Georgia CVS Pharmacy, LLC v. Carmichael

Facts

The Georgia Supreme Court recently issued an important decision in the area of negligent security claims. The decision involved several separate cases where the Court issued one collective decision:

• CVS v. Carmichael involved a negligent security claim against CVS arising out of a shooting during an armed robbery.
• Welch et al. v. Pappas Restaurants, Inc. et al. arose out of the death of a man who was killed during an armed robbery at Pappadeaux’s. 

The facts of each case are detailed below. You can also watch a short discussion of the case here: 

Carmichael

Plaintiff James Carmichael was shot during an armed robbery in a CVS parking lot. The jury ruled in favor of Carmichael, finding CVS was 95% at fault; Carmichael 5% at fault. The jury placed 0% fault on the criminal. The Court of Appeals affirmed the verdict. It concluded a reasonable jury could find the crime was foreseeable. It found no issue with the 0% assigned to the criminal because the jury considered the fault of the criminal and could have decided not to assign any fault to him. Also, the Court of Appeals concluded any error was harmless because this was a single-defendant case and apportionment would have only been authorized if multiple defendants had been parties. 

Welch

Anthony Welch was killed in an armed robbery in a Pappadeaux’s restaurant parking lot. Tactical Security provided security services to the restaurant by patrolling the parking lot pursuant to a contract with the restaurant’s owner. Welch’s surviving wife sued both the restaurant owner (Pappas) and Tactical. 

The trial court denied summary judgment to both Pappas and Tactical but the Court of Appeals reversed. The Court of Appeals held that the shooting was not reasonably foreseeable. The Court of Appeals further held that Tactical did not owe any duty to Welch under Section 324A of the Restatement (Second) of Torts.

Issues & Holdings

The issues in these cases were as follows:

1. In a negligent security case, to what extent is it the plaintiff’s burden to prove reasonable foreseeability of the underlying criminal act part of the elements of duty, breach, or causation?
2. Is reasonable foreseeability generally for the judge or the factfinder?
3. What is the legal test for determining reasonable foreseeability? 
4. When apportioning fault, can a rational factfinder determine that the criminal bears no fault for the injuries?
5. Does a party rendering security services to the owner or occupier of the property owe a duty of care to third parties under any of the bases set out in Section 324A of the Restatement (Second of Torts)?

The Court found:

1. Reasonable foreseeability is linked to the owner/occupier’s duty to keep the premises and approaches safe, but it may also inform the elements of breach and causation. 
2. The question of reasonable foreseeability is generally for the jury, but the judge can resolve the issue where no rational juror could determine the issue in favor of the non-moving party.
3. The totality of the circumstances is the test to determine whether an act was reasonably foreseeable.
4. Under the specific circumstances of this case, the verdict was not inconsistent where it apportioned no fault to the criminal.
5. A party rendering security services to an owner/occupier may owe a duty of care to third parties visiting the premises in accordance with the standard outline in Section 324A of the Restatement (Second) of Torts.

Reasoning

Reasonable Foreseeability

The Supreme Court held that reasonable foreseeability is part of the duty element. The Court reasoned that the duty to keep invitees safe from third-party criminal conduct arises only if the proprietor has reason to anticipate a criminal act. There is no duty to prevent a criminal act without foreseeability that the criminal act will occur. Thus, while there is a general duty to keep invitees safe, whether that specific duty extends to protect invitees against third-party criminal acts depends on whether the criminal conduct is foreseeable. 

The Court stated that reasonable foreseeability giving rise to a duty to protect is not sufficient to establish liability though. The elements of breach and proximate cause still have to be established. On the issue of breach, the Court stated that “the factfinder must weigh the likelihood and severity of the foreseeable harm against the cost and feasibility of additional security measures in considering whether the duty owed was breached.” Furthermore, “[i]f the trier of fact deems the proprietor’s security measures reasonable in light of the circumstances, or if the plaintiff fails to present evidence that the security precautions employed to protect against the particular foreseeable risk of harm violated the applicable standard of care, then there was no breach of duty, and there can be no finding of negligence.”

Who Decides Reasonable Foreseeability?

