concurring in part and dissenting in part.
In Case No. A95A2199,1 respectfully dissent from Division 1 because Walker’s evidence of criminal activity or prior substantially similar crime is insufficient to place Sturbridge on notice of an alleged crime problem. Compare Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994) (internal security audit detailing deficiencies, substantial amount of crime in the adjacent area and two robberies by force in the same parking lot where Matt was robbed provided notice to Days Inn). In Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995), the Supreme Court determined that a prior robbery by force which occurred without a weapon in the same parking lot was substantially similar to the armed robbery at issue, so as to create a triable issue. Matt, 265 Ga. at 236. Thus, the court retained the “substantially similar” analysis implicit in Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991).
In this case, the majority’s reasoning effectively overrules Savannah College, supra, where the Supreme Court determined that petty thefts inside the dormitory and an interrupted burglary were not substantially similar to the sexual assaults at issue. By glossing over the key factual distinctions between Walker’s situation and these two Supreme Court cases, the majority has opted to create new law out of whole cloth. In Days Inns v. Matt, the Supreme Court made clear that a proprietor’s superior knowledge was crucial to foreseeability.
In this case, Walker has not offered any evidence that Sturbridge knew about the alleged burglaries. I cannot accept Walker’s leap in logic that a few daytime burglaries occurring in the prior 18 months, all of which happened when the tenant was not at home, placed Sturbridge on notice of a crime problem. Stealing a credit card in the daytime, when its owner is away, is hardly analogous to entering at night when the tenant is home and raping her. Nor can I agree with the majority’s flawed analysis that the commission of one daytime burglary is sufficient to make the rape of Walker reasonably foresee*43able and to create a triable issue as to whether Sturbridge had a duty under OCGA § 51-3-1 to exercise ordinary care to guard its tenants against the risks of similar criminal activity. See Savannah College, 261 Ga. at 765 (2).
Decided March 15, 1996 Reconsiderations denied March 29, 1996 Simmons, "Warren, Szczecko & McFee, Joseph Szczecko, for appellant. Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellees. Dennis, Curry, Porter & Gray, R. Clay Porter, Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Christopher D. Pixley, amici curiae.In my view, Walker failed to satisfy her evidentiary burden of showing that Sturbridge had knowledge of an unreasonable risk to her safety because she offered: 1) no evidence of any nighttime crimes of any kind whatsoever, and 2) no evidence of a prior documented sexual assault or similar crime occurring inside any apartment or anywhere else on Sturbridge’s premises.
By holding the landlord liable on Walker’s sparse evidence of any prior criminal activity, the majority makes property owners and property management companies the insurers of their tenants’ safety. I cannot conceive of what steps Sturbridge could reasonably have undertaken to protect Walker inside her own apartment from her intoxicated neighbor who had been locked out by his wife following a domestic dispute.1
I am authorized to state that Presiding Judge Birdsong joins in this opinion.After the neighbor raped Walker, police discovered that he had 16 prior arrests in Florida, including burglary, battery, trespassing, prowling, and shoplifting. He subsequently became the prime suspect for at least one of the Sturbridge apartment burglaries.