Georgia CVS Pharmacy, LLC v. Carmichael

362 Ga.App. 59

865 S.E.2d 559

GEORGIA CVS PHARMACY, LLC

v.CARMICHAEL.

A21A0677

Court of Appeals of Georgia.

November 1, 2021

Reconsideration Denied November 18, 2021

Laurie Webb Daniel, Matthew D. Friedlander, Atlanta, for Appellant.

Naveen Ramachandrappa, Peter Andrew Law, Atlanta, Brian David Trulock, James Alexander Rice Jr., Michael Brian Terry, Carrie Amanda Moss, Brian Colty Kaplan, Atlanta, for Appellee.

Miller, Presiding Judge.

One evening in December 2012, James Carmichael was shot multiple times by an unknown assailant in an Atlanta CVS parking lot, leaving him with multiple severe long-term injuries. Carmichael brought this premises liability case against CVS, arguing that CVS failed to take adequate security measures to protect the property. A Fulton County jury found in favor of Carmichael and returned an adjusted verdict of $42,750,000 against CVS. CVS appeals from the jury's verdict and the denial of its motion for new trial, arguing that (1) there was insufficient evidence to show that CVS caused Carmichael's injury or that CVS had superior knowledge of the danger; (2) the trial court erred in failing to charge the jury on a "personal malice" defense; (3) the jury rendered a void verdict when it apportioned 0% of the fault to the unknown assailant; and (4) Carmichael was actually a licensee, not an invitee, and so CVS owed him a lesser standard of care.

We affirm the jury's verdict because (1) a reasonable jury could conclude from the evidence at trial that the robbery was reasonably foreseeable to CVS; that Carmichael did not have superior knowledge of the danger; and that increased lighting or a security guard presence could have deterred the attack; (2) CVS's proposed jury instruction was substantially covered by the trial court's other instructions; (3) the jury properly declined to apportion fault to the two non-parties on the verdict form; and (4) CVS waived review of its licensee argument by failing to present it below.

In reviewing a verdict after the denial of a motion for new trial, we follow well-established principles. Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of the motion for new trial will not be disturbed.

(Citation omitted.) Golden Isles Cruise Lines, Inc. v. Lowie , 350 Ga. App. 1, 1-2, 827 S.E.2d 703 (2019).

The record adduced at trial shows that on December 20, 2012, at around 6:40pm, Carmichael was driving through Atlanta on his way home to Alabama when he decided to stop at a CVS on Moreland Avenue for some toiletries. While there, Carmichael called an acquaintance, Frankie Gray, and asked Gray to meet him at the CVS to complete a previously discussed sale of an iPad. Carmichael thought the CVS store "was a safe place to meet Mr. Gray" because "CVS is a national chain." Carmichael parked by the front door of the CVS store to meet with Gray.

After Carmichael met with Gray and Gray left, an unknown man jumped into Carmichael's car, put a "big" gun to Carmichael's head, threatened to kill him, and said, "Give me your money." Carmichael "took everything out" and pleaded for his life. Carmichael then grabbed his own pistol and attempted to shoot, but the gun jammed. The perpetrator then fired several rounds into Carmichael's stomach, back, and shoulder. After the perpetrator fled, Carmichael ran into the store for help before collapsing. Carmichael was comatose for about a month afterward, and he has since undergone multiple surgeries and continues to suffer from permanent nerve damage, hearing loss, speech deficiencies, and chronic pain. Carmichael also incurred medical bills in the amount of $725,800.

Carmichael filed this premises liability action against CVS, arguing that CVS failed to take adequate security measures to protect the property, such as by having security guards present or having improved lighting in its parking lot.¹

At trial, many current and former Moreland Avenue CVS store employees testified as to the store's conditions. Numerous employees testified that the store was located in a high-crime area. CVS's employees and managers considered the parking lot at the Moreland Avenue store unsafe, to the point that male employees regularly walked female employees to their cars. The employees would also park close to the building because of the spotty lighting in the parking lot. Two employees respectively rated the safety problems at the store as an "8" and "9" out of ten. Three employees testified that they were "not surprised" that Carmichael was shot on the premises.

