ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Ya Van was stabbed repeatedly in the neck by Chhay Hour, her
daughter's estranged husband, who then also stabbed and
killed Van's daughter, his estranged wife. Van's
other daughter, Siv Cheng Kong, as administratrix of the
murder victim's estate and guardian of her children, sued
Van, alleging that Van was negligent when she opened the door
and allowed Hour into her home. Van filed a motion for
summary judgment, which the trial court denied. Because we
conclude that this case represents an obvious example of a
property owner who could not foresee the violent criminal
actions of a third-party, we reverse.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. We review a grant or denial of summary
judgment de novo and construe the evidence in the light most
favorable to the nonmovant.
(Citation and punctuation omitted.) Simmons v.
Prince, 343 Ga.App. 175 (806 S.E.2d 627) (2017).
construed, the evidence shows that in August 2014, the murder
victim and her five children were staying with Van in
Van's house so that Van could help care for the children.
Hour was the father of one of the victim's children. On
the afternoon in question, Hour knocked on Van's door,
and Van answered. Van informed Hour that his daughter was at
school, but he nevertheless requested to speak to the victim.
Van allowed Hour to enter the house for that purpose. Shortly
thereafter, Hour slit Van's throat and repeatedly stabbed
her in the neck and then fatally stabbed the victim.
acting as administratrix of the victim's estate and as
guardian of her children, then filed the instant lawsuit
against Van, alleging that Van was negligent in failing to
keep her home safe "from known dangers and dangerous
conditions on the property." Van filed a motion for
summary judgment, arguing in part that the stabbings were
unforeseeable and that she breached no duty to the victim by
opening the door for Hour. The trial court denied Van's
motion after concluding that material questions of fact
remain as to whether "Van's failure to recognize the
danger . . . Hour posed was willful or wonton." We
granted Van's application for interlocutory appeal to
review the trial court's order.
trial court held, and the uncontroverted evidence shows, the
victim was a licensee in Van's home at the time of the
crime, rendering Van liable only for "willful or wanton
injury." See OCGA § 51-3-2 (a), (b); Trulove v.
Jones, 271 Ga.App. 681 (1) (610 S.E.2d 649) (2005)
(defining "wanton conduct" as "that which is
so reckless or so charged with indifference to the
consequences as to be the equivalent in spirit to actual
intent to do harm or inflict injury") (citation and
punctuation omitted). That designation, however, is largely
irrelevant when it comes to Van's liability for the
criminal acts of third-parties, because "it is usually
wilful or wanton not to exercise ordinary care to prevent
injuring a person who is actually known to be, or may
reasonably be expected to be, within the range of a dangerous
act being done." (Citation and punctuation omitted.)
Rigdon v. Kappa Alpha Fraternity, 256 Ga.App. 499,
501 (1) (568 S.E.2d 790) (2002).
end, a property owner, even if negligent, is generally
insulated from liability when an injury is caused by an
intervening illegal act. See Aldridge v. Tillman,
237 Ga.App. 600, 603 (2) (516 S.E.2d 303) (1999) ("[A]n
intervening criminal act of a third party, without which the
injury would not have occurred, will be treated as the
proximate cause of the injury thus breaking the causal
connection between the defendants' negligence and the
injury.") (citation and punctuation omitted).
Nevertheless, a property owner who has reason to anticipate
criminal acts "has the duty to exercise ordinary care to
guard against injury caused by dangerous characters."
(Citation and punctuation omitted.) Id. "This
duty extend[s] only to those criminal acts that [are]
foreseeable." (Citation omitted.) McDaniel v.
Lawless, 257 Ga.App. 187, 189 (570 S.E.2d 631) (2002);
see Aldridge, 237 Ga.App. at 603 (1) ("[A]
danger must be known and foreseen by the property owner
before a duty to protect exists.").
follows that Van had a duty to exercise ordinary care to
guard the victim against the injury caused by Hour only if
she had reason to anticipate his criminal acts. See
McDaniel, 257 Ga.App. 188-189; Aldridge,
237 Ga.App. at 603 (1). To establish foreseeability, any
prior event relied upon "must be substantially similar,
but not identical" to the act that resulted in the
victim's injury, or in this case, death. (Citation and
punctuation omitted.) McDaniel, 257 Ga.App. at 189.
Specifically, it must "demonstrate [Van's] knowledge
that [Hour's] dangerous propensities subjected [the
victim] to unreasonable risk of criminal attack so that [Van]
had reasonable grounds to apprehend that the present criminal
act was foreseeable." (Citation and punctuation
record in this case is devoid of any evidence from which to
conclude that Van had reason to anticipate Hour's violent
conduct. There is no evidence that Hour had a criminal
record, or that he had previously committed a crime of any
kind. There is no evidence that Hour had violent
propensities, or that Van knew of Hour committing prior acts
of violence against the victim or any other
person. There is no evidence that Hour previously
misused a knife, or mishandled a weapon of any kind. Finally,
there is no evidence that any crime had previously been
committed at Van's residence. Indeed, appellee Kong and
the victim's children who were deposed and on behalf of
whom the suit was filed each admitted that there was no reason
for Van to anticipate that Hour would have a knife or commit
any act of physical violence on the day of the crime.
sole evidence upon which Kong relies in support of her
negligence claim is that in the years before the killing,
Hour and the victim had engaged in verbal arguments regarding
the custody of their daughter; Hour had on one prior occasion
called the police to Van's house after learning that the
victim had taken their daughter to Cambodia, but left without
incident; and Hour called the victim a Cambodian word meaning
"whore" and told Van that he would get
"revenge" in their custody battle, which Van
deposed that she understood to mean that he would take their
dispute to court. This evidence is legally insufficient to
create a jury question on the issue of whether Van knew or
had reason to believe that Hour was capable of or
contemplating deadly violence. See McDaniel, 257
Ga.App. at 189 (affirming the trial court's ruling that
property owner's knowledge that her neighbor "could
be mean when he was drinking" and had "struck his
wife, knocking her teeth out" was insufficient to put
the property owner on notice that he was prone to deadly
violence with a handgun); Aldridge, 237 Ga.App.
604-605 (2), (3) (affirming grant of summary judgment to
property owner who could not foresee that her husband posed a
physical threat to the victim, who he stabbed, because
"there was no similarity between [her husband's]
prior threats, which were never acted upon, and the present
incident of aggravated assault with a deadly weapon");
see also Rigdon, 256 Ga.App. at 502-503 (1).
not a close case. The trial court clearly erred in denying
Van's motion for summary judgment.