The RETAIL PROPERTY TRUST v. GWENDOLYN MCPHAUL

THIRD DIVISION
DOYLE, P. J.,
REESE, P. J., and BROWN, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.

April 14, 2021

In the Court of Appeals of Georgia
A21A0467. THE RETAIL PROPERTY TRUST v. MCPHAUL et al.

BROWN, Judge.

In this interlocutory appeal, the Retail Property Trust (“RPT”), owner of Lenox

Square Mall, appeals the order denying its motion for summary judgment in this

action for damages filed by Gwendolyn McPhaul, her husband, Ray McPhaul, and her

daughter, Dana McPhaul, arising out of an incident in the mall parking lot during

which Gwendolyn was struck by a vehicle driven by Jessika Blanton. RPT argues,

among other things, that Blanton’s act of driving into Gwendolyn was not reasonably

foreseeable. We agree and reverse the order denying summary judgment to RPT.

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. A defendant
 may do this by showing the court that the documents, affidavits,
depositions and other evidence in the record reveal that there is no
evidence sufficient to create a jury issue on at least one essential element
of plaintiff’s case. If there is no evidence sufficient to create a genuine
issue as to any essential element of plaintiff’s claim, that claim tumbles
like a house of cards. All of the other disputes of fact are rendered
immaterial. Further, the burden on the moving party may be discharged
by pointing out by reference to the affidavits, depositions and other
documents in the record that there is an absence of evidence to support
the nonmoving party’s case. If the moving party discharges this burden,
the nonmoving party cannot rest on its pleadings, but rather must point
to specific evidence giving rise to a triable issue.

(Citation and punctuation omitted.) Med. Center Hosp. Auth. v. Cavender, 331 Ga.

App. 469, 470 (771 SE2d 153) (2015) (physical precedent on other grounds). Viewed

in the light most favorable to the McPhauls, the evidence shows that on February 14,

2015, Dana McPhaul and her mother, Gwendolyn McPhaul, were driving into Lenox

Square Mall when they collided with Blanton’s SUV. Dana and Blanton exited their

respective vehicles, shouting and arguing loudly about the incident, each accusing the

other of causing the collision. Dana testified that she was upset and that Blanton was

“really upset [and] extremely angry” and that both she and Blanton “us[ed]

profanity,” but Blanton never threatened Dana. A retired police officer, in uniform

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and working mall security that day, reported to the “altercation” and noticed that there

was “finger-pointing going on.” After observing that the women were agitated, the

officer made sure “everybody was reasonably well-calmed down” and then directed

the women to move their vehicles to an adjacent parking lot, where they parked back-

to-back, about two-car-lengths apart from each other. According to the officer, the

arguing had stopped by this point and “both parties were fully calmed.”

While the officer was speaking with Blanton, Dana walked over; Dana

acknowledged that she would not have walked over to Blanton if she had felt unsafe.

According to Dana, the officer “couldn’t control the situation” and the “situation was

hostile”; Blanton was irate and pointed her finger at Dana’s face, but Dana never

feared for her life. Dana walked away from Blanton and proceeded to lean on the

back of her vehicle with Gwendolyn. The officer finished speaking with Blanton and

told her she was free to go. Blanton asked for directions to the exit and then got into

her vehicle to leave. In the meantime, the officer walked over and began speaking

with Dana and Gwendolyn who were still leaning on the back of Dana’s vehicle. As

they were speaking, Blanton’s vehicle suddenly reversed at a high rate of speed,

knocking Gwendolyn to the ground and pinning her left leg under the tire. According

to Dana, Blanton’s vehicle “flew back so fast. . . like a shot out of a — I don’t know.”

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Dana confirmed that had she felt that she was in a “dangerous situation, [she] would

. . . have moved [her] position.”

