BOLTON et al.
GOLDEN BUSINESS, INC.
DILLARD, C. J., DOYLE, P. J., and MERCIER, J.
October 23, 2015, Shaneku McCurty was murdered in a
convenience store parking lot. Her mother, Shirley Bolton,
sued the convenience store owner/operator, Rikaz Food, Inc.
("Rikaz"), and its landlord, Golden Business, Inc.
("Golden"), for wrongful death and other
damages. Golden subsequently moved for summary
judgment, which the trial court granted. Bolton appeals, and
for reasons that follow, we affirm.
judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." OCGA § 9-11-56 (c). We review the grant of
summary judgment de novo, construing the evidence and all
reasonable inferences in favor of the non-moving party. See
Fair v. C V Underground, 340 Ga.App. 790 (798 S.E.2d
viewed, the record shows that Golden has owned and operated
numerous commercial properties, including gas station
convenience stores, for over two decades. In 2000, Golden
purchased real estate in Stone Mountain that housed several
businesses. Soon after the purchase, Golden added a
convenience store to the property. Golden built the store,
then operated it for eight or nine months before leasing the
premises to another operator, who ran the store until Rikaz
took over the lease and store operations in 2013.
dispute, Rikaz was the owner/operator of the convenience
store when McCurty entered to buy snack items just after 1:00
a.m. on October 23, 2015. McCurty completed her purchase and
returned to her car, which was parked in front of the store.
Before getting into her vehicle, however, she was confronted
by an unidentified assailant, who shot and killed her. Acting
individually and as administrator of McCurty's estate,
Bolton sued Rikaz and Golden, alleging that they failed to
exercise ordinary care to keep the premises safe and allowed
a dangerous condition to exist on the property, creating a
nuisance. Golden moved for summary judgment, arguing that it
was not responsible for McCurty's death or any damages
suffered by Bolton. The trial court agreed. We find no error.
Although a landowner must "exercise ordinary care in
keeping the premises and approaches safe" for its
invitees, it is not required to insure an invitee's
safety. Fair, supra at 792 (1) (citation and
punctuation omitted). Rather, it has a duty to exercise
ordinary care to protect its invitees "from unreasonable
risks of which it has superior knowledge." Id.
An intervening criminal act by a third party generally
"insulates [the landowner] from liability unless such
criminal act was reasonably foreseeable." Id.
Thus, a landowner only "has a duty to exercise ordinary
care to guard against injury from dangerous characters"
when it "has reason to anticipate a criminal act."
Id. (citations and punctuation omitted). See also
Sun Trust Banks v. Killebrew, 266 Ga. 109 (464
S.E.2d 207) (1995) (landowner is not "liable for the
criminal act of a third party unless it has reasonable
grounds for expecting that such a criminal act would
to Bolton, Golden should have foreseen - and taken steps to
prevent - the deadly assault in this case because people
often loitered outside of Rikaz's convenience store,
other violent crimes had occurred at the store, and the store
was located in a high-crime area. It is true that the
foreseeability of a criminal act "may be established by
evidence of one or more prior similar crimes."
Piggly Wiggly Southern v. Snowden, 219 Ga.App. 148
(1) (a) (464 S.E.2d 220) (1995). The key question, however,
is the landowner's superior knowledge of the criminal
activity. See Fair, supra ("But even if an
intervening criminal act may have been reasonably
foreseeable, the true ground of liability is the
superior knowledge of the proprietor of the
existence of a condition that may subject the invitee to an
unreasonable risk of harm."); Medical Ctr. Hosp.
Auth. v. Cavender, 331 Ga.App. 469, 474 (1) (771 S.E.2d
153) (2015) ("[I]t is the Plaintiffs' burden to
establish that the property owner had knowledge of the
previous substantially similar crimes on or near the premises
upon which the plaintiffs rely to establish
Aly, Golden's sole owner, testified that he thought
Rikaz's store was located in a safe area based on his
examination of the property and surrounding neighborhood, and
he did not know about any prior crimes in or around the
store. Although Golden equipped the convenience store with
bulletproof glass and security cameras in 2000, Aly asserted
that he incorporates these safety measures in all
stores that Golden builds or operates, regardless of store
location and partly for insurance purposes. Aly conceded that
he visited the property periodically to "see [that]
everything . . . [was] the way [it was] supposed to be."
But Bolton has pointed to no evidence that Aly witnessed
criminal activity or misconduct during these visits, that his
tenants informed him about crimes or other problems, or that
Aly received any request for increased or different security.
Aly's testimony, Bolton argues that ongoing and rampant
crime in the area should have put Aly (and thus Golden) on
notice that a dangerous condition existed on the property. In
support, she cites to police reports and other evidence
detailing the criminal activity. Bolton, however, cannot
"rest upon the police reports as a means to establish
[Golden's] knowledge of the activities contained in those
reports." Cavender, supra at 477 (1) (b). See
also Killebrew, supra ("There is no authority
in this State imposing a duty upon a property owner to
investigate police files to determine whether criminal
activities have occurred on its premises[.]"). And she
has not demonstrated that Golden knew about or was alerted to
the possibility of prior crimes in Rikaz's convenience
store, the store parking lot, or the surrounding
area.Under these circumstances, the existence of
crime in the area - by itself - does not raise a genuine
question of material fact as to Golden's knowledge. See
Baker v. Simon Property Group, 273 Ga.App. 406, 407
(1) (614 S.E.2d 793) (2005) (because plaintiff failed to show
that defendants were aware of crime reports made to police,
reports could not be used to demonstrate foreseeability of
the attack); compare Double View Ventures v. Polite,
326 Ga.App. 555, 561 (1) (a) (757 S.E.2d 172) (2014)
(evidence of prior violent criminal activity on convenience
store property, including inside convenience store, raised
factual question as to whether convenience store
owner/operator knew or should have known about hazardous
condition on its premises), overruled in part on other
grounds by Martin v. Six Flags Over Ga. II, 301 Ga.
323, 341 (III) n.12 (801 S.E.2d 24) (2017).
evidence that Golden had reason to know about prior, similar
criminal activity in the area, Bolton cannot establish that
the attack on McCurty was foreseeable to Golden. See
Cavender, supra (premises liability claim failed
without proof that defendants knew about prior criminal
activity on or around its premises). The trial court properly
granted summary judgment to Golden on Bolton's premises
liability claims. See id.
was also entitled to summary judgment on Bolton's
nuisance claim, which, like the premises liability claims,
stemmed from a purported failure to keep the premises safe.
As noted by the trial court, "there can be no liability
for nuisance without evidence that the defendant had notice
or knowledge of the alleged defect." See Thompson v.
City of Atlanta, 274 Ga.App. 1, 4 (2) (616 S.E.2d 219)
(2005) ("Knowledge or notice of the alleged defective
condition is an element of [the nuisance] claim[.]").
Bolton's failure to raise a genuine issue of fact as to
Golden's knowledge, therefore, was fatal to this claim,
as well. See Thompson, supra.
Finally, Bolton argues that the trial court erred in granting
summary judgment to Golden on her claims for punitive damages
and attorney fees. But because the trial court correctly
granted summary judgment to Golden on Bolton's underlying
claims against Golden, "the grant of summary judgment on
[her] punitive damages and attorney fees claims was also
proper." Albee v. Krasnoff, 255 Ga.App. 738,
744 (7) (566 S.E.2d 455) (2002).