Ceilia Wilson, a supervisor with CVS, testified that the store previously had security guards that provided a "good deterrent" and made her feel safer, but they were removed in 2010. The store's employees repeatedly requested security guards from CVS after that point, but their requests were all denied. The witnesses at trial testified that, after security was removed, at least three violent crimes occurred at the Moreland Avenue store. Patricia Ham, a former cashier at the store, testified that, in February 2011, a robber approached her at the register, showed her what she "believe[d] to be a handgun," threatened to kill her, and demanded money. Cierra Langford, a CVS customer, testified that, in June 2012, a robber approached her in the parking lot after she left the store. The robber followed her to her car, which was "parked right in front," and "hit [her] in [the] head and took [her] purse." Holly White, a CVS shift manager, testified that, in November 2012, a robber approached her in the store and demanded at gunpoint that she open the cash registers. Following these crimes, Langford filed an incident report with CVS, and Ham and White both requested security from CVS based on their respective incidents.

Carmichael's expert witness testified that "there's an overwhelming body of research which confirm[ed] that [armed security] has a high deterrent effect." In the expert witness's opinion, if CVS had a security guard present, "the robbery more likely would have been prevented." The expert witness also reviewed the lighting at the Moreland Avenue store's parking lot and testified that, in his opinion, it was spotty and inconsistent, and a uniform lighting would "facilitate better visibility in the area to deter loitering, trespassing, [and] any of those undesirable activities." The investigating officer also testified that he found "armed security effective" and that "in [his] experience ... people don't rob and shoot people while an officer is sitting there." Finally, CVS's corporate representative, Andrew Edwards, also testified in his deposition (which was read to the jury) that security guards were an effective deterrent, that "CVS wouldn't hire security guards if they didn't believe they were effective," and that "sufficient lighting" could "be a deterrent to violent crime."

The jury found CVS 95% at fault, Carmichael 5% at fault, and both Gray and the shooter 0% at fault for the incident, and it awarded Carmichael an adjusted total of $42,750,000 in damages (representing 95% of its total verdict of $45,000,000). After trial, CVS filed a motion for new trial and a motion for j.n.o.v. Following a hearing, the trial court denied the motions, and this appeal followed.

1. In three related arguments, CVS argues that the trial court erred by failing to direct a verdict or grant a new trial because the evidence was insufficient to support the element of causation and to show that it had superior knowledge of the danger presented by the unknown shooter. Specifically, CVS argues that (1) Carmichael failed to produce evidence showing that the attack was reasonably foreseeable to CVS; (2) the undisputed evidence showed that Carmichael had superior knowledge of the danger; and (3) Carmichael's contention that increased lighting or a security guard presence would have prevented the attack was too speculative. We reject each of these arguments because there was sufficient evidence from which a reasonable jury could conclude that CVS proximately caused Carmichael's injuries and that CVS had superior knowledge of the danger.

"The standard of appellate review of a trial court's denial of a motion for a directed verdict is the any evidence test. Moreover, in considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. We review any pure questions of law de novo." (Citations and punctuation omitted.) Camelot Club Condominium Assoc., Inc. v. Afari-Opoku , 340 Ga. App. 618, 620 (1), 798 S.E.2d 241 (2017). Additionally,

[t]he standard of appellate review of the denial of a motion for new trial on the general grounds is essentially the same as that applicable to the denial of a motion for directed verdict or judgment n.o.v. The appellate courts can only set a verdict aside, on evidentiary grounds, as being contrary to law in that it lacks any evidence by which it could be supported.

(Citation omitted.) Morrison v. Kicklighter , 329 Ga. App. 630, 631-632 (1), 765 S.E.2d 774 (2014).

[W]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. Although a landowner has a duty to invitees to exercise ordinary care to keep its premises safe[,] the landowner is not an insurer of an invitee's safety. In order to recover on a premises

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