The eyewitness to the incident deposed that she was sitting on a bench outside

the mall, adjacent to the scene, when she heard two women shouting and arguing

loudly and observed an officer attempting to diffuse the situation, but noted that he

did not seem to have control over the situation. The scene became quiet, and then the

witness heard a loud noise and observed Blanton’s vehicle reverse, hit a tree, and then

run over a curb. The witness heard Dana scream, “You killed my mama,” and then

observed Blanton get out of her vehicle. Blanton was “totally hysterical”; seemed to

be in shock; was crying profusely; and said to Dana, “I’m sorry, I didn’t mean to do

it.” The witness recalled hearing the engine of Blanton’s vehicle “rev up,” but that the

“revving was not a warning signal.” Gwendolyn suffered various injuries, including

amputation of her left leg.

The McPhauls sued Blanton, RPT, and Allied Universal, which provides

security services for the mall. As relevant here, the McPhauls asserted claims against

RPT for premises liability, negligent security, and vicarious liability for the

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 negligence of the officer. After some discovery was completed,1 RPT moved for

summary judgment, asserting, in relevant part, that Blanton’s act of driving into

Gwendolyn was not reasonably foreseeable. The trial court summarily denied RPT’s

motion but certified its order for immediate review. This Court granted RPT’s

application for interlocutory appeal to consider whether the trial court erred in

denying RPT’s motion for summary judgment.

1
Two days after the trial court denied RPT’s motion for summary judgment, it
granted the McPhauls’ motion to compel responses to discovery requests. In particular, the
court granted the McPhauls’ motion to compel the defendants to produce the following:

all documents in [the defendants’] possession, custody, or control that
concern or relate to all assaults, batteries, murders, and crimes involving the
use of a gun or deadly weapon that occurred on, or immediately adjacent to,
the Premises from February 1, 2010 through and including the present[;]
...

all police reports/incident reports concerning any and all assaults, batteries,
murders, and crimes involving the use of a gun or deadly weapon that
occurred on, or immediately adjacent to, the Premises from February 1, 2010
through and including the present[; and]
...

all Lenox Square Command Center Logs referencing [the officer for the] two
years before and two years after the subject accident.

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 1. RPT contends that it is entitled to summary judgment on the McPhauls’

negligence/premises liability claim because the incident was not reasonably

foreseeable. The McPhauls characterize Blanton’s act of reversing into Gwendolyn

as an act of “road rage” which was reasonably foreseeable based on prior similar

incidents at the mall, and that the officer should have recognized Blanton’s road rage

and called for back up. For the following reasons, we agree with RPT.

(a) It is well settled that the McPhauls must establish the following elements

to support their negligence claim: Duty, breach, causation, and injury or damages. See

Cavender, 331 Ga. App. at 472 (1). In a premises liability claim, the owner or

occupier of land owes a duty to an invitee to keep the premises and approaches safe.

See OCGA § 51-3-1. However, “[a] property owner is not an insurer of an invitee’s

safety, and an intervening criminal act by a third party generally insulates a proprietor

from liability unless such criminal act was reasonably foreseeable.” (Citation and

punctuation omitted.) Ratliff v. McDonald, 326 Ga. App. 306, 312 (2) (a) (756 SE2d

569) (2014). Put another way, “[i]f the [owner] has reason to anticipate a criminal act,

he or she then has a duty to exercise ordinary care to guard against injury from

dangerous characters.” (Citation and punctuation omitted.) Cavender, 331 Ga. App.

at 473 (1). But, an owner “is not bound to anticipate or foresee and provide against

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that which is unusual or that which is only remotely and slightly probable.” (Citation

and punctuation omitted.) Id. at 474 (1). Indeed, without foreseeability that a criminal

act by a third party will occur, the proprietor has no duty to exercise ordinary care to

prevent the act. See id.

One way to establish foreseeability is to show that the property owner has

notice of substantially similar prior criminal acts. See Sturbridge Partners, Ltd. 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 [defendant’s] attention to the dangerous
condition which resulted in the litigated incident.

(Punctuation omitted.) Ratliff, 326 Ga. App. at 312-313 (2) (a), citing Sturbridge, 267

Ga. at 786. “Without a showing of substantial similarity, the evidence is irrelevant as

a matter of law and there is nothing upon which the court’s discretion can operate.”

