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Martin v. Six Flags Over Georgia II, L.P.

Supreme Court of Georgia

June 5, 2017

MARTIN
v.
SIX FLAGS OVER GEORGIA II, L.P., et al. SIX FLAGS OVER GEORGIA II, L.P., et al.
v.
MARTIN.

          GRANT, Justice.

         Joshua Martin sustained life-changing injuries in a brutal attack at a bus stop outside the Six Flags Over Georgia amusement park in July 2007. A jury determined that Six Flags[1] was liable for those injuries, along with the four named individual defendants who perpetrated the attack; as set out by the jury on its verdict form, the trial court apportioned the jury's $35 million verdict[2]between the parties, assigning 92% against Six Flags and 2% each against the four assailants. On cross-appeals by Six Flags and Martin, a majority of the twelve-member Court of Appeals found no error in the jury's determination regarding Six Flags' liability but concluded that the trial court had erred in its pretrial rulings regarding apportionment of fault, necessitating a full retrial. Six Flags Over Georgia II, L.P. v. Martin, 335 Ga.App. 350 (780 S.E.2d 796) (2015). We granted certiorari to determine (1) whether Six Flags could properly be held liable for the injuries inflicted in this attack; and (2) assuming liability was proper, whether the trial court's apportionment error does indeed require a full retrial.

         For the first question, regarding the contours of premises liability, we agree that the jury was authorized to find Six Flags liable for the breach of its duty to exercise ordinary care in keeping its premises safe for invitees, although for a different reason than that articulated by the Court of Appeals. Because the attack that caused Martin's injuries began while both he and his assailants were on Six Flags property, Six Flags' liability is not extinguished simply because Martin stepped outside the property's boundaries while attempting to distance himself from his attackers.

         As to the second question, we conclude that the trial court's apportionment error does not require a full retrial, but rather requires retrial only for the apportionment of damages. Accordingly, we reverse the judgment of the Court of Appeals insofar as it held that a full retrial is required, and we remand for further proceedings consistent with this opinion.

         I.

         Construing the evidence to support the jury's verdict, see Citizens & Southern Nat. Bank, 254 Ga. 131, 136 (1) (327 S.E.2d 192) (1985), the record establishes the following facts. On July 3, 2007, Martin went to Six Flags for the day with his brother, Gerard Martin, and a friend, Devon Carter. As the park's closing time approached, the trio exited the park, walked to a nearby hotel to use the bathroom, and returned to Six Flags property in front of the park entrance to await the arrival of a Cobb County Transit (CCT) bus. The three sat on a guardrail in an area adjacent to the park's main entrance along Six Flags Parkway, the roadway leading into the park. The bus stop, which was visible from the guardrail, was situated just around the corner of the intersection of Six Flags Parkway and another public road, some 200 or so feet from the Six Flags property line.

         During the course of the day and early evening, a throng of young men were roaming the park. Throughout the day their numbers ranged from 15 to 40. The young men in the group, which included several off-duty Six Flags employees, were dressed similarly, most in some combination of white or black T-shirts, jeans, and bandanas. The men were observed running through the park, yelling obscenities, and otherwise causing commotion. In the early evening, park patrons John Tapp and Eric Queen, who were visiting the park with their families, were accosted by the group after one of its members nearly knocked over Queen's young son. Tapp testified that, after he diverted the near-collision and admonished the man who was running, approximately 15 men surrounded him and Queen, "fixing to beat the sh*t out of us." The confrontation lasted five to ten minutes, until park security appeared. As security approached and the group began to back off, they made "finger gun" gestures and admonished Tapp and Queen to "watch your back, " "we'll get you in the parking lot." Tapp and Queen reported to the security officer what had happened, including the parking lot threat. The officers confronted the assailants they could locate, reprimanded them, and released them back into the park. A Six Flags security officer testified at trial that this response was contrary to Six Flags' policy, under which the assailants should have been ejected from the park.

         Shortly before closing time, as the Tapp and Queen families prepared to exit through the park's main gates, they noticed the same group of men, whose numbers had grown to approximately 40. Surveillance video footage filmed at that time showed a group of similarly-dressed men running to the front gate in what one witness described as a "frenzy." The group exited the park, followed by security guards, who then stood outside watching. Once the guards reentered the park, the families, believing the group had left, exited the gates towards the parking lot, only to find the same group congregated on the sidewalk, outside the gates but still on Six Flags property. Despite their efforts to be inconspicuous, the families were spotted by the group, who began following the families and yelling at them. Alarmed, the families hurried to their cars; Tapp heard one man say "drop the hammer, " which Tapp believed was a reference to a gun. The families reached their cars and were able to depart without further incident.

         The group of young men then made their way back to the area outside the park's main gate where Martin and his companions were sitting. Two members of the group testified that others within the group were actively planning a fight. One stated that when he met up with the group he "found out that they were going to fight people at the bus stop"; another said that he heard the group planning for the beating and that the group "knew they needed to fight somebody." Aware of the group's presence, and overhearing talk to the effect that "some guy's going to get messed up, " Martin and his companions got up from the rail to move away, proceeding towards the bus stop. The group followed the trio to the bus stop, where, without any provocation or delay, defendant Franklin approached Martin and began beating him with brass knuckles. Others among the group joined in on the attack, with one witness estimating that nine people participated in Martin's beating. This same witness testified that the attack began only five minutes after the group concluded their pursuit of the Tapp and Queen families; Franklin, similarly, testified that "it happened so fast." Carter and Martin's brother Gerard were also victims in the attack. The beating and stomping inflicted on Martin rendered him comatose for seven days, and resulted in debilitating permanent brain damage and other injuries.

