Washington Road Properties, Inc. v. Stark , 178 Ga. App. 180 ( 1986 )

Deen, Presiding Judge.

At about 9:00 p.m. on April 6, 1984, Carol Bordwell and Carmen Stark registered for a room at the Ramada Inn West, appellant, in Augusta, Georgia. As they approached their room they passed a black male who was standing beside the steps. Bordwell and Stark proceeded to their room, but before they could close the door this man appeared in the doorway, displayed a handgun, and entered the room. He then tied up both women, robbed them, and raped Carol Bordwell. After he left, the two women were able to untie themselves and summon the police. The assailant was never apprehended.

Around 7:30 p.m. that same evening, the motel manager had observed a black male, who matched the description of the assailant, standing by the entrance to the lounge. The manager asked him what he was doing, and the man stated that he was waiting for a friend, but he would not identify the friend. The manager then told him to leave, and he watched the man actually walk off the premises.

It was uncontroverted that the motel was located in what was generally considered a low crime area. A security guard was on duty from 11:00 p.m. until 6:00 a.m. The manager stated that he knew of only two prior criminal acts on the premises, both of which had been robberies of the motel front desk three and five years earlier. He also recalled, however, that about one week prior to the rape a man matching the assailant’s description had been seen looking through the window of the motel lounge; the security guard had been contacted at that time but was unable to find this person. The parking lot and the common walkways were lighted.

Subsequently, the appellees, Carpi Bordwell and Carmen Stark, commenced actions against the appellant, alleging negligence in the appellant’s failure to maintain safe premises and warn them of the danger of criminal acts. The trial court denied the appellant’s motion for summary judgment in each case, and these interlocutory appeals (consolidated here) followed. Held:

An innkeeper has a duty to keep his premises in a reasonably safe condition for his patrons, but an innkeeper is not an insurer. Truett v. Morgan, 153 Ga. App. 778 (266 SE2d 557) (1980). A proprietor may be liable for an invitee’s injuries caused by the misconduct of a third party, if there was any reasonable apprehension of such danger or if the proprietor could have prevented the injury through the exercise of ordinary care. McCoy v. Gay, 165 Ga. App. 590 (302 SE2d 130) (1983); see also McClendon v. C & S Nat. Bank, 155 Ga. App. 755 (272 SE2d 592) (1980).

In the instant case there was no evidence showing that the appellant had any basis to know of, or reasonably to foresee, the danger of the criminal attack upon the two appellees. Assuming that the assailant was the same person whom the motel manager had required to leave the premises earlier in the evening, and even the same person who had looked through the lounge window the week before, as a matter of law the evidence demands a finding that the manager acted reasonably and exercised ordinary care to keep the premises safe for the patrons; to hold otherwise in this case would impose a standard of hindsight rather than reasonable foresight. Additionally, the two robberies at the motel front desk three and five years prior to the criminal attack upon the appellees did not constitute notice to the appellant of a dangerous condition that might subject the motel patrons to an unreasonable risk of criminal injury, as there was no substantial similarity between those prior robberies and the present incident. McCoy v. Gay, supra; Tolbert v. Captain Joe’s Seafood, 170 Ga. App. 26 (316 SE2d 11) (1984). Accordingly, the trial court erred in denying the appellant’s motion for summary judgment in both cases.

Judgments reversed.

Banke, C. J., Birdsong, P. J., Sognier, Pope and Benham, JJ., concur. Carley and Beasley, JJ., dissent. McMurray, P. J., concurs in the judgment of the dissent only.