” analysis and is generally a question reserved to the jury.
Prior to the Court’s recent holding, to show that a criminal act was reasonably foreseeable to the premises owner, there had to be evidence showing “substantially similar” prior criminal activity. Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785 (1997). To determine whether there were prior substantially similar criminal acts, the plaintiff would have to show the acts were substantially similar so “that a reasonable person would take ordinary precautions to protect his or her customers or tenants against the risk posed by that type of activity.” Id. at 786. The prior crimes would be assessed for their likeness, proximity, or other relationship to the crime at question. Id. Other evidence could be presented to show reasonable foreseeability, but for all intents and purposes there existed a bright line rule that required a showing of “substantially similar” previous criminal activity near the location of the subject incident to show reasonable foreseeability of a criminal act by a third party.
After the Court’s recent opinion, reasonable foreseeability is characterized as a premises owner’s “reason to anticipate” informed by a totality of the circumstances analysis, rather than a test that is restricted to the type or location of a prior criminal act. Id. at 33-34. This seemingly subtle change means that evidence of substantially similar prior crimes is no longer required to show a criminal act by a third party was reasonably foreseeable to the premises owner — it is now just a consideration. Id. at 34.
While the Court does not lay out an explicit list of what these circumstances in the totality of the circumstances analysis are, the opinion does broadly state that “an establishment’s location in a high crime area and evidence that the landowner has knowledge of a volatile situation brewing on the premises” could indicate reasonable foreseeability. Id. at 26 (citations omitted). Indeed, the majority’s opinion leaves “unclear what other circumstances might be relevant.” Id. at 68 (McMillian, J., concurring). With this foggy area of law made even foggier, we expect there to be a significant amount of additional litigation in both trial and appellate courts about the implications of this new, broader standard.
Some Justices, including Justices Lagrua, McMillian, and Colvin, indicated a concern about the liability imposed on business owners now if all that is needed to show they owed a duty to protect invitees is that their business is located in a “high crime area.” It could result in businesses located in areas of high crime facing more legal risk. This could cause businesses in those areas to face higher costs of doing business, possibly resulting in closures, leaving the residents in those areas without necessary resources. The Justices urged the state legislature to take these resulting possibilities into consideration and act accordingly.
In the meantime, we expect to see more negligent security claims surviving the summary judgment stage.