Shell Oil Company Et Al. v. Diehl., 205 Ga. App. 367, 422 S.E.2d 63 (1992)

Georgia Court Of Appeals, (September 08, 1992)

Docket number: A92A0970
DECIDED

CARLEY, Presiding Judge. - DECIDED
Permanent Link: http://vlex.com/vid/shell-oil-company-et-v-diehl-20440513
Id. vLex: VLEX-20440513

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Summary:

Judgment affirmed. Pope and Johnson, JJ., concur.

Citations:

Text:

Long, Weinberg, Ansley & Wheeler, K. Marc Barre, Stephen H. Sparwath, for appellants.

While an invitee on appellant-defendants' business premises, appellee-plaintiff was the victim of a criminal attack. As the result of injuries suffered in that attack, appellee filed suit against appellants. After discovery, appellants moved for summary judgment. The trial court denied appellants' motion, but certified its order for immediate review. The instant appeal results from the grant of appellants' application for an interlocutory appeal.

1. The evidence of record establishes that appellants have no liability to appellee under the theory that they knew or should have known that their business premises subjected invitees to the unreasonable risk of criminal attacks. Although there is evidence of prior criminal activity on appellants' business premises, it is undisputed that no similar criminal attack on a customer had ever occurred. Sa- vannah College of Art & Design v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991); Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281) (1987). Compare Lau's Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); Lay v. Munford, Inc., 118 Ga. App. 672, 673-674 (1) (165 SE2d 179) (1968).

There is no evidence as to what could have been done to protect appellee from injury once appellants' employee observed that the attack had begun. However, it cannot be inferred, from the failure of appellants' employee to act, that nothing could have been done. On summary judgment, all inferences are to be resolved against appellants and in favor of appellee. Summers v. Milcon Corp., 134 Ga. App. 182, 183 (4) (213 SE2d 515) (1975). Accordingly, construing the evidence most favorably for appellee, appellants have not met their burden of showing that "[t]his is not a case where [their employee] was aware of a 'dangerous condition' created by [third parties] and chose to do nothing about it. [Cits.]" (Emphasis supplied.) Bowling v. Janmar, Inc., 142 Ga. App. 53, 54 (234 SE2d 849) (1977). According to appellee appellants' employee made no "effort to quell the [attack] by personal interference or by calling on the police. . . . [If appellants' employee] had ample notice and opportunity to interfere and prevent the continuance and culmination of the [attack], but wholly neglected and failed to do so[,]" appellants would be liable. Adamson v. Hand, 93 Ga. App. 5, 9 (90 SE2d 669) (1955). "If[, on the other hand,] the [attack] and resulting injury happened suddenly and without warning and [appellants' employee] could not, by the exercise of reasonable care, have discovered or prevented it, there could be no recovery." Georgia Bowling Enterprises v. Robbins, 103 Ga. App. 286, 288 (119 SE2d 52) (1961).

Under the existing state of the record, "[t]his is a case where a jury must rule on the question of negligence and diligence. . . . What a reasonable and prudent man under similar circumstances [could and] would have done in the exercise of ordinary care [for the protection of appellee] is for a jury to answer." Adamson v. Hand, supra at 9. It follows that the trial court correctly denied appellants' motion for summary judgment.

Michael E. Bergin, Fredric W. Tokars, for appellee.

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