Double View Ventures, LLC v. Polite

Miller, Judge.

Nathaniel Polite filed a premises liability suit against Double View Ventures LLC (“Double View”) and Westdale Asset Management Ltd. (“Westdale”), the owner and property manager, respectively, of the apartment complex in which he lived at the time he was attacked by unknown assailants. Following a trial, the jury returned a verdict for Polite, determining that Double View and Westdale (collectively, “the Defendants”) were significantly at fault for Polite’s injuries, Polite was somewhat at fault, and the unknown assailants were not at fault. The Defendants appeal from the denial of their motion for new trial, contending that the trial court erred in: (1) refusing to allow the jury to consider an apportionment of fault with respect to the nonparty owner of the property adjacent to the apartment complex; (2) denying their motion for new trial on the basis that the jury’s failure to assign fault to the criminal assailants was contrary to or strongly against the evidence; (3) giving a charge on proximate cause that was inconsistent with the statutory requirement regarding apportionment of fault; and (4) excluding bad character evidence after Polite elicited testimony showing his good character. For the reasons that follow, we reverse.

Viewed in favor of the verdict,¹ the evidence shows that on the evening of May 30, 2007, Polite, then a resident of Stonebridge Apartments, walked along a dirt path leading from the parking lot in front of his apartment to the Chevron gas station located adjacent to the apartment complex. It was well documented that residents of the apartments and their guests would use that path to go to the Chevron convenience store. The path went up a small hill to a wooden fence, which served as a boundary between the two properties, and the wooden fence had an opening that allowed for access back and forth across the properties. Polite passed through the fence and then continued walking to the Chevron station’s convenience store, where he bought a soft drink and a pack of cigarettes. Polite then exited the store and began walking back to his apartment.

As Polite walked back through the fence, two assailants, who were hiding behind the wooden fence, threw bleach into his face. Polite, whose eyes were burning, started running down the hill toward his apartment and screaming for his friends. One of the assailants then fired a gun, and the bullet struck Polite in the back, injuring his spine. It was not known if the assailants came from the apartment complex or the Chevron station.

Polite was subsequently taken to a hospital for his injuries, and he remained there for several months. As a result of the gunshot wound, Polite has difficulty walking, requires the use of a cane, is unable to stand for long periods of time, and has bowel and bladder problems. Polite’s assailants were never apprehended.

In the three years preceding the attack on Polite, at least a dozen armed robberies and a number of aggravated assaults had occurred at the Stonebridge Apartments. Furthermore, approximately two weeks prior to Polite’s attack, an apartment resident was attacked soon after passing through the wooden fence as he was walking back home along the dirt path from the Chevron station. That individual reported the incident to the complex manager of Stonebridge Apartments. Another attack was also reported to the complex manager approximately one week before Polite’s attack.

A security expert testified that given the documented history of armed robberies and aggravated assaults at Stonebridge Apartments, the access and perimeter control for the property fell below the standard of care. The security expert testified that, while the apartment complex had wrought-iron gates and chain link fencing surrounding most of the property, the use of the wooden fence as a means to control access from the convenience store was inadequate. The security expert also testified that the wooden fence was actually harmful because it provided a cover for would-be assailants to hide behind while waiting for victims. A former Stonebridge Apartments security guard testified that, beginning in January 2007, he made numerous reports to management identifying the opening in the wooden fence as a significant security violation, because it left residents unprotected. The security guard stated that nothing was done to respond to his concerns.

Following his attack, Polite sued the Defendants, alleging that they were negligent in failing to exercise ordinary care in keeping the premises safe and that their failure to provide adequate security in light of the prior criminal activity was the proximate cause of his injuries. Following a trial, the jury returned a verdict for Polite, finding that he was 13% at fault and the Defendants were 87% at fault. Although the unknown assailants were on the verdict form, the jury did not apportion any fault to them. Pursuant to the trial court’s ruling, the verdict form did not include the name of the Chevron gas station for the jury to determine whether it should be apportioned fault.

1. On appeal, the Defendants contend that the trial court erred in refusing to allow the jury to consider the percentage of fault of the Chevron station and to apportion damages among the Defendants and the Chevron station, pursuant to OCGA § 51-12-33. We agree.

Prior to trial, the Defendants filed three different notices of intent to seek apportionment of fault among nonparties as well as parties pursuant to OCGA § 51-12-33 (d). The three notices named at least three different entities as the owner of the Chevron gas station located adjacent to the Stonebridge Apartments.

