concurring in part and dissenting in part.
Because the trial court did not err in denying the defendants’ motion for new trial in this premises liability suit, I must respectfully dissent from Divisions 1 and 3 of the majority opinion, although I concur fully in Division 2. The owner and property manager of the apartment complex where Polite was attacked contend that the trial court should have allowed the jury to consider apportioning damages against a contiguous property owner, asserting that OCGA § 51-12-33 only requires them to give timely notice of the nonparty they wish to add to the verdict form. But the defendants failed to introduce evidence that would provide a rational basis for the jury to apportion fault against this nonparty under a premises liability theory. Accordingly, I respectfully dissent to the majority opinion reversing the verdict and judgment in this case.
1. “In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack,... the jury is allowed to apportion damages among the property owner and the criminal assailant,” pursuant to OCGA § 51-12-33. Couch v. Red Roof Inns, 291 Ga. 359 (1) (729 SE2d 378) (2012). Whether the assailant’s identity is known is not important, because the assailant is undeniably part of “the full universe of tortfeasors, whether [a] part[y] or not,” which the jury is authorized to find liable for the plaintiff’s damages and against which it may apportion a damages award. Id. at 361. The issue in this case is different: what evidence is required to elevate a nonparty who is not a criminal actor to inclusion in “the full universe of tortfeasors” against which damages may be apportioned?
The defendants filed a “Notice of Negligence or Fault of Non-party’ pursuant to OCGA § 51-12-33 against three entities. In one notice they asserted that Polite was attacked on the property of a *565Chevron-branded gas station and convenience store, and believed that Chevron USA, Inc. had “ownership and/or management interests in the gas station and convenience store” believed to be doing business as Shreeji Food Mart. In the second notice the defendants claimed that Polite was attacked “on property owned and/or operated by AMA Investment, Inc.,” which operated a Chevron-branded gas station and convenience store doing business as Shreeji Food Mart, and the third notice was identical except for the nonparty name, which was Areesha Enterprises, LLC. In all three notices, the defendants contended that
the negligence of [the named nonparty’s] knowledge of and continued maintenance of a nuisance on its property were the proximate cause of [the] Plaintiff’s injuries. [The named nonparty] has failed to repair a fence located on its property. This lack of repair constitutes negligence and nuisance that is the proximate cause of Plaintiff’s injuries.
After Polite rested his case, the defendants also rested without putting up any evidence, and Polite moved for a directed verdict as to any apportionment of fault against AMA Investments, Areesha Properties, and Chevron USA on several grounds. Those grounds included the lack of evidence regarding the relationship between the convenience store and the three parties and that there was no evidence that the property owners knew about ongoing criminal activity behind the store so that the attack on Polite was foreseeable. Polite also argued that because a convenience store would not want to restrict access in the way the apartment owners wanted to restrict nonresidents’ access, the defendants needed to present evidence regarding what security measures a convenience store should employ. The defendants responded that Polite’s security expert testified that commercial property owners had a duty to protect their customers and that there had been a robbery inside that store, which was sufficient evidence to allow the jury to decide if the property owner had sufficient knowledge. Further, they argued that apportioning damages was “not the same as a claim” and they did not have to establish damages. The statute only required notice about who the defendant intended to blame, and it did not matter who actually owned the property or which entity’s name was listed in the apportionment section of the verdict, because the verdict was not binding against the nonparty.
The trial court asked, “Do you think the Legislature actually intended that? Because if that’s the case, what would keep you from theoretically naming a thousand entities?” The defendants responded, *566“Well, you could. That’s exactly right. If there were a thousand entities that you could establish and articulate were in some way responsible for[.]” The defendants only had to establish that there is some other entity that was responsible, and not who that entity actually was, they contended, and suggested that the trial court simply identify the nonparty as “Chevron” because “[t]here is a sign on the door that says Chevron.” After additional colloquy, the trial court found that the defendants failed to produce sufficient evidence related to the three nonparties and did not include them on the verdict form.