(Citation and punctuation omitted.) Cavender, 331 Ga. App. at 474 (1). Additionally,

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“it is the [p]laintiffs’ burden to establish that the property owner had knowledge of

the previous substantially similar crimes on or near the premises upon which the

plaintiffs rely to establish foreseeability.” Id.

In this case, the McPhauls point to five incidents in the mall parking lot,

occurring in 2010, 2011, 2012, and 2013, which they similarly characterize as

incidents of “road rage.” Pretermitting whether Blanton’s act was an act of “road

rage,” none of the five incidents identified by the McPhauls are substantially similar

to the incident here. In the first place, none of the five incidents involved an act of

“road rage” in front of law enforcement, and all but one involved altercations over

parking spots, and included intentional acts of physical violence (i.e., twice backing

into woman who was trying to reserve parking spot for her friend by standing in it

and shoving victim who pulled into parking space ) or acts of vandalism that were

preceded by threatening words and/or behaviors, including a racist tirade (i.e.,

removing stem from victim’s tire after screaming at victim for taking parking space

and cutting off victim trying to get parking space and repeatedly screaming, “stupid

white bitch” ).

The location of the five incidents is the only similarity to this case; nothing

about those incidents would have made the unfortunate incident here foreseeable to

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RPT or the officer. Cf. Cavender, 331 Ga. App. at 475 (1) (a) (prior incidents of

criminal activity at hospital, none of which involved murder, a shooting, discharging

a weapon, or significant injury, insufficient to satisfy plaintiffs’ burden to establish

foreseeability in action against hospital stemming from murderous rampage by man

whose mother was treated and died at hospital). “Foreseeable consequences are those

which, because they happen so frequently, may be expected to happen again.”

(Citation, punctuation, and emphasis omitted.) Id. Incidents that are so “unusual,

contrary to ordinary experience, and rare” are not ones that are legally foreseeable and

capable of being guarded against. (Citation and punctuation omitted.) See id. See also

Boone v. Udoto, 323 Ga. App. 482, 484 (1) (747 SE2d 76) (2013) (“[o]ne is not

bound to anticipate or foresee and provide against that which is unusual or that which

is only remotely and slightly probable”) (citation and punctuation omitted; emphasis

in original). Such is the case here. The incident here was not legally foreseeable, and

the prior incidents in the mall’s parking lot are insufficient to create a factual issue

as to whether RPT and/or the officer could reasonably anticipate that a collision at the

entrance to the mall would escalate such that one of the individuals involved would

reverse her vehicle into three people, including a uniformed officer. See Baker v.

Simon Property Group, 273 Ga. App. 406, 408 (1) (614 SE2d 793) (2005) (prior

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property crimes in the mall’s parking lot insufficient to create a factual issue as to

whether the defendant-owners could reasonably foresee that a carjacking and

shooting resulting in personal injury might occur). See also Ratliff, 326 Ga. App. at

313 (2) (a) (without evidence of prior similar incidents in jail parking lot, act of

running vehicle into plaintiff in the presence of law enforcement not reasonably

foreseeable).

Moreover, even though Blanton may have been “irate” about the collision and

pointed her finger in Dana’s face, there is no evidence that Blanton made any specific

or immediate threats toward Dana or Gwendolyn. In Ratliff, a case heavily relied upon

by RPT, this Court addressed a more egregious incident and affirmed the trial court’s

grant of summary judgment to the defendants. 326 Ga. App. at 313 (2) (a). In that

case, the plaintiff sued the Cobb County Sheriff and six of his deputies on the basis

of premises liability, after her friend’s boyfriend’s ex-girlfriend struck the plaintiff

with her vehicle in the parking lot of the Cobb County Adult Detention Center while

the plaintiff and her friend were picking up the boyfriend who had been incarcerated.