         The ensuing police investigation revealed that the assailants were affiliated with a gang-like group called the "YGL, " and other evidence established that the park was routinely the site of gang congregation and activity. Multiple witnesses testified to the presence of gang members at the park, both as patrons and employees; one witness, who was himself a Six Flags employee, testified that the "majority" of Six Flags' park employees were affiliated with one gang or another. Evidence of gang "tags" and similar graffiti in the male employees' locker room, and the testimony of a Cobb County police officer who worked off-duty as a park security officer, indicated that Six Flags' management was-or should have been-aware that many of its employees were gang members. A Six Flags security officer testified that, during the park's daily security briefings, gang-related issues were reported, on average, at least once a week. Following the attack on Martin, one Six Flags employee was reprimanded by her superiors after reporting to the media that gang members frequented the park, often bullying others.

         Nearly one year to the day prior to the attack on Martin, Six Flags had been the site of a gang-related drive-by shooting. According to the Cobb County police officer who investigated the incident, a fight involving gang members had erupted in line at one of the park's rides, and the fight continued as the participants left the park. Approximately 20 minutes after the fight began, the intended target of the shooting was standing at a bus stop located within Six Flags' west parking lot and was approached by a car whose passenger, a member of the "Southside Mafia" gang, called out, referring to the earlier incident. The passenger then fired a pistol, missing his target but hitting three Six Flags employees who were standing nearby. Remarkably, despite their injuries, none of these employees were willing to make a statement to police. The investigating officer testified that, a few days after the incident, a Six Flags official contacted him seeking assurances that the police would "not release any information that would lead the public to believe that Six Flags Over Georgia was anything but a safe, family atmosphere." This officer further testified that he had refused to make any such commitment, and that he had told this official that he would not take his own family to Six Flags, "[b]ecause of the numerous incidents that I've responded to there, the criminal gang activity that goes on there." According to this witness, 18 to 20 percent of the Cobb County Police Department's call volume per day comes from within a two-mile radius of Six Flags.

         The Cobb County police officer responsible for coordinating off-duty police working at Six Flags testified that he had advised the park's president and security manager on several occasions that the park needed a police presence at all times during operating hours, but had been told the park's budget could not accommodate that need. A Six Flags security officer similarly testified that the park's security department lacked adequate resources; that its security equipment and technology were outdated, and in some cases inoperable; and that management devoted more resources to "loss prevention"-avoiding the loss of money and goods-than to the physical safety and security of its patrons and employees. This same officer, who was on duty the night Martin was attacked, opined that, had Six Flags followed its protocol in response to the earlier incident with the Tapp and Queen families, the attack on Martin likely would not have occurred.

         II.

         The starting point for our inquiry is the nature of the duty Six Flags owed to Martin, its patron. The duty owed by a landowner to its invitee is set out in our Code:

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

OCGA § 51-3-1.[3]

          With regard to potential criminal attacks by third parties, the landowner is "not the insurer of the invitee's safety, " but nonetheless is required "to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge." Lau's Corp., Inc. v. Haskins, 261 Ga. 491, 492 (1) (405 S.E.2d 474) (1991). If there is reason to anticipate some criminal conduct, the landowner must exercise ordinary care to protect its invitees from injuries caused by such conduct, but landowners need not guard against imagined dangers. Id. In other words, the landowner's duty "extends only to foreseeable criminal acts." Sturbridge Partners, Inc., v. Walker, 267 Ga. 785, 786 (482 S.E.2d 339) (1997) (emphasis in original).

         In the ordinary case involving landowner liability for third party criminal acts, the criminal act has been committed and completed within the physical boundaries of the landowner's premises. See, e.g., Days Inns of America, Inc. v. Matt, 265 Ga. 235 (454 S.E.2d 507) (1995) (affirming denial of hotel's motion for summary judgment where hotel guest was attacked by assailant on hotel premises); TGM Ashley Lakes, Inc. v. Jennings, 264 Ga.App. 456 (2) (590 S.E.2d 807) (2003) (affirming jury verdict against apartment complex owner for wrongful death of tenant killed in her apartment); Piggly Wiggly v. Snowden, 219 Ga.App. 148, 149 (464 S.E.2d 220) (1995) (affirming jury verdict for store invitee for injuries sustained in criminal attack in store parking lot). Here, however, the facts developed at trial show that the physical attack on Martin was perpetrated outside the boundaries of Six Flags' property.[4] But the evidence also reflects that Martin's injuries were the culmination of a continuous string of events that were planned on Six Flags property, were executed at least in part on Six Flags property, and were the result of a failure by Six Flags to "exercise ordinary care to protect [its] invitee from unreasonable risks" that Six Flags understood, and even tried to obscure from its patrons. See Lau's Corp., 261 Ga. at 492.

         Under those circumstances, the question put to this Court is whether Six Flags can evade liability for the foreseeable consequence of its failure to exercise ordinary care in keeping its premises safe, simply because its patron had moved off those premises in an attempt to distance himself from his attackers. The answer to that question is no. As we explain below, while Six Flags did not exercise the level of control and dominion required to assume liability for the bus stop as part of the park's "approaches, " the victim's stepping over the property line does not and cannot ...


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