The defendants argue on appeal as they did at trial that the only requirement for adding a nonparty for apportionment purposes under OCGA § 51-12-33 is that they give timely notice that they believe the nonparty was wholly or partially at fault, because “the requirements for maintaining a claim against, and recovering from an entity do not apply.” It does not matter, according to the defendants, whether a contiguous property owner is actually identified properly, because the entity named is not subject to liability if the jury assesses fault against them. Nor do they bear the burden of proving the extent of the nonparty’s responsibility for the plaintiff’s damages, they argue, because the statute provides that the nonparty against whom fault is claimed must be considered regardless of whether the person or entity was, or could have been, named as a party to the suit. Aside from the ownership issue, the defendants also argue that there was sufficient evidence for the jury to consider whether the nonparty had adequate notice of crimes occurring on the property to be found responsible for a portion of Polite’s damages.
The trial court was correct in holding that the defendants did not produce sufficient evidence to create a jury question regarding whether damages should be apportioned against the nonparties. Property owners in premises liability cases involving criminal activity “face potential liability for an amount of damages commensurate with [their] responsibility for a plaintiff’s harm.” (Emphasis supplied.) Couch, 291 Ga. at 366 (1). Further, “it is the defendant’s burden to establish a rational basis for apportioning fault to a nonparty.” Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 272 (1) (740 SE2d 672) (2013).
[T]he fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact contributed to the alleged injury or damages. ... If it were otherwise,. . . there would be no limitation on the number of potential nonparties that *567a trial court would be required to include on the verdict form for purposes of assessing fault under OCGA § 51-12-33 (c).
(Citation and punctuation omitted.) Union Carbide Corp. v. Fields, 315 Ga. App. 554, 559-560 (1) (b) (ii) (726 SE2d 521) (2012), reversed on other grounds, Georgia-Pacific v. Fields, 293 Ga. 499 (748 SE2d 407) (2013). Accordingly, a defendant property owner who wants the jury to allocate responsibility for a plaintiff’s injury to another property owner has to present evidence sufficient to provide a rational basis for the jury to apportion damages against it. The defendants in this case did not do so.
Pretermitting whether a defendant must identify the legal owner or occupier of adjoining land for apportionment purposes, the applicable standard for adding a nonparty for apportionment purposes is that a defendant must at a minimum present evidence that the nonparty had a duty to the plaintiff, breached its duty, and caused damages. While the defendants baldly assert that “there was ample evidence that the owner/occupier of the Chevron station owed a duty, breached its duty, and was a cause of Polite’s injuries,” there was no actual admissible evidence introduced by the defendants at trial that could form a rational basis for the jury to apportion damages against “Chevron.”
Further, a landowner has a duty to prevent foreseeable crimes, and the defendants argue that there was evidence that “Chevron” was aware of criminal activity in this area because Polite’s security expert testified that a number of crimes had occurred in the previous three years at the address where the Chevron station and a food mart were located. But the expert obtained that information by reviewing 911 call logs and then asking for incident reports on calls from the address where the station was located, from the defendant apartments, and from an adjoining apartment complex. He did not obtain the information from the “Chevron” owners or occupiers, and therefore this evidence establishes nothing about what the owners or occupiers knew. Further, testimony from the defendants’ former property manager that she left messages for the property owner and kept “hoping and waiting for the owner to contact [her]” does not establish that the Chevron owners or occupiers even received her messages. Finally, while Polite’s expert admitted on cross-examination that “Chevron” had an obligation to control crime on its property, he also testified that he had no information on what kind of security program was used there.
Absent information about the contiguous landowner/occupier’s knowledge of similar crimes, the foreseeability of this crime, or the security efforts in use on that property, if any, the jury had no rational *568basis to consider whether Polite’s damages should have been apportioned against that nonparty, and the trial court did not err in declining to allow the jury to do so. McReynolds v. Krebs, 307 Ga. App. 330, 335 (3) (705 SE2d 214) (2010), aff’d, 290 Ga. 850 (725 SE2d 584) (2012) (trial court properly declined to allow jury to consider apportioning damages against nonparty after defendant presented no evidence on which apportionment of liability could be based, but “rested following the plaintiff’s case without presenting any evidence whatsoever”).
