Pappas Rest., Inc. v. Welch

901 S.E.2d 751

PAPPAS RESTAURANT, INC.

v.WELCH et al.

Tactical Security Group, LLC

v.Welch et al.

A21A1341

A21A1342

Court of Appeals of Georgia.

May 20, 2024

Nicole Christine Leet, Laurie Webb Daniel, Michael J. Rust, Nicholas Robert Boyd, Atlanta, for Appellant in A21A1341.

Warner S. Fox, Christine Lupo Mast, Elliott Crawford Ream, Atlanta, Harold David Melton, Robert B. Gilbreath Esq., for Appellant in A21A1342.

Naveen Ramachandrappa, Edward M. Wynn, Jennifer Lauren Peterson, James Nicholas Sadd, Aleksandra H. Bronsted, Michael Brian Terry, Frank Mitchell Lowrey IV, Atlanta, for Appellee.

Markle, Judge.

After Cynthia Welch was injured and her husband Anthony was killed in a shooting in the parking lot of Pappadeaux Restaurant, she sued Pappas Restaurant Group, which owned the property, and Tactical Security Group, LLC, which provided the on-site se- curity guards.¹ The trial court denied Pappas’s and Tactical’s motions for summary judgment, and we reversed. See Pappas Restaurants v. Welch, 362 Ga. App. 152, 867 S.E.2d 155 (2021). The Supreme Court of Georgia granted certiorari, reversed our opinion in part, vacated it in part, and remanded the case to this Court for further consideration. See Georgia CVS Pharmacy v. Carmichael, 316 Ga. 718, 736 (II) (D) (2), 743 (IV), 890 S.E.2d 209 (2023).

Specifically, with regard to Pappas’s motion, our Supreme Court concluded that foreseeability is generally a question of duty and, considering the totality of the circumstances, was not so "plain and palpable" in this case as to permit summary judgment. Carmichael, 316 Ga. at 735-736 (II) (D) (2), 890 S.E.2d 209. As to Tactical’s motion, the Court concluded that a security company could be liable in tort for the negligent performance of its duties under the Restatement (Second) of Torts § 324A ("Section 324A"), and that the scope of the security company’s duty "may be informed by the contract" between Tactical and Pappas. Id. at 740 (IV), 743 (IV), 890 S.E.2d 209.

[1] We now reconsider the appeals with the benefit of our Supreme Court’s review, and we conclude that the trial court properly denied both motions for summary judgment because there remain issues of fact that must be decided by a jury. Accordingly, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Little-Thomas v. Select Specialty Hosp.-Augusta, 333 Ga. App. 362, 363, 773 S.E.2d 480 (2015).

We previously set forth the relevant facts as follows:

Pappas owns Pappadeaux and another restaurant on the same property on Windy Hill Road, with parking lots for each and a lower lot for overflow parking. The parking lots are well-lit, and there are surveillance cameras throughout the area. To patrol the grounds, Pappas hired Tactical to provide unarmed, uniformed security guards to deter crime such as automobile break-ins and loitering, and to assist with traffic issues. On Friday nights, two guards were assigned to patrol the lots, and a third guard was stationed in the fire lane in front of Pappadeaux to monitor traffic. The guards patrolled the lots on foot or in marked security cars with flashing lights. On Friday, October 7, 2016, Welch and her husband went to dinner at Pappadeaux and parked in the lower lot. Because the restaurants were extremely crowded that night, with customers waiting over an hour to be seated, there were many people in the parking lot area. Although there were three guards on site most of that evening, one guard left at 10 p.m. After that, one of Tactical’s guards patrolled the parking lot while the second guard remained stationed in the fire lane. Shortly after 10 p.m., as the Welches walked through the parking lot back to their car, a man stepped in front of them, demanded their belongings, and then shot both of them. Anthony was killed. The shooter and his accomplices were later captured and convicted of murder.

Pappas Restaurants, Inc., 362 Ga. App. at 153, 867 S.E.2d 155.

Welch sued Pappas and Tactical for premises liability, negligence, and wrongful death.² Both defendants moved for summary judgment, which the trial court denied. This interlocutory appeal followed.

Case No. A21A1341

1. In this appeal, Pappas contends that the trial court erred in denying its summary judgment motion because the attack was not foreseeable and thus it had no duty to protect against it. It further argues that Welch failed to establish proximate cause because the evidence was wholly speculative. We conclude that the trial court properly denied summary judgment because there remain factual questions as to both the foreseeability of the crime and causation.³

a. Duty.