The question of duty is usually one for the court. But here, the Supreme Court concluded that the jury decides reasonable foreseeability. And as with any other jury issue, the court can only decide it as a matter of law when no rational juror could find in favor of the non-moving party.

The Court noted that the duty is imposed by statute, O.C.G.A. § 51-3-1. Because the existence of the duty depends on the presence of certain facts, the jury has to decide whether a third-party’s criminal attack was reasonably foreseeable. The jury would need to decide a variety of factual issues, including the nature of other crimes (if any) that previously occurred on or near the premises, where and when those crimes happened, what the proprietor knew about the crimes, and whether the knowledge proprietor had gave them reason to anticipate the harm that occurred. 

Totality of the Circumstances Test for Reasonable Foreseeability

This part of the decision may be the most notable because it provides clarification on the types of evidence that can be used to show reasonable foreseeability. The Georgia Supreme Court clarified its holdings in Sturbridge and Tyner, which courts had read to require that substantially similar prior crimes be shown to establish foreseeability. Sturbridge Partners, Ltd. V. Walker, 267 Ga. 785 (1997); Tuner v. Matta-Tronosco, 305 Ga. 480 (2019). Additionally, the Supreme Court noted numerous Georgia Court of Appeals decisions had held that substantially similar prior crimes were required. 

The Supreme Court concluded that there was no mechanical formulation to establish foreseeability. Instead, this determination must be made on a case-by-case basis. The facts may vary but “substantially similar prior criminal activity is typically central to the inquiry.” Past crimes may give rise to an act being reasonably foreseeable based on “location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” 

While the Court stated that prior criminal acts “will be part of the typical premises liability cases arising from third-party criminal conduct,” the Court rejected a bright-line rule that only specific kinds of evidence could establish foreseeability. In Martin v. Six Flags, 301 Ga. 323 (2017), the Supreme Court recognized that foreseeability of criminal acts “may” be shown through evidence of prior substantially similar criminal acts, in addition to a property’s location in a high crime area and evidence the landowner had knowledge of a “volatile situation brewing on the premises.”

In short, the Supreme Court concluded that a past crime is not an absolute, bright line requirement. The Court clarified that Sturbridge never held that a plaintiff must identify a past crime to establish reasonable foreseeability. Again, while substantially similar prior crimes “may often be one of the most probative considerations in answering that question,” other circumstances may be relevant as well.

Application of the Totality of the Circumstances Test to Carmichael and Welch

Carmichael

CVS employees who worked at the store testified the store was in a high-crime area and that employees and managers thought the parking lot was unsafe. Employees also testified that female employees were routinely escorted to their vehicles and employees parked near the building because of poor lighting. CVS had previously employed a security guard. After the security guard was discharged, there were three crimes at the CVS. Two involved armed robberies of employees inside the store (one of which was less than a month before this shooting and the other was approximately two years earlier), and one robbery of a customer in the parking lot (roughly six months before this shooting). 

CVS argued the three prior crimes were not substantially similar. It argued the in-store robberies involved employees, not customers. It also argued the parking lot robbery was dissimilar because it did not involve a weapon and the injuries from that robbery were less severe.

The Supreme Court rejected CVS’s arguments, reasoning that the crimes need not be identical to make a future criminal act foreseeable. The Court concluded that the proper focus was on “the proximity, timing, frequency, and similarity of the prior acts.” The Court observed that all the prior crimes “involved confrontational attacks on persons,” which a jury could find made this shooting reasonably foreseeable.

Because the Court applied a totality of the circumstances test, the Court did not just rely on the prior crimes to show foreseeability. The Court also relied on the evidence that female employees were regularly escorted to their vehicles, the store was in a high crime area, and that employees considered the parking lot dangerous. 

Welch

The Court of Appeals had held that Welch had not produced evidence of reasonable foreseeability. Welch responded and pointed to evidence of detailed police reports showing property crimes in the surrounding area, multiple break-ins at surrounding businesses, and the restaurant’s knowledge of an altercation nearby involving armed assailants. 

The Supreme Court concluded that the Court of Appeals’ analysis was “too rigid” and was not consistent with the totality of the circumstances test. 

