Matt v. Days Inns of America, Inc.

Andrews, Judge,

dissenting.

The trial judge correctly granted summary judgment in favor of *797Days Inns.

The gravamen of Matt’s suit for damages is not that someone attempted to rob him in the Days Inn parking lot but that during the attempt he was shot. Under Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (409 SE2d 848) (1991), liability for damages resulting from the shooting depends on whether Days Inn knew or should have known that conditions on its premises subjected Matt to an unreasonable risk of being shot. The requisite knowledge “may be demonstrated by evidence of the occurrence of prior substantially similar incidents.” Id. at 765. Accordingly, in the absence of any evidence in this case that Days Inn otherwise knew about the present incident, in order to prove that Days Inn had the requisite knowledge, the evidence must show the occurrence of prior substantially similar incidents on the premises. Id.; Woods v. Kim, 207 Ga. App. 910 (429 SE2d 262) (1993).

The record in this case shows that, prior to the present shooting, there had been two previous unarmed robberies and some unspecified crimes against property on the Days Inn premises. Conceding that there were no prior shootings or even armed robberies on the premises, the majority, nevertheless, concludes that the present attempted armed robbery and shooting was “substantially similar” to the prior unarmed robberies. Instead of focusing on the obvious dissimilarities between the prior unarmed robberies and the present shooting, the majority analyzes Savannah College of Art’s “substantially similar” requirement by focusing instead on “whether the prior crimes should have put an ordinarily prudent person on notice that the hotel’s guests were facing increased risks,” majority, p. 794, and by relying on a pre-Savannah College of Art case for the proposition that “ ‘[a]ll that is required is that the prior (incident) be sufficient to attract the (hotel’s) attention to the dangerous condition which resulted in the litigated (incident).’ ” Majority, p. 794. The majority concludes that “the record of criminal activity in the parking lots of nearby hotels, including serious crimes against persons, when coupled with the record of criminal activity in its own parking lot (a crime about once every two weeks) was sufficient to create a genuine issue of material fact on whether Days Inns was put on notice that criminal conduct against its guests was foreseeable.” Majority, p. 795.

The “substantially similar” test set forth in Savannah College of Art involves a straightforward, direct comparison of any prior crimes on the premises to the present criminal incident. In establishing a clearly stated (if not always easily applied) limit to liability, Savannah College of Art attempts to lend at least some degree of predictability to the duty of a premises owner to protect invitees from the intervening criminal acts of third persons. The majority has expanded the limits of potential liability under the Savannah College of Art *798test by finding “substantial similarity,” not by a direct comparison of the prior crimes on the premises to the present incident, but by a sort of totality of the circumstances test stated in terms of whether the prior unarmed robberies and other crimes at the Days Inn, located in a “high crime” area where armed robberies had occurred at other businesses, were sufficient to show that Days Inn knew or should have known of an unreasonable risk that Matt might be shot in an attempted armed robbery.

The focus should be on a direct comparison of any previous criminal acts on the premises to the present criminal incident. Savannah College of Art makes absolutely clear that a premises owner’s knowledge that his business is located in a “high crime” area, where crimes have been committed at other locations, does not establish a duty to protect invitees from similar crimes which might be committed on the owner’s premises. The fact that numerous crimes similar to the present criminal attack may have been committed at other locations in the area is irrelevant if there is no evidence of prior substantially similar crimes on the Days Inn premises. Savannah College of Art, supra at 765-766, n. 2. Under Savannah College of Art, if the prior crimes on the Days Inn premises were not “substantially similar” to the present criminal incident, Days Inn is presumed not to have the requisite knowledge and there would be no corresponding duty to protect Matt from the attack and no liability for his injuries. Directly compared, the two unarmed robberies and other crimes against property, which previously occurred on the Days Inn premises, were not “substantially similar” to the present shooting.

This test should be strictly applied as a necessary limit to a premises owner’s duty to protect invitees from the intervening criminal acts of third persons. Unless this duty is strictly defined and limited, business owners will be burdened with the uncertain duty of preventing criminal activity against their patrons, which government and law enforcement have been unable to prevent. A proprietor is not the insurer of his invitees’ safety and, despite the dangerous area in which his business may be located, it is not the proprietor’s duty to provide to invitees what amounts to police protection from violent crime in the area.

As to the claim that security was inadequate, knowledge of a dangerous condition giving rise to the present shooting “would be necessary, in order to show the existence of even an initial duty on the part of [Days Inn] to provide preventive security measures.” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 877 (392 SE2d 535) (1990). Since there were no prior “substantially similar” attacks on the premises, there was no such knowledge and no duty to provide security adequate to protect against this kind of attack. Woods, supra at 911. Additionally, “[t]here was no evidence that any security ef*799forts undertaken by [Days Inn] were otherwise below a reasonable standard of care, made the situation worse by increasing the danger, misled [Matt] into the belief that the danger had been removed, or deprived [Matt] of the possibility of help from other sources.” Id. at 911; Lau’s Corp. v. Haskins, 261 Ga. 491, 494-495 (405 SE2d 474) (1991).

Accordingly, Days Inns was entitled to summary judgment in its favor.

I am authorized to state that Judge Johnson joins in this dissent.