[2–4] "As a general rule, in order to recover on a premises liability claim arising from third-party criminal conduct, a plaintiff must present evidence of a duty, a breach of that duty, causation, and damages." Carmichael, 316 Ga. at 721 (II) (A), 890 S.E.2d 209. As to duty, it is well settled that a proprietor owes its invitees a duty "to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. But, "the landowner is not an insurer of an invitee’s safety. An intervening criminal act by a third party generally insulates a landowner from liability unless such criminal act was reasonably foreseeable." (Citation omitted.) Rautenberg v. Pope, 351 Ga. App. 503, 505 (1), 831 S.E.2d 209 (2019).

[5] When we consider whether a criminal act was reasonably foreseeable so as to establish a duty, our Supreme Court has instructed that we are to apply a totality of the circumstances approach. Carmichael, 316 Ga. at 728-732 (II) (C), 890 S.E.2d 209. Here, the evidence showed that Pappas knew a substantial number of car break-ins and property crimes had occurred on its property and in the surrounding area. Welch’s expert opined that the prior criminal activity in the parking lot and nearby put Pappas on notice, especially in light of the deficiencies in Pappas’s security plans. And Tactical suggested to Pappas that it increase security coverage because visible guards act as a deterrent. Thus, when we consider the totality of this evidence, we conclude that the facts raise a jury question on the issue of foreseeability. Id. at 735-736 (II) (D) (2), 890 S.E.2d 209.

b. Breach.

[6, 7] But establishing that there is a jury question as to duty does not end the inquiry. As our Supreme Court explained,

a finding that third-party criminal conduct was reasonably foreseeable and thereby gave rise to a duty to protect invitees from that harm does not itself establish the proprietor’s liability for the plaintiff’s injury. Instead, a factfinder must go on to address the next element of negligence: to determine whether the proprietor acted reasonably in the face of the particular foreseeable risk or whether the proprietor breached its duty to do so. So, foreseeability bears on this separate inquiry, too, but in a relative sense: for example, the factfinder must weigh the likelihood and severity of the foreseeable harm against the cost and feasibility of additional security measures in considering whether the duty owed was breached.

Carmichael, 316 Ga. at 723 (II) (A), 890 S.E.2d 209. Notably, Pappas does not argue that its conduct did not breach the duty.⁴ Thus, for purposes of this appeal we will assume that it does, and we then consider whether Welch can show that the breach was the proximate cause of Anthony’s death.

c. Causation.

[8–12] In analyzing proximate case, "the relevant question is whether, assuming the proprietor had and breached a duty to protect against certain criminal conduct, the kind of harm that occurred was a foreseeable result, or a ‘probable or natural consequence of,’ that breach." (Citation and punctuation omitted.) Carmichael, 316 Ga. at 734 (II) (D) (1), 890 S.E.2d 209. But "probable, in the rule as to causation, does not mean ‘more likely than not,’ but rather ‘not unlikely’; or, more definitely, such a chance of harm as would induce a prudent man not to run the risk; such a chance of harmful result that a prudent man would foresee an appreciable risk that some harm would happen." (Citation and punctuation omitted.) Paradise Entertainment Group v. Favors, 363 Ga. App. 636, 639 (1) (a), 871 S.E.2d 916 (2022).

The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery. And, a general rule of proximate cause is that a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience.

(Citations and punctuation omitted.) Goldstein, Garber & Salama v. J. B, 300 Ga. 840, 842 (1), 797 S.E.2d 87 (2017); see also Suresh & Durga v. Doe, 369 Ga. App. 787, 795-796 (1) (b) (iii), 894 S.E.2d 602 (2023). Evidence seeking to establish causation cannot be speculative or too uncertain. Tara Bridge Apartments v. Benson, 365 Ga. App. 647, 652 (a), 879 S.E.2d 531 (2022); see also Stadterman v. Southwood. Realty Co., 361 Ga. App. 613, 615 (1), 865 S.E.2d 231 (2021) ("[A] mere possibility of such causation is not enough[.]").

With these standards in mind, we consider the evidence Welch presented to establish causation, including the testimony of various Pappas and Tactical employees, video surveillance of the attack, and expert testimony from John Villines...