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Hill v. MM Gas & Food Mart, Inc.

Court of Appeals of Georgia, Fourth Division

August 29, 2019


          DOYLE, P. J., COOMER and MARKLE, JJ.

          MARKLE, JUDGE.

         After George Hill was shot by a stray bullet as he shopped at the MM Gas & Food Mart ("MM Gas"), he filed suit against MM Gas and several of its employees, alleging negligence and premises liability. The trial court granted summary judgment to MM Gas, and Hill now appeals, arguing that there were genuine issues of fact regarding MM Gas's duty to protect customers from a foreseeable risk. After a thorough review of the record, and for the reasons that follow, we affirm.

         We review the grant of a motion for summary judgment de novo, viewing the evidence, and making all reasonable inferences, in the light most favorable to the nonmovant. Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 S.E.2d 779) (2010).

         So viewed, the record shows that in October 2013, Hill and his friend Laverbon Hightower went to MM Gas to purchase lottery tickets. Hightower lived near the store, and Hill picked him up at his house and drove to the store. Although Hill was not aware of any prior incidents of criminal activity in the area, Hightower knew there was drug and other illegal activity there.

         As the two men waited at the counter to buy their tickets, they heard gunshots and the sound of breaking glass. Hill felt a burning sensation on his head, fell to the floor, and discovered he was bleeding.[1] There was a bullet hole in the door near where the men had been standing. The men then finished purchasing their lottery tickets and left the store. Neither man had noticed anything suspicious as they entered the store, nor did they see the shooter.

         Hill drove Hightower home and then sought treatment at the hospital, where doctors cleaned and dressed his head wound and released him. Hill did not require any pain medication or any further treatment.

         An investigator with the Macon police department found shell casings in the parking lot across the street from MM Gas. He determined that the shooter fired from that site. According to a police department report of other criminal activity in the area, there were three prior instances involving weapons: on September 1, 2013, someone discharged a firearm inside MM Gas; on September 9, 2013, someone with a gun inside the store stated that he planned to shoot rival gang members; and on October 7, 2013, an individual pointed a gun at someone inside the store. A private investigator Hill hired concluded that the cashier's counter inside the store "appeared" to be protected by bulletproof glass and that after Hill's shooting, someone tried to install bulletproof glass on the front windows.

         Hill sued MM Gas and ten John Doe employees, [2] alleging that they were negligent because the risk that a customer could be shot on the property was foreseeable, and MM Gas failed to undertake any action to protect its customers.[3] Hill also brought claims against MM Gas for vicarious liability and negligent hiring and retention.

         MM Gas moved for summary judgment, arguing that it had no legal duty to protect Hill in this case because it had no control over the premises from which the bullet was fired, it did not have superior knowledge of any risk, and even if it had breached a duty to Hill, there was no evidence that the failure to provide additional security measures was the cause of Hill's injury.

         Hill filed a response to the motion for summary judgment in which he asserted that there remained genuine issues of material fact. He later supplemented his response, [4] arguing that MM Gas breached its duty because there had been numerous other instances of gun violence on the property in the months leading up to his incident, which made the risk foreseeable, and MM Gas failed to take any measures to protect its customers.

         Following a hearing, the trial court granted summary judgment to MM Gas, finding that MM Gas was not liable for Hill's injuries because the danger was not foreseeable. Specifically, the trial court concluded that the prior instances of gunfire were not sufficiently similar such that MM Gas would have superior knowledge of a risk to its customers, and that Hill presented no evidence to show what MM Gas should have done to protect its customers. Hill now appeals.

         On appeal, Hill argues that summary judgment was improper because there are factual issues regarding whether MM Gas's constructive knowledge of the prior instances of gun violence made the risk foreseeable and ...

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