Carlock v. Kmart Corp.

BIRDSONG, Presiding Judge,

concurring in part and dissenting in part.

Although I concur fully with Divisions 1 and 3 of the majority opinion, I cannot agree that the trial court erred by granting summary judgment to Kmart on Carlock’s claim for punitive damages. Accordingly, I must dissent to Division 2 of the majority opinion.

Under our punitive damages law, punitive damages could only be awarded in this case if Carlock can prove, by clear and convincing evidence, that Kmart’s actions showed wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to the consequences. See OCGA § 51-12-5.1 (b); Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (365 SE2d 827). Further, negligence alone, even gross negligence, will not support a punitive damage award. Assoc. Health Systems v. Jones, 185 Ga. App. 798, 802 (366 SE2d 147). Something more than the commission of a tort is always required. “ ‘ “There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton.” ’ ” Cullen v. Novak, 201 Ga. App. 459, 460 (411 SE2d 331), citing Colonial Pipeline, supra at 121-122. Further, “conscious indifference to consequences relates to an intentional disregard of the rights of another, knowingly, or wilfully disregarding such rights.” (Punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860 (1) (389 SE2d 355). There must be evidence of culpable conduct to support the award of punitive damages. Colonial Pipeline, supra; Troutman v. *363B. C. B. Co., 209 Ga. App. 166, 168 (433 SE2d 73).

In this appeal Carlock and the majority rely upon Kmart’s knowledge of certain criminal activity in the parking lot (an armed robbery in August 1992, and purse snatchings in February 1991; December 1992; and September 1993) and Kmart’s failure to provide security patrols for Cub Foods’ customers after Kmart’s closing time to create a jury issue on the presumption of a conscious indifference to consequences. Even though I agree that this evidence may be sufficient to create a jury issue on whether Kmart is liable for damages arising from Mrs. Carlock’s death, I cannot agree that this evidence is sufficient to constitute clear and convincing evidence of Kmart’s “entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).

There is no evidence showing that Kmart had knowledge that its failure to provide security patrols after its store closed made persons in the parking lot subject to attacks by armed robbers yet refused to do anything about it. There also is no evidence that Cub Foods or anyone else ever asked Kmart to provide increased security after Kmart’s closing and that Kmart refused.

More significantly, the evidence shows that the crimes Carlock and the majority rely upon did not occur after the Kmart security patrol ceased to operate for the night. Two of the crimes occurred before Kmart started providing security in September 1992: The affidavit of the first victim states only that her purse was stolen on February 11, 1991, and does not provide a time, and the affidavit of another victim states that about 9:45 p.m., August 24, 1992, she was the victim of an armed robbery. Although the other two crimes occurred after Kmart started providing a security patrol, the evidence shows that these purse snatchings occurred around 8:00 p.m. on December 4, 1992, and around noon on September 9, 1993. As these crimes occurred before the security patrol quit for the night, they are not events from which it can be inferred that a security patrol was needed after Kmart closed.

Consequently, these events are not sufficient to show that the security patrol provided by Kmart was inadequate and that Kmart wantonly and consciously refused to provide additional or increased security. Thus, there is no evidence, much less clear and convincing evidence, sufficient to create a jury issue on whether Kmart was guilty of any conduct which would establish the entire want of care or indifference to consequences that would authorize the imposition of punitive damages. Bradford v. Xerox Corp., 216 Ga. App. 83, 84 (453 SE2d 98); Troutman v. B. C. B. Co., supra at 168. Accordingly, I cannot agree that the trial court erred by granting summary judgment to Kmart on the issue of punitive damages.

I am authorized to state that Chief Judge Andrews and Judge *364Blackburn join in this opinion.

Decided July 15, 1997 Lawson, Davis & Pickren, G. Thomas Davis, Paul R. Jordan, for appellants. Drew, Eckl & Farnham, George R. Moody, Francis E. Wiggers, Jr., Mary B. Galardi, for appellees.