At trial, evidence was elicited that, in addition to the criminal incidents on the apartment complex property in the three years preceding Polite’s attack, there were approximately nine robberies or assaults on the Chevron property, both inside and outside the store. Other evidence showed that the wooden fence in question was built by the owners, or former owners, of the Chevron station. A survey of the Chevron property shows that the fence is 12 feet away from the property line abutting Stonebridge Apartments.

A former Stonebridge Apartments complex manager testified that the Defendants began repairing the fence after individuals ripped out planks in order to cross between the convenience store and the apartment complex. The manager further testified that she attempted to contact the owners of the Chevron station to determine who was responsible for the fence and to propose sharing the costs of installing a wrought-iron fence; however, she received no response from the Chevron station owners. The manager also stated that the Defendants ultimately installed a wooden gate to deter people from tearing off planks from the fence.

Following the close of evidence, the trial court considered Polite’s motion for a directed verdict on the issue of putting the Chevron station on the verdict form for an apportionment of fault. Although the trial court initially questioned the validity of the Defendants’ pretrial notices on the ground that the Defendants had not established the true legal owner of the Chevron station, it concluded that the notices were legally adequate. The trial court nevertheless determined that the Chevron station would not be on the verdict form because the Defendants failed to produce any evidence creating a jury question as to whether the Chevron station was responsible for any of the repairs or had knowledge of the existing condition of the fence.

Here, the trial court essentially granted Polite’s motion for a directed verdict on the apportionment-of-fault issue with respect to the Chevron station.

A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the nonmovant, demands a particular verdict. OCGA § 9-11-50 (a). But where any evidence or some evidence exists to support a jury issue on the non-movant’s claims, a directed verdict is improper. This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict only if all of the evidence demands it.

(Citations and punctuation omitted.) Sun Nurseries v. Lake Erma, LLC, 316 Ga. App. 832, 835 (730 SE2d 556) (2012).

(a) The apportionment-of-fault statute at issue, OCGA § 51-12-33,

establishes the mechanism by which a trier of fact apportions damages. First, if the plaintiff is some degree responsible for its own injuries, the trier of fact determines the percentage of fault of the plaintiff, and the judge thereafter reduces the total amount of damages awarded in proportion to the plaintiff’s percentage of fault. Next, in cases involving an action against more than one actor, the trier of fact apportions the remaining damages among the liable actors according to each actor’s percentage of fault.

(Punctuation and footnotes omitted.) Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 271 (1) (740 SE2d 672) (2013). “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” (Emphasis supplied.) OCGA § 51-12-33 (c).

The purpose of the apportionment statute is to have the jury consider all of the tortfeasors who may be liable to the plaintiff together, so their respective responsibilities for the harm can be determined. ... By its plain language, OCGA § 51-12-33 (b) makes all persons responsible according to their respective percentages of responsibility.

(Punctuation omitted.) Couch v. Red Roof Inns, 291 Ga. 359, 365 (1) (729 SE2d 378) (2012).

In determining whether the Chevron station could be held liable to Polite, we look to applicable premises liability law.

[I]n Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe, which includes inspecting the premises to discover possible dangerous conditions of which the proprietor does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

(Punctuation and footnotes omitted.) Benefield v. Tominich, 308 Ga. App. 605, 607-608 (1) (708 SE2d 563) (2011). Proprietors also have a duty to protect customers from reasonably foreseeable criminal acts, and the question of reasonable foreseeability is generally for a jury to determine. See Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 785-786 (482 SE2d 339) (1997). An incident causing an injury is not considered reasonably foreseeable unless it was substantially similar to prior criminal acts based on “the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” (Citations and punctuation omitted.) Id. at 786.

In this case, it is undisputed that: the Chevron station built the fence; the Defendants made repairs to it; the holes in the fence, which allowed easy access between Stonebridge Apartments and the Chevron station, were an ongoing issue; there was a hole in the fence as of January 2007, about five months prior to the attack on Polite; and many violent crimes and robberies had occurred on the Chevron gas station property during the same period that similar crimes occurred at Stonebridge Apartments. Additionally, there is evidence that the Defendants attempted to contact the owners of the Chevron station for the purpose of coming to some agreement to replace the wooden fence, and that the Chevron station owners were unresponsive. Furthermore, Polite testified that he was attacked after he walked through the fence and took a few steps, and the evidence shows that the wooden fence is on Chevron’s property about 12 feet away from the Defendants’ property line. Given this evidence, along with the fact that it is unknown whether the attackers came from the Chevron station or the apartment complex, a jury question exists as to whether the Chevron station should have anticipated another criminal attack near the wooden fence and whether Chevron took reasonable precautions to protect Polite from the use of its premises. Sturbridge Partners, supra, 267 Ga. at 786-787 (holding evidence of prior burglaries was sufficient to give rise to a jury issue as to whether or not an apartment complex had the duty to exercise ordinary care to safeguard its tenants against the foreseeable risks posed by the prior burglaries). Under these circumstances, we cannot say that there was no evidence supporting the Defendants’ claims that the Chevron gas station may have been liable for Polite’s injuries and could be apportioned fault. Consequently, the trial court erred in refusing to allow the jury to consider whether the Chevron station was partially at fault.

