The Supreme Court of Georgia recently delivered its highly anticipated decision in Ga. CVS Pharmacy v. Carmichael, S22G0527 (June 29, 2023), shedding light on the liability of proprietors and security contractors for injuries resulting from third-party criminal activity. While the ruling addresses various aspects of these claims, some unresolved questions remain.
Facts of the Case
James Carmichael was shot several times by an unknown shooter in a CVS parking lot in Atlanta, Georgia. Carmichael suffered severe and long-term injuries as a result of the incident. He filed a premises liability suit against CVS and asserted that CVS had failed to provide adequate security to protect the property. The jury found in favor of Carmichael and awarded $42,750,000. CVS appealed the verdict. On appeal, the Georgia Court of Appeals approved the jury's verdict finding that a reasonable jury could determine that the robbery should have been foreseeable by CVS and that Carmichael did not have "superior knowledge" of the danger. In addition, the Georgia Court of Appeals reasoned that additional security measures may have prevented the attack.
The Supreme Court of Georgia granted certiorari of the case along with two similar cases to clarify, among other things1, how reasonable foreseeability in a premise liability claim involving third-party criminal acts should be determined. It reinforced that the parties should examine the "totality of the circumstances" in determining whether the third-party criminal act was reasonably foreseeable. Specifically, the Supreme Court of Georgia concluded that the pertinent question in determining foreseeability is whether the totality of the circumstances gave a proprietor sufficient reason to anticipate the third-party criminal act. In answering this question, evidence of substantially similar prior criminal activity, closer in time, proximity, and type, may be probative in the foreseeability analysis, but is not required.
The Court went on to acknowledge that the analysis does not stop at foreseeability. Liability can only attach if the proprietor is found to be negligent. The next issue to be addressed is whether a proprietor acted reasonably with knowledge of the foreseeable risk, which is necessary in determining whether a proprietor breached a duty. If there is evidence that the proprietor acted reasonably, then there is no breach of duty.
Breaking it Down: What Does This Decision Mean for Your Business and Clients?
If duty is established by proving foreseeability of a third-party criminal act, it is important to remember reasonable security measures with a lack of evidence that the security precautions violated the applicable standard of care will bar recovery. However, while the existence of a duty is a question of law for the trial courts to decide, the question of foreseeability is a determination left to the jury. Therefore, proprietors are at the mercy of the jury in negligent security cases because the totality of the circumstances turns on answers to factual questions such as: What was the nature of prior crimes? Where and when did the prior crime occur? What does the proprietor know about the prior crimes? The Court can only decide the question of reasonable foreseeability in "plain and palpable" cases.
Consequently, the Carmichael decision is expected to increase the frequency of trials for negligent security claims because the trial courts will be less likely to grant summary judgment. Even if liability is debatable on legal grounds, the outcome of these trials may hinge on intangible factors like sympathy and the likability of witnesses, especially in cases involving significant injuries. Therefore, those involved in handling such claims in Georgia must be well-versed in their breadth and scope.
Although some justices expressed concerns through concurring opinions about the scope the potential for increased liability of proprietors as a result of the Court's opinion, the concurring justices agreed that any significant modifications to the law would require legislative action by the General Assembly. This sentiment, echoed throughout the concurring opinions, coupled with the recent political discussion over tort reform in Georgia suggests that the upcoming legislative session in 2024 may be intriguing.
To access the full decision, please click here.
1 The Supreme Court of Georgia also addresses apportionment as it relates to intentional torts and whether a party rendering services in Georgia owe a duty of care in a premise liability case.