Stringer v. Southeastern Stages, Inc.

Carley, Presiding Judge,

dissenting.

In my opinion, affirmance of the grant of summary judgment in favor of appellee-defendants is mandated by the controlling Supreme Court authority of Savannah, Fla. & W. R. Co. v. Boyle, 115 Ga. 836 (42 SE 242) (1902). Since, in my opinion, the majority does not successfully distinguish that decision and I am unable to do so, I must dissent.

In a case predicated upon an alleged violation of OCGA § 51-3-1, prior knowledge of the owner or occupier that dangerous conditions *227exist on his real property which subject invitees to an unreasonable risk of criminal attack is a prerequisite to recovery. Savannah College of Art & Design v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983). However, the instant case is not predicated upon an alleged violation of OCGA § 51-3-1. Appellants’ son was not killed in a criminal attack occurring on real property owned or occupied by appellees. He died as a result of a criminal attack occurring on a bus owned and operated by appellees. Accordingly, the focus is not upon appellees’ knowledge of any allegedly dangerous static condition on their real property. The focus is upon appellees’ knowledge of the violent propensity of one of their specific passengers who was in transit on a particular bus at a certain time. A carrier “is bound to use that extreme care and caution contemplated of very prudent and thoughtful persons to anticipate an injury threatened to the passenger by fellow passengers or third persons.” Grimsley v. Atlantic Coast Line R. Co., 1 Ga. App. 557 (1) (57 SE 943) (1907). However, “ ‘[k]nowledge of the passenger’s danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier’s liability in this class of cases.’ [Cit.]” Savannah, Fla. & W. R. Co. v. Boyle, supra at 839. “ ‘ “While it is unquestionably the duty of a carrier to exercise extraordinary care for the protection of passengers, the rule does not (require the carrier to take measures to protect its passengers from the intentional misconduct of third persons) until something occurs ... to put (the carrier) on notice that. . . such conduct . . . might be reasonably anticipated. . . .” ’ [Cits.]” Paschal v. Ferguson Transport, 189 Ga. App. 447, 448 (375 SE2d 901) (1988).

Construing the evidence most favorably for appellants shows the following: At the time the assailant purchased his ticket, he told the ticket agent that “there probably would be an undercover cop looking” for him and that the ticket agent was “to tell them that he hadn’t seen him.” After reminding the ticket agent not to “forget what I told you,” the assailant boarded the bus and travelled peaceably until, without warning or provocation, he drew a gun and shot and fatally wounded appellants’ son.

On this evidence, there is obviously nothing in the assailant’s physical conduct which would evince his potential for violence. He was not shown to be intoxicated and, even if he were, “[t]here is no presumption that a person under the influence of intoxicating liquors . . . will commit an assault without provocation, nor will an inference be authorized from the mere fact of intoxication that a person in such condition might be reasonably expected to so conduct himself.” Powell v. Beasley, 57 Ga. App. 231, 232-233 (194 SE 926) (1938). See also Pinnell v. Yellow Cab Co., 77 Ga. App. 73 (2) (47 SE2d 774) (1948). *228Compare Hillman v. Ga. R. & Banking Co., 126 Ga. 814 (56 SE 68) (1906) (boisterous pistol-wielding drunk); Grimsley v. Atlantic Coast Line R. Co., supra (boisterous pistol-wielding drunk).

Accordingly, resolution of the instant case should turn on whether the words attributed to the assailant would be sufficient to evince his propensity to commit violence. The literal words themselves do not suggest the assailant’s potential for unprovoked violence. He did not threaten anyone. If deemed to be true, the words merely impart notice that, at some future time, an undercover officer might be interested in the assailant’s whereabouts for some unspecified reason. However, the words do not intimate that the assailant feared imminent arrest and was presently armed or would otherwise present a danger to his co-passengers on the bus. If deemed to be false, the words merely impart notice that the assailant either was making a bad joke or was mentally dysfunctional. However, the words do not intimate that the assailant was so dangerously paranoid as to be presently armed and a potential source of danger to his co-passengers on the bus.

In Savannah, Fla. & W. R. Co. v. Boyle, supra, the carrier had knowledge that two of its passengers had actually committed the crime of stealing a ride and had been placed under arrest. On this evidence, the Supreme Court held: “While it may be that even an ordinarily prudent person would have reason to apprehend that [the two passengers] under arrest for a misdemeanor would escape if afforded a reasonable opportunity, still an extremely careful person could not reasonably apprehend that in making such an attempt they would, in order to effectuate it, make a murderous assault with a deadly weapon either upon one who made an effort to thwart this attempt or upon another who was taking no part in such effort.” Savannah, Fla. & W. R. Co. v. Boyle, supra at 841. In the instant case, appellees had even less knowledge. They had no actual knowledge that the assailant had committed any previous crime or that his freedom to travel on the bus should be restrained for any reason. They had actual knowledge only that the assailant had made some vague statements as to the reason why he wished to board the bus, which statements did not suggest that he would constitute a present danger to any of his co-passengers on the bus. “There is nothing in the [record] from which it appears that the employees in charge of the [bus], in the exercise of that high degree of care which the [bus] company owed to [appellants’ son] to protect him from injury at the hands of those who might be upon [the bus] with [their] consent or with [their] knowledge, could and should have foreseen that the [assailant] would, after having [boarded] the [bus], attempt to . . . commit a murderous [sudden and unprovoked] assault upon [his co-passengers].” Savannah, Fla. & W. R. Co. v. Boyle, supra at 841.

*229Decided December 16, 1992 Reconsiderations denied February 4, 1993 Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Charles F. Overby, Peter J. Daughtery, Jones, Boykin & Associates, John W. Jones, Noble L. Boykin, Jr., for appellants. Lorrenzo C. Merritt, Lokey & Bowden, Malcolm Smith, Mel Mobley, for appellees.

It follows that the trial court’s grant of summary judgment in favor of appellees should be affirmed. “ ‘ “While it is unquestionably the duty of a carrier to exercise extraordinary care for the protection of passengers, the rule does not apply under the circumstances of this case until something occurs to call into play the exercise of the great degree of care. It was not [shown] that there was anything to put [appellees] on notice that any [unprovoked violent] conduct. .. might be reasonably anticipated, except that the assailant [made vague nonthreatening statements]. This was insufficient [to withstand summary judgment]. There is no presumption that a person [who makes such vague non-threatening statements] will commit an. assault without provocation, nor will an inference be authorized[,] from the mere fact [that such statements were made,] that a person [making such statements] might be reasonably expected to so conduct himself. . . .” ’ [Cits.]” Pinnell v. Yellow Cab Co., supra at 75-76.

It is possible that the death of appellants’ son may not have occurred if all passengers had been subjected to a frisk of their persons or if all passengers had been required to pass through a metal detector. However, appellees are not insurers of the safety of their passengers. Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991). All that is required is the exercise of extraordinary diligence and, as I construe Savannah, Fla. & W. R. Co. v. Boyle, appellees may not be found to have breached that duty to exercise extraordinary diligence unless and until they knew or should have known of the dangerous propensity of the specific assailant who boarded the bus with appellants’ son. Accordingly, unless and until Savannah, Fla. & W. R. Co. v. Boyle, supra, is overruled, I am constrained to follow it and to dissent to the majority’s reversal of the grant of summary judgment in favor of appellees.

I am authorized to state that Chief Judge Sognier, Presiding Judge Birdsong and Judge Andrews join in this dissent.