Accordingly, because the defendants failed to present evidence that would have provided the jury with a rational basis for apportioning damages against the contiguous property owner, I must respectfully dissent from Division 1 of the majority opinion.
2. As noted earlier, I fully concur with all that is said in Division 2 of the majority opinion, which concludes that the trial court did not err in its jury instructions on apportionment of fault and proximate cause.
3. The defendants also argue that the trial court erred in denying their motion for new trial on the general grounds, contending that the jury’s failure to apportion any fault to the criminals who attacked the plaintiff “is plainly both contrary to the evidence and not supported by any evidence.” They further argue that the trial court failed to exercise its discretion to act as a “thirteenth juror” as permitted by OCGA § 5-5-20.
(a) In asserting that the jury’s decision to apportion zero fault to the criminal nonparties is contrary to the evidence, the defendants are basically arguing that OCGA § 51-12-33 requires a jury to apportion at least some percentage of fault against a nonparty criminal in this kind of premises liability case. The statute itself contains no such requirement. In addressing the argument that allowing a jury to apportion fault to a nonparty criminal actor would insulate the landowner from liability, our Supreme Court observed that “property owners remain responsible for their actions and will be required to pay damages in proportion to their level of responsibility.” Couch, 291 Ga. at 366 (1).
A finding that the criminals were at fault to some unspecified degree is not mandated by the evidence. Polite introduced evidence from which a jury could find that three similar attacks had occurred in the month before Polite was shot, that the defendants failed to give residents proper notice of the attacks, that the defendants’ own employees told management that the path was dangerous, that the defendants chose to incorporate the wooden fence into their perimeter fencing instead of continuing their wrought iron fence, that they installed an opaque wooden gate in the fence, and that they invited *569use of the path by clearing it of vegetation. “[A] jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law.” (Punctuation and footnote omitted.) Bldg. Materials Wholesale v. Triad Drywall, 287 Ga. App. 772, 774 (1) (653 SE2d 115) (2007).
Additionally, “[a]n appellant cannot travel on one ground below, find the wind blowing in another direction, change tack, and head elsewhere on appeal.” Boggs v. Madison County, 240 Ga. App. 849, 852 (524 SE2d 252) (1999). The defendants made no exceptions to the charge after the trial court, while instructing the jury on how to complete the apportionment section of the verdict form, informed it that if it deemed “any of these parties or nonparties to have zero percent [fault], go ahead and write the zero instead of leaving it blank.” Having failed to interpose any objection at trial to the verdict form or the trial court’s instructions, the defendants cannot now complain that the trial court should have done something different. Lummus v. State, 274 Ga. App. 636, 637 (1) (618 SE2d 692) (2005) (“defendant cannot acquiesce in a trial court’s ruling below and then complain about that ruling on appeal”) (punctuation omitted).
(b) Further, there is no merit to the defendants’ argument that the trial court failed to exercise its discretion to act as a thirteenth juror, as authorized by OCGA § 5-5-20. “In passing upon the general grounds of a motion for new trial, this court will not disturb the trial court’s refusal to grant a new trial if there is any evidence to support the judgment.” Hopkins v. Sicro, 107 Ga. App. 691, 693 (2) (131 SE2d 243) (1963). However, if
a defendant raises a claim under OCGA §§ 5-5-20 and 5-5-21 in his motion for new trial, the law imposes upon the trial court an affirmative duty to exercise its discretion and weigh the evidence to determine whether a new trial is warranted. If the record reflects that the trial court failed to exercise its discretion and sit as the thirteenth juror, we will vacate and remand for the trial court to fulfill its affirmative statutory duty.
(Citations omitted.) Hartley v. State, 299 Ga. App. 534, 540 (3) (683 SE2d 109) (2009).
The defendants contend that the trial court only reviewed their legal errors, rather than exercising its discretion to determine whether the jury’s verdict was contrary to the evidence, and therefore its order denying their motion for a new trial should be vacated and the case remanded with direction for consideration under the proper legal *570standard. The defendants do not point to anything in the record that indicates that the trial court applied an incorrect standard of review, however.
Generally, in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the court agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.
