Sturbridge Partners, Ltd. v. Walker

Hines, Justice.

Certiorari was granted to review the Court of Appeals opinion in Walker v. Sturbridge Partners, Ltd., 221 Ga. App. 36 (470 SE2d 738) (1996). The issue to be resolved is the showing that must be made by a plaintiff seeking to establish the foreseeability of a criminal attack for the purpose of premises liability.

Walker was raped and sodomized in her apartment at approximately 12:30 a.m. on May 9, 1992. She sought recovery for her injuries against the apartment owner, Sturbridge Partners, Ltd., and the operating manager, The Horn Blow Partnership, d/b/a The Horn Harlow Companies (collectively “Sturbridge”) based, inter alia, on their alleged negligence in failing to take action despite notice of three prior burglaries which occurred in March and April 1992. Sturbridge moved for summary judgment on the issue, asserting that because the evidence failed to disclose any prior rapes or other violent sex crimes, the criminal attack was not foreseeable, as a matter of law, and it therefore had no duty to act. The trial court granted Sturbridge’s motion, and the Court of Appeals reversed, holding that, for the purpose of determining foreseeability, a distinction as a matter of law between the risks posed by burglaries involving brutal sexual assaults and those that did not was unfounded. It stated that such an

analysis suggests that the landlord could lawfully safeguard its tenants from burglars who commit only thefts differently from those burglars who commit crimes against the person. . . . [PJlaintiff’s evidence ... is more than sufficient to create a triable issue as to defendants’ appreciation of the foreseeable risks posed by burglars to its tenants.

Walker v. Sturbridge Partners, Ltd., supra at 39 (1). Sturbridge appeals from the holding, and we affirm.

The general rule regarding premises liability is that a landlord does not insure tenants’ safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to “exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. A landlord’s duty to exercise ordinary care to protect tenants against third-party criminal attacks *786extends only to foreseeable criminal acts. See Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995). The difficulty arises in determining which criminal acts are foreseeable.

Sturbridge relies upon Savannah College of Art & Design v. Roe, 261 Ga. 764 (409 SE2d 848) (1991), for the proposition that a landlord’s knowledge of prior criminal acts against property cannot establish the foreseeability of a brutal sex crime as a matter of law, and, therefore, no duty arose in the instant case. Such a restrictive and inflexible approach does not square with common sense or tort law, and represents a significant departure from precedent of this Court. See Days Inns of America v. Matt, supra; Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); and Atlantic Coast Line R. Co. v. Godard, 211 Ga. 373, 376 (1) (86 SE2d 311) (1955). To the extent that Savannah College of Art & Design supports such an analysis for determining foreseeability, it is overruled.

In Lau’s Corp. v. Haskins, supra at 492 (1), this Court adopted a guideline for determining whether a proprietor had a “duty” to exercise ordinary care in protecting his or her customers against the risk posed by criminal activity. We held: “[i]f the proprietor 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.’ [Cit.]” Id. Accordingly, the incident causing the injury must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers or tenants against the risk posed by that type of activity. See Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994), aff’d, Days Inns of America v. Matt, supra.

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. See Days Inns of America v. Matt, supra; Lau’s Corp. v. Haskins, supra; Shoney’s, Inc. v. Hudson, 218 Ga. App. 171 (460 SE2d 809) (1995); and Henderson v. Kroger Co., 217 Ga. App. 252 (456 SE2d 752) (1995). 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 [landlord’s] attention to the dangerous condition which resulted in the litigated [incident].’ [Cit.]” Matt v. Days Inns of America, supra at 794-795. Further, the question “of reasonable foreseeability” of a criminal attack is generally “for a jury’s determination rather than summary adjudication by the courts.” Lay v. Munford, 235 Ga. 340, 341 (219 SE2d 416) (1975).

*787Sturbridge contends that because of the nature of the prior burglaries, that is, they occurred during the daytime when no one was home and did not involve forced entry, it was unreasonable to anticipate that a brutal sex crime would occur. We do not agree. The issue is not the foreseeability of the rape itself, but whether Sturbridge had actual knowledge of the prior burglaries and, because of that knowledge, should have reasonably anticipated the risk of personal harm to a tenant which might occur in the burglary of an occupied apartment. See Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1995); Days Inns of America v. Matt, supra; and Lau’s Corp. v. Haskins, supra.

The record demonstrated that Sturbridge had actual knowledge of two of the three prior burglaries. Although they were committed when the apartments were vacant, it was reasonable to anticipate that an unauthorized entry might occur while an apartment was occupied and personal harm to a tenant could result.1 Thus, we agree with the Court of Appeals that evidence of the prior burglaries was sufficient to give rise to a triable issue as to whether or not Sturbridge had the duty to exercise ordinary care to safeguard its tenants against the foreseeable risks posed by the prior burglaries.2

Judgment affirmed.

All the Justices concur, except Benham, C. J., Fletcher, P. J, and Carley, J., who dissent.

As provided in OCGA § 16-7-1 (a), the very nature of burglary suggests that personal injury may occur during the unauthorized entry into the dwelling house of another.

Because neither the trial court nor the Court of Appeals reached the question of whether Sturbridge failed to exercise ordinary care, we do not consider the issue.