Bayshore Co. v. Pruitt

Carley, Judge.

In February of 1983, appellee-plaintiff was a tenant in a second-story apartment located in a large complex which was either owned or managed by the appellant-defendants. Early in the morning hours, an intruder was able to reach appellee’s balcony by first stepping onto an air conditioner unit on the ground and then using a gutter drain. A subsequent police investigation revealed that the intruder, after reaching the balcony, apparently tried to enter the apartment next to appellee’s. However, the sliding glass door to that apartment was equipped with a security device commonly called a “charley bar” and the intruder could not gain entry. Appellee’s sliding glass door was not equipped with a charley bar and the intruder was able to pry the door open and enter appellee’s apartment. Appellee was attacked by the intruder, who was subsequently apprehended and pled guilty to the charges that were brought against him.

Appellee filed the instant personal injury action, alleging appellants’ negligence in failing to provide a secured sliding glass door to her apartment. Appellants answered and subsequently moved for summary judgment, asserting that the intervening criminal act of the intruder insulated them from liability to appellee. In opposition to appellants’ motion, appellee proffered evidence of some 17 other criminal incidents that had occurred in the apartment complex during the three years prior to the attack upon her. Appellants moved to strike all evidence of these 17 other incidents, contending that they were not sufficiently similar to the crime against appellee and should not be considered in connection with the motion for summary judgment. The trial court denied appellants’ motion to strike appellee’s evidence of the previous crimes and then denied their motion for summary judgment. Both orders were, however, certified for immediate review. Appellants’ petition to this court for interlocutory appeal was granted and the instant appeal results.

1. “ ‘Knowledge by the owner or “occupier” or his employee of the dangerous condition created by a third person is a prerequisite to recovery under [OCGA § 51-3-1 (Code Ann. § 105-401)]. [Cits.]’ [Cit.] .... ‘Where evidence of a prior similar accident tends to show condition and knowledge of that condition, the evidence is admissible. [Cits.] All that is required is that the prior accident be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated accident. [Cit.]’ [Cit.]” (Emphasis in original.) McCoy v. Gay, 165 Ga. App. 590, 591-592 (302 SE2d 130) (1983).

The alleged specific dangerous condition in the instant case is a sliding glass door without sufficient security devices to deter criminal entry. Accordingly, the predicate for appellants’ liability for this spe*680cific dangerous condition is their superior knowledge thereof. Considering the posture of the instant case, we need not engage in an esoteric discussion of exactly how much similarity must exist between a prior and subsequent incident in order for the former to qualify as admissible evidence of a landowner’s prior knowledge in a suit based upon the latter. However, it is clear that at least some of the 17 prior incidents proffered by appellee apparently involved forced entry through a sliding glass door. In our opinion, this is clearly sufficient similarity to the incident involving appellee to warrant consideration of those prior instances as evidence of appellants’ knowledge of the specific dangerous condition alleged in the instant case. Admissibility of these incidents is not precluded solely because they all occurred on ground level apartments and/or involved crimes against property. “ ‘[I]n order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if in ordinary prudence he might have foreseen some injury would result from his act or omission and that consequences of a generally injurious nature might result’ .... [Cits.]” (Emphasis in original.) Hosp. Auth. of Hall County v. Adams, 110 Ga. App. 848, 850 (4) (140 SE2d 139) (1964).

2. Appellants filed no motion in limine in anticipation of trial. They enumerate as error only the denials of their motion for summary judgment and of their general motion to strike made in connection therewith. For purposes of resolving the issues raised by these enumerations, we need only determine whether any portion of appellee’s evidence showed that a genuine issue of material fact remained for jury resolution. We have found that at least several of the prior incidents of criminal activity were clearly admissible and probative evidence of appellants’ prior knowledge. It necessarily follows that the trial court did not err in denying either the general motion to strike or the motion for summary judgment and we so hold without further discussion of the issue of the admissibility of the remaining incidents. Since the trial court’s order merely denied appellants’ general motion to strike without distinguishing between or among the 17 incidents at issue, this court will simply affirm that order in its entirety because it is clear that not every one of the 17 incidents was inadmissible. “[I]t is well settled that ‘where evidence is objected to as a whole, some of which is admissible and some not, it is not error to overrule a motion to exclude the evidence as a whole.’ [Cit.] . . . ‘The evidence was objected to as a whole; and even if any portion of it was objectionable and the other was not, the exception to the admissibility of the evidence as a whole is without merit. [Cits.]’ ” Jackson v. Troup County, 70 Ga. App. 58, 60 (27 SE2d 343) (1943). All specific final rulings as to whether each individual instance of prior criminal activity will be admissible at the trial of this case should be deferred until that time. *681See Gunthorpe v. Daniels, 150 Ga. App. 113, 114 (257 SE2d 199) (1979).

Judgments affirmed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., and Benham, J., concur. Pope and Beasley, JJ., concur specially. Sognier, J., concurs in the judgment only. Deen, P. J., dissents.