The dissent reaches a contrary conclusion, contending that the Defendants were required to call witnesses in order to create factual questions as to the apportionment issue. Contrary to the dissent’s assertion, this Court has held that, even where a defendant does not call witnesses, the plaintiff’s own evidence may create questions of fact that preclude a directed verdict. See Glover v. Southern Bell Telephone & Telegraph Co., 132 Ga. App. 74, 78 (6) (207 SE2d 584) (1974). In arguing against Polite’s motion for a directed verdict, the Defendants cited to the above evidence showing that a jury question existed as to the apportionment issue.

Additionally, the dissent’s conclusion that the frequency of crimes in the area, including those at the Chevron station itself, “establishes nothing about what the owners or occupiers knew,” ignores well-established legal precepts and views the evidence in a light most unfavorable to the Defendants, who were the nonmovants with respect to Polite’s motion for a directed verdict. Notably, the evidence shows that there were armed robberies and assaults inside the convenience store, as well as in the parking lot and behind the building. Given that the incidents that occurred inside the store were reported to the police, as the dissent acknowledges, it strains credulity that the owners of the store were not aware of this criminal activity.

Nevertheless, a landowner

need not have actual knowledge of criminal conduct before it may be held liable for failing to keep the premises safe; rather a landowner can be liable for third-party criminal attacks if the landowner has reasonable grounds to apprehend that such a criminal act would be committed but fails to take steps to guard against injury.

(Citation and punctuation omitted.) Walker v. Aderhold Properties, 303 Ga. App. 710, 713 (1) (694 SE2d 119) (2010). One way to prove that a landowner had advance notice of the danger of criminal attack is by introducing evidence showing a pattern of substantially similar crimes on the premises. See Fernandez v. Ga. Theatre Co. II, 261 Ga. App. 892, 893 (583 SE2d 926) (2003) (providing that a proprietor’s knowledge can be shown by evidence of substantially similar prior incidents of violence on its premises); Hunter v. Cabe Group, Inc., 244 Ga. App. 162, 163 (535 SE2d 248) (2000) (“In order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the proprietor may be held liable.”) (citations omitted).

Given the evidence showing numerous armed robberies and assaults on the Chevron property, including inside the convenience store, as well as evidence that the area surrounding the Chevron station and the apartment complex was known as a high-crime area, there is a factual question as to whether the Chevron station knew or should have known about the dangerous conditions on its premises which might subject it to a determination of fault. It was for the jury, not any member of this Court, to resolve this issue. Moreover, although it is not clear whether the Chevron station had any security protection, it is undisputed that it did not maintain its own fence, that the portion of the fence at issue was located on Chevron property about 12 feet away from the property line, and that this failure resulted in clear danger to those, such as Polite, who traversed openings in the fence.

Although the dissent wishes to uphold the jury’s verdict, an apportionment of fault is required by law. Polite removed this issue from the jury’s consideration by successfully moving for a directed verdict. Notwithstanding the substantial jury verdict, or this Court’s desire to honor the jury’s verdict, this Court cannot ignore the apportionment requirement. Nor can this Court overlook well-established law concerning a review of a directed verdict that mandates that we view the evidence most favorable to the nonmovant and that we reverse a directed verdict where, as here, a factual question exists that was not resolved by the jury. Since there is some evidence showing that the Chevron station may have contributed to Polite’s injuries, we are constrained to reverse the jury’s verdict because the jury did not have the opportunity to consider whether the Chevron station should be apportioned fault.