(Citation and punctuation omitted.) Copeland v. State, 325 Ga. App. 668, 672 (3) (754 SE2d 636) (2014); see also Brown v. Service Coach Lines, 71 Ga. App. 437, 443 (1) (31 SE2d 236) (1944).
4. Finally, the trial court did not abuse its discretion in sustaining Polite’s objection to the defendants’ admission in evidence of character evidence, asserting that Polite opened the door to the introduction of this evidence when he “presented himself as a clean cut young man with a difficult upbringing.”
Former OCGA § 24-2-2 provided that “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”3 The defendants argue that Polite intentionally elected to put his character into evidence through testimony from a friend of Polite’s mother who described Polite as a role model and mentor to her teenage son, who improved his reading skills after Polite encouraged him to write down lyrics to songs he was composing. The defendants further argue that Polite
was described as a role model and mentor. That testimony opened the door to a more complete, accurate portrayal of Polite via his rap lyrics, web postings, and numerous photographs. The damages in this case are based largely on the *571impact of the injury on his daily life. The jury, however, never saw or heard evidence of Polite [’s] real daily life before the shooting.
The defendants do not state precisely what character evidence they think the trial court should have admitted, although at trial they proffered photographs. At the hearing on Polite’s motion in limine regarding this evidence, Polite says the photographs of him “looking criminal and thuggish and gang” had been placed on his MySpace page to promote his rap music and record labels but argued that no evidence existed that he was actually a gang member. In addition to being irrelevant, Polite argued that the photographs were more prejudicial than probative. The trial court granted the motion in limine.
After the friend of Polite’s mother testified, the defendants renewed their attempt to introduce evidence of “what his character was at the time” before he was shot, arguing that the witness had been “making [Polite] look like a choir boy” while the defense had pictures of him holding guns and “acting like he’s breaking into apartments,” the lyrics to his rap music were offensive, he had been in jail for DUI, and he had pled guilty to offenses that were not crimes of moral turpitude. The trial court held that the witness’s testimony about Polite helping her son was collateral to any of the main issues in the case.
“[A] trial court has discretion to exclude evidence when its probative value is outweighed by the undue sympathy, hostility, or prejudice its admission might generate with the jury.” (Citation and punctuation omitted.) Kesterson v. Jarrett, 291 Ga. 380, 387 (2) (b) (728 SE2d 557) (2012). There was no evidence that Polite was actually in a gang. In fact, in support of his motion in limine Polite introduced an affidavit from a detective who was the supervisor of the DeKalb County Gang Unit. The detective interviewed Polite and reviewed the police file on the assault, deposition testimony from two security guards, Polite, and Polite’s friend, photographs of the crime scene, and individual and group photographs from Polite’s MySpace page, and he concluded that Polite was not affiliated with any gang, his attack was not gang-related, the photographs of Polite do not indicate he is in a gang, and that it was unlikely that a gang member would attack Polite based on a mistaken belief he was in a gang. The detective explained why he reached all of these conclusions, and stated that “any suggestion that Nathan Polite is affiliated with a gang appears to be a mistake in confusing a music or rap group with a gang.” The defendants have not cited to any evidence that Polite had committed gun crimes or broken into any apartments, so the trial *572court was entitled to find that photographs of him “acting” in support of his rap persona would be particularly prejudicial. Therefore, the trial court did not abuse its discretion in finding the prejudicial effect of the character evidence the defendants sought to introduce outweighed its probative value.
Decided March 26, 2014 Hawkins, Parnell, Thackston & Young, Warner S. Fox, Matthew G. McLaughlin, for appellants. D. Richard Jones III, Julie A. Dlott, Nelson O. Tyrone, Summer-ville Moore, J. Darren Summerville, S. Leighton Moore III, for appellee.For these reasons, I would affirm the judgment entered on the jury verdict in this case, and therefore I respectfully concur in part and dissent in part to the majority opinion.
Former OCGA § 24-2-2 “was superseded by OCGA § 24-4-404.” Johnson v. State, 293 Ga. 641, 644 (6), n. 3 (748 SE2d 896) (2013) (citation omitted), but because this case was triedbefore January 1, 2013, our new Evidence Code did not apply. See Ga. L. 2011, pp. 99, 214, § 101.