Nalle v. Quality Inn, Inc. , 183 Ga. App. 119 ( 1987 )

Sognier, Judge.

L. Paul Nalle brought suit against Quality Inn, Inc., to recover damages for injuries sustained when he was attacked and robbed while a hotel guest. The trial court granted summary judgment in favor of Quality Inn, Inc., and Nalle appeals.

Appellant contends the trial court erred by granting judgment to appellee as a matter of law because previous criminal incidents at the hotel were sufficiently similar to that suffered by appellant to put ap-pellee on notice that a danger existed, thus creating a duty to protect appellant.

It is uncontroverted that the provisions of OCGA § 51-3-1 govern this case. “Under this statute, ‘(t)he true ground of liability of the owner of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. [Cits.]’ [Cit.]” McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983). “ ‘[0]ne is not ordinarily charged with the duty of anticipating acts mala per se, but there are exceptions to this rule. . . .’” Pittman v. Staples, 95 Ga. App. 187, 191 (97 SE2d 630) (1957). The rule has been held inapplicable if the landowner had reasonable grounds for apprehending that such a criminal act would be committed. McClendon v. C & S Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592) (1980).

The factual situation in McCoy, supra, was remarkably similar to that in the case sub judice. In both cases, appellant was attacked in the parking lot of a hotel. In both cases the hotel had hired security personnel who were on duty but elsewhere on the premises when the attack occurred. “The burden of proof was on appellant, as plaintiff, to demonstrate appellee’s knowledge that the parking lot subjected invitees to the unreasonable risk of criminal attacks.” McCoy, supra at 591. In both cases, appellant attempted to meet this burden by introducing evidence of prior crimes at the hotel. “While the relevancy of other occurrences is ordinarily within the sound discretion of the court, ‘it is necessary that the conditions of the things compared be substantially similar.’ [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. [Cits.]” Carlton Co. v. Poss, 124 Ga. App. 154, 155 (3) (183 SE2d 231) (1971). Neither in McCoy nor in the case sub judice had the prior crimes taken place in that area of the hotel premises where the attack on appellant occurred. Thus, as in McCoy, “we hold that the evidence of [the prior crimes] at the Inn did not meet the ‘similarity’ requirement so as to constitute a sufficient showing of [appellee’s] knowledge of the ‘litigated’ dangerous condition.” McCoy, supra at 592-593. Thus, “[n]o evidence was admitted, or was proffered and improperly excluded, which would support a finding that [appellee] knew or should have known that the Inn’s parking lot, as lighted and as periodically patrolled by the security guard, subjected the Inn’s invitees to an unreasonable risk of sudden, unprovoked and unexpected criminal attack.” Id. at 593-594. Since appellant failed to carry his burden, superior knowledge on the part of appellee was not shown, and appellee was therefore entitled to judgment in its favor as a matter of law.

Appellant also argues that even if its evidence of prior crimes was not sufficiently similar to impose a duty on appellee to provide security, appellee is liable to appellant because it nevertheless assumed that duty and then discharged it in a negligent manner. Although appellant claims this argument is supported by the affidavit of William B. Dobbs, we are unable, despite a thorough and diligent search of the record, to locate such an affidavit. We are unable to say, from the record as it exists, that appellee undertook to secure the parking lot area where appellant was attacked, or how that duty was performed. In fact, George Ramirez, appellee’s chief security officer, stated in his unrebutted affidavit that the principal function of the security officers was to guard the front desk. Appellant has thus shown neither assumption of a particular duty to secure that area, nor its negligent discharge. Atlanta Center, Ltd. v. Cox, 178 Ga. App. 184 (341 SE2d 15) (1986) and Burdine v. Linquist, 177 Ga. App. 545 (340 SE2d 198) (1986), cited by appellant, are distinguished by their facts and therefore inapposite. In Cox, supra, the criminal attack occurred as the guests were exiting the hotel elevator, notwithstanding the hotel’s installation of mechanical security devices which monitored the elevators. The installation of these devices indicated the hotel was aware that something untoward might befall its guests at that location, and consequently the question of whether the security provided was adequate and non-negligently performed remained for jury consideration. In Burdine, supra, at least one prior incident offered by the victims as evidence was sufficiently similar to be admissible for the purpose of showing that the hotel was, or should have been, aware of the dangerous condition created by the dim lighting immediately outside the guest room. In contrast, however, in the case at bar, as discussed above, there is no indication that the hotel was or should have been aware that its parking lot presented a particularly dangerous condition. Thus, even viewing the evidence in a light most favorable to appellant as the nonmovant, see Butler v. Terminix Intl., 175 Ga. App. 816 (1) (334 SE2d 865) (1985), no genuine issues of fact remained, and appellee was entitled to judgment as a matter of law. We find the trial court did not err by granting summary judgment in appellee’s favor.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.