Premises Liability and Apportionment Following Martin v. Six Flags Over Georgia Ii, L.p.
| Publication year | 2017 |
Premises Liability and Apportionment