First, the Court of Appeals “siloed off” evidence of past crimes from the other evidence in the case. The Court of Appeals had considered whether the evidence of prior crimes was sufficient to create a factual question of foreseeability. Then, after concluding it was not, it separately considered the restaurant’s knowledge of the prior crimes based on the frequency of the crimes, emails between the restaurant and the security company, or the testimony of the restaurant’s security manager. The Supreme Court held that the proper analysis considers all the circumstances together “to determine whether the proprietor had reason to anticipate the criminal act at issue.”

Second, the Court of Appeals erred in excluding the past crimes Welch relied on based on certain differences between those crimes and the one at issue in the case. The Supreme Court concluded that, even though the prior crimes were not identical to this one, the Court of Appeals should have still considered whether the prior crimes put the business on notice of a hazardous condition. The Court stated that the Court of Appeals should have considered evidence of a large number of break-ins at the restaurant, a vehicle break-in at a property down the street where a suspect fired shots, and evidence that suspects were armed in other incidents at surrounding properties. All of this evidence could have led a jury to conclude it was reasonably foreseeable that a vehicle break-in could “escalate to a violent encounter.”

The Jury Verdict Apportioning Zero Fault to the Criminal in Carmichael Was Not Inconsistent

The Supreme Court had originally planned to address the broader question of whether a jury verdict could rationally apportion 0% fault to the criminal. But upon evaluation of the record, the Court limited its analysis of this issue to the specific facts of this case. This was because the jury instruction in Carmichael only asked the jury to consider the negligence of third parties, not the fault or other non-negligent wrongful acts. The Defendant did not object to the charge. The Court reasoned that the jury could have found that the criminal—as an intentional tortfeasor—was not negligent in causing injury to the Plaintiff.

While the Supreme Court did pass on the broader question of whether a jury verdict can be upheld where 0% is apportioned to the criminal, the Court did express its concerns about such a verdict. The Court wrote,  “Generally speaking, we have doubts that a jury could logically determine both that a defendant is at fault for failing to protect against a third party’s intentional tortious conduct and that the third party is not at all at fault for his intentional conduct.” 

A Party Rendering Security Services May Owe a Duty to Third Parties Under Section 324A of the Restatement (Second) of Torts

In the Welch case, the Court of Appeals held that the third-party security company—Tactical—owed no duty of care to the Welches. It concluded that Section 324A of the Restatement (Second) of Torts for the negligent performance of a voluntary undertaking did not apply as a matter of law. The Supreme Court granted certiorari to address the issue of whether a security company that contracted with an owner or occupier of land owed a duty of care to third parties under Section 324A. The Supreme Court concluded that Section 324A could give rise to a duty to third parties and that the scope of the duty “may be informed” by the contract between the security company and the owner/occupier.

The Supreme Court noted that Georgia cases had held that Section 324A was an accurate statement of the common law. Under Section 324A:

One who undertakes, gratuitously or for consideration, to render services to another that he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. 

The Supreme Court observed that many cases had discussed voluntary undertaking claims under Section 324A in negligent inspection cases; however, Section 324A was not limited to those claims.

Because Section 324A did not have any limitations to a particular type of claim, the Court reasoned that there was no basis for excluding negligent security claims from its scope. Thus, while a security company could not be held liable under a premises liability theory, it could be held liable for the negligent performance of a voluntary undertaking under Section 324A. 

In analyzing these claims, the Court stated that the contract between the security company and the owner/occupier will need to be evaluated to determine whether the security company has undertaken the performance of duties owed by the other to third persons. 

Conclusion

The Supreme Court’s decision in Carmichael is an important one. While the defense bar and tort reform advocates will likely cite the decision as somehow expanding liability in an attempt to limit negligent security claims, the decision did not represent some sea change in the law. It simply provided clarification on several important areas.

The decision involved negligent security claims in particular, but some of the reasoning can be extended to other premises liability claims as well. For example, the Court’s analysis of Section 324A is important because, as the Court noted, that provision is not limited to any particular type of premises liability claim. It has broader applicability to all types of claims where there has been a voluntary undertaking.

If you handle premises liability claims, you should make sure you are aware of this decision. This is an important case for negligent security cases, but it is also important to the broader area of premises liability claims in general.

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Citation: Georgia CVS Pharmacy, LLC v. Carmichael, No. S22G0527 (S. Ct. Ga. June 29, 2023)