The ex-girlfriend had threatened to kill the plaintiff’s friend previously, and there was

evidence showing that the deputies were aware the ex-girlfriend was “‘crazy.’” Id. at

307. When the plaintiff went to pick up the boyfriend, she observed the ex-girlfriend

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in the parking lot. She advised the deputies, and, as a precaution, the deputies

followed the plaintiff and her friend to the pick-up area in a separate vehicle. As the

two women traversed the parking lot, a deputy heard the ex-girlfriend yell out her

vehicle window, “‘Bitch, if you go down there, I’ll run your ass over.’” Id. at 308.

The ex-girlfriend then gunned her vehicle, striking the two women. Id. at 307-308.

This Court affirmed the trial court’s grant of summary judgment to the

defendants on the plaintiff’s claims for premises liability and respondeat superior,

finding that the plaintiff presented no evidence of any similar incidents in the parking

lot, no evidence of any specific, immediate threats made by the ex-girlfriend, and no

prior acts of violence by the specific individual known to the plaintiff or defendants.

Ratliff, 326 Ga. App. at 313 (2) (a). We therefore concluded that the plaintiff failed

to establish that it was reasonably foreseeable to the deputies that the ex-girlfriend

would strike the plaintiff with her truck in the parking lot in front of at least four

deputies. Id. at 313 (2) (a). We also pointed out that “even if an intervening criminal

act may have been reasonably foreseeable, the true ground of liability is the superior

knowledge of the proprietor of the existence of a condition that may subject the

invitee to an unreasonable risk of harm,” and concluded that the plaintiff had at least

an equal, if not superior, knowledge of the degree of the threat posed by the ex-

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girlfriend and consequently, had an equal or greater degree of foreseeability. (Citation

and punctuation omitted; emphasis in original.) Id. Likewise, in this case, given the

lack of evidence of any specific, immediate threat, and no prior act of violence by

Blanton known to RPT, the McPhauls have “failed to establish that it was reasonably

foreseeable to [the officer] that [Blanton] would strike [Gwendolyn] with her

[vehicle] in the [mall] parking lot directly in front of [law enforcement].” Ratliff, 326

Ga. App. at 313 (2) (a).

(b) With regard to the question of superior knowledge, even assuming that RPT

and/or the officer should have foreseen the danger, Dana and Gwendolyn’s act of

leaning on the rear of their vehicle, directly behind Blanton’s vehicle and in sight of

the officer, excluded any possibility that the officer had “superior knowledge . . . of

the existence of a condition” that may have subjected Gwendolyn to an unreasonable

risk of harm, i.e., that Blanton was angry enough after the collision to use her vehicle

as a weapon and intentionally reverse it into Gwendolyn. Ratliff, 326 Ga. App. at 313

(2) (a). See also Brownlee v. Winn-Dixie Atlanta, Inc., 240 Ga. App. 368, 370 (2)

(523 SE2d 596) (1999) (“the inquiry is whether the proprietor had superior

knowledge of the danger that a third party would so act”). We note as well that if the

officer had superior knowledge, he likely would not have placed himself in danger

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by standing with Gwendolyn and Dana at the rear of Dana’s car, directly behind

Blanton’s vehicle.

(c) Finally, the McPhauls’ attempt to show foreseeability through the affidavit

of a criminologist also fails. The criminologist opined that Blanton “experienced a

condition which is commonly called ‘road rage.’” According to the criminologist,

“road rage” includes behaviors such as rude and offensive gestures, verbal insults,

physical threats, or dangerous driving methods targeted toward another driver or a

pedestrian. The criminologist’s opinion, however, fails to identify any specific

behavior by Blanton that could be characterized as road rage; it simply provides a

generalized discussion of road rage and its characteristics which is insufficient to

create an issue of fact as to foreseeability. See, e.g., Brown v. All-Tech Investment

Group, 265 Ga. App. 889, 895-896 (1) (595 SE2d 517) (2003) (experts’ opinions

which discussed generalized concepts of violent reactions to financial disaster and

workplace violence insufficient to create issue of fact as to foreseeability of shooting

spree at the offices of two day-trading firms which killed nine people); Cavender, 331

