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Agnes Scott College5/24/2005
daytime attack against Clark. Agnes Scott appeals from this order.
1. Agnes Scott contends that the trial court erred in denying its motion for summary judgment. We agree.
Although a landowner has a duty to invitees to exercise ordinary care to keep its premises safe (see OCGA ยง 51-3-1), the landowner is not an insurer of an invitee's safety. See Fernandez, supra, 261 Ga. App. at 892. An intervening criminal act by a third party generally insulates a landowner from liability unless such criminal act was reasonably foreseeable. Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995) ("Simply put, without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises"); see also Baker v. Simon Property Group, - Ga. App. - (Case No. A05A0177; decided April 6, 2005) (mall owner properly granted summary judgment where shooting of patron in parking lot was not foreseeable).
In order for the crime at issue to be foreseeable, it must be substantially similar to previous criminal activities occurring on or near the premises such that a reasonable person would take ordinary precautions to protect invitees from the risk posed by the criminal activity. See Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997).
In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability 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 particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the [landowner's] attention to the dangerous condition which resulted in the litigated incident.
(Citations and punctuation omitted.) Id.
Applying this standard, the Georgia Supreme Court has held that a landlord was entitled to summary judgment on the claim of a victim who was attacked in a parking garage and raped nearby, because the crime was unforeseeable as a matter of law. Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 268 Ga. 604, 606 (492 SE2d 865) (1997), affirming Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 222 Ga. App. 169 (474 SE2d 31) (1996). In Doe, the victim was attacked on a sunny afternoon in a parking garage where no violent attacks had occurred in the past. Doe, supra, 222 Ga. App. at 169-172 (1) (a). The only prior crimes that had been committed in the garage were crimes against property, such as thefts from automobiles and a few acts of vandalism. See Doe, supra, 268 Ga. at 606; Doe, supra, 222 Ga. App. at 170 (1) (a). In affirming the grant of summary judgment to the landlord, the Supreme Court held:
he prior property crimes, largely thefts from automobiles and acts of vandalism, are insufficient to create a factual issue regarding whether [the landlord] could reasonably anticipate that a violent sexual assault might occur on the premises. First, the very nature of the thefts and acts of vandalism committed in this case do not suggest that personal injury may occur. Further, because the parking garage where the prior crimes occurred is a common area, used by all the tenants and their guests, there is only the potential for a tenant to confront a thief in an isolated situation, and, even if such an encounter occurs, there is always the possibility that the isolation could be brief.
(Footnote and punctuation omitted; emphasis supplied.) Doe, supra, 268 Ga. at 6
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