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GEORGIA COURT OF APPEALS RULES PLAINTIFF’S EVIDENCE INSUFFICIENT TO PROVE EITHER TENANT GROCERY STORE OR LANDLORD IS LIABLE FOR CUSTOMER ASSAULT IN PARKING LOT

Posted by H. Lee Pruett

Applying well-established law and rules of evidence, the Georgia Court of Appeals recently affirmed summary judgment for a tenant and the landlord in a premises liability case in which the plaintiff was assaulted and robbed in a shopping center parking lot. In Drayton v. Kroger Co., Case No. A08A1935 (Ga. Ct. App., Mar. 2, 2009), the plaintiff bought groceries at the defendant Kroger in a shopping center in Fayetteville, Georgia, and was attacked by a person unconnected to either defendant as she was putting the groceries away in the trunk of her car. The trial court granted summary judgment to both defendants.

The court found that Kroger breached no duty to the plaintiff because the assault did not occur on the premises or approaches to the store. The court also found that the plaintiff had failed to show the attack was foreseeable, so the shopping center had breached no duty owed to the plaintiff.

The Georgia Court of Appeals affirmed summary judgment for the defendants. The Court agreed that the “approach” to Kroger included the sidewalk immediately in front of, and adjacent to, the grocery store, but did not include the parking lot which was owned and maintained by the landlord.

The Court ruled further that the plaintiff had failed to produce evidence that the attack was reasonably foreseeable by either defendant. Courts can consider evidence of prior criminal activity on or near the property if the prior crime is “substantially similar” to the crime at issue. The prior criminal activity must be such that it would give the defendant notice that it needs to take precautions to protect its invitees from the risk of harm.

In this case, the Court held that the plaintiff’s evidence of prior crime was insufficient to give the defendants notice of a risk of violent crime in the parking lot. The plaintiff presented evidence of a prior armed robbery inside the grocery store, but the Court noted that the crime did not occur in the parking lot and did not involve a Kroger customer. Evidence of numerous nonviolent crimes such as shoplifting and distribution of obscene materials did not put the defendants on notice of a risk of assault in the parking lot.

The Court refused to consider a document which showed numerous calls from the property for police assistance because the document was uncertified and unauthenticated. Finally, the plaintiff’s evidence of another assault in the parking lot was of no avail because this crime occurred after the incident at issue.