(b) To the extent Polite argues that the Defendants failed to prove the exact identity of the owners of the Chevron station, his argument is unavailing.² In order to submit the apportionment issue to the jury, the defending party must give pretrial notice that a nonparty was wholly or partially at fault. OCGA § 51-12-33 (d) (1). The notice

shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(Emphasis supplied.) OCGA § 51-12-33 (d) (2). The statute does not require precise party identification. See GFI Mgmt. Svcs. v. Medina, 291 Ga. 741, 742-743 (733 SE2d 329) (2012) (unknown criminal assailants could be on the verdict form for apportionment of fault). Additionally, the determination of fault under OCGA § 51-12-33 does not subject a nonparty to liability in any action and cannot be introduced as evidence of liability in any action. OCGA § 51-12-33 (f). Consequently, although establishing the exact identity of the Chevron station owner would be necessary to subject that owner to liability, to apportion fault, the Defendants were required, at a minimum, to designate the nonparty’s identification as much as they could under the circumstances. OCGA § 51-12-33 (d). The trial court found that the Defendants’ apportionment notices were adequate, and Polite presents no basis to reverse that ruling.

Finally, we note that the Defendants have a burden to establish a rational basis for apportioning fault to a nonparty, see Couch, supra, 291 Ga. at 366 (1); Levine, supra, 321 Ga. App. at 272 (1). Whether the Defendants would have met that burden given the trial evidence presented should have been left for the jury to determine. See Couch, supra, 291 Ga. at 366 (1). Accordingly, the trial court erred by taking that issue away from the jury and completely omitting the Chevron station from the verdict form.

2. The Defendants also contend that the trial court erred in its charge to the jury on proximate cause because it is inconsistent with the statutory requirement that the jury apportion fault to all persons responsible for the plaintiff’s injuries. We disagree.

The review of allegedly erroneous jury instructions is a legal question, and we therefore review the trial court’s ruling de novo. Monitronics Intl. v. Veasley, 323 Ga. App. 126, 140 (5) (746 SE2d 793) (2013). “[I]t is well established that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) West v. Breast Care Specialists, 290 Ga. App. 521, 522 (1) (659 SE2d 895) (2008).

Over the Defendants’ objection, the trial court gave the following instruction on proximate cause:

Proximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred. Proximate cause is that which is nearest in the order of responsible causes, as distinguished from remote. That which stands last in causation, not necessarily in time or place, but in causal relation.

If an injury would have occurred regardless of the acts of negligence on the part of the Defendant, there can be no recovery. In determining whether Plaintiff has met his burden of proving that a Defendant’s negligence was the proximate cause of his injuries, you need not address the various elements of it in any particular order. There may be more than one proximate cause of an injury.

A general principle of law is that one wrongdoer may be liable for the acts of a later wrongdoer if the first could have foreseen the wrongful acts of the second. If, after an original wrongful act, a new act has intervened that, by itself, could have been the cause of the injury, and the nature of the new act was such that its natural consequences could reasonably have been foreseen by the original wrongdoer, the original wrongdoer is responsible for all of the consequences resulting from the intervening act.

As discussed in Division 1, a property owner has a duty to keep his premises safe from foreseeable criminal acts. The proximate cause charge reflects this principle by stating that “one wrongdoer may be liable for the acts of a later wrongdoer if the first could have foreseen the wrongful acts of the second.” While the proximate cause instruction also stated that the original wrongdoer is responsible for all of the consequences resulting from the intervening act, it does not expressly provide that such wrongdoer is completely or totally liable for all of the plaintiff’s damages. Indeed, the fact that a property owner may be liable for failing to keep the premises safe from foreseeable criminal acts does contradict the requirement that damages are to be apportioned. See Couch, supra, 291 Ga. at 366 (1) (holding that even under the apportionment statute, a property owner must still keep his premises safe or face potential liability in proportion to his level of responsibility for causing the plaintiff’s injuries from failing to protect against a criminal attack). The trial court correctly instructed the jury on the issue of apportionment of fault and did not err in giving the proximate cause instruction.

3. The Defendants’ remaining claims of error are based on evidence admitted at trial, are not likely to recur during retrial of the case, or are moot in light of our holding in Division 1.

Judgment reversed.

Andrews, P. J., Dillard and McMillian, JJ., concur. Doyle, P. J., and Ray, J., concur fully in Divisions 1 and 3 and concur in judgment only in Division 2. Barnes, P. J., concurs fully in Division 2 and dissents in Divisions 1 and 3.

1 Barnett v. Farmer, 308 Ga. App. 358 (707 SE2d 570) (2011).

2 Polite relies upon this Court’s opinion in Union Carbide Corp. v. Fields, 315 Ga. App. 554, 559 (1) (b) (ii) (726 SE2d 521) (2012) for the proposition that the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty contributed to Polite’s injury. Notwithstanding the fact that Union Carbide was reversed by Georgia-Pacific v. Fields, 293 Ga. 499 (748 SE2d 407) (2013), as discussed above, there is some evidence creating jury issue on the question of whether the Chevron station contributed to Polite’s injuries.