Ga. App. at 476 (1) (a) (expert’s opinion which relied on generalized increase in

healthcare violence without specific reference to such violence insufficient to create

issue of fact as to foreseeability). There is no evidence in the record that Blanton

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engaged in any of these behaviors. While Dana deposed that Blanton pointed a finger

in her face, she never stated that the conduct was rude or offensive; that she felt

threatened or unsafe; or that she feared for her life. And aside from using profanity,

there is no evidence that Blanton insulted Dana, threatened her, or targeted her with

her vehicle previous to the incident while the two women were moving their cars to

the parking lot. Finally, the affidavit fails to show how Blanton’s “road rage” made

the specific injury in this case foreseeable to RPT.

(d) The McPhauls seemingly contend that it would be premature to grant

summary judgment to RPT because “[u]pon information and belief, there are other

similar incidents that occurred within five (5) years prior to February 14, 2015[,] that

are in [RPT’s] possession; however [RPT] has continuously failed and refused to

produce such evidence.” We are not persuaded. As set out in footnote 1, supra, the

documents the McPhauls seek from RPT — and which are the subject of the trial

court’s order to compel — will in no way establish the element of “foreseeabilty of

risk” as they are related to assaults, batteries, murders, and crimes involving the use

of a gun or deadly weapon that occurred on or adjacent to the mall from February 1,

2010, through and including the present; such crimes are not substantially similar to

the incident at issue here. See Drayton v. Kroger Co., 297 Ga. App. 484, 486 (677

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SE2d 316) (2009) (evidence of prior nonviolent property crimes, robbery of store

employee, and falls in grocery store parking lot not substantially similar to prove that

robbery and assault of customer in same parking lot was reasonably foreseeable to

defendant-owner); Baker, 273 Ga. App. at 407-408 (1).

(e) For the above-stated reasons, we reverse the trial court’s order denying

summary judgment to RPT.

2. Pursuant to the doctrines of respondeat superior and apparent authority, the

McPhauls sought to impose vicarious liability on RPT on the basis that the officer

failed to exercise care because he did not radio for assistance or call police; did not

properly diffuse the situation; and allowed Blanton to leave even though she was still

clearly upset, angry, and involved in the altercation. RPT contends that the trial court

erred in denying summary judgment in its favor on this claim because there is no

evidence that Blanton’s actions could have been reasonably anticipated or foreseen

by the officer. We agree.

As previously mentioned, “to recover for injuries caused by another’s

negligence, a plaintiff must show four elements: a duty, a breach of that duty,

causation and damages.” (Citation and punctuation omitted.) City of Richmond Hill

v. Maia, 301 Ga. 257, 258 (1) (800 SE2d 573) (2017). As to the element of causation,

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“[a] plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’

and the ‘proximate cause’ of the injury.” (Citation and punctuation omitted.) Id. And,

“[i]nextricably entwined with concepts of negligence and proximate cause is a notion

of foreseeability.” (Citation and punctuation omitted.) Id. at 258-259 (1). As

explained in Maia,

the well-established doctrine of intervening causes states that there can
be no proximate cause where there has intervened between the act of the
defendant and the injury to the plaintiff, an independent act or omission
of someone other than the defendant, which was not foreseeable by
defendant, was not triggered by defendant’s act, and which was
sufficient of itself to cause the injury.

(Citation and punctuation omitted.) Id. at 259 (1). See also Brown, 265 Ga. App. at

893 (1) (“[g]enerally, an independent, intervening criminal act of a third party,

without which the injury would not have occurred, will be treated as the proximate

cause of the injury superseding any negligence of the defendant, unless the

intervening criminal act is a reasonably foreseeable consequence of the defendant’s

negligent act”) (citations and punctuation omitted). Given our conclusion above on

the issue of reasonable foreseeability, the trial court also erred in denying summary

judgment to RPT on the McPhauls’ vicarious liability claims.

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Judgment reversed. Doyle, P. J., and Reese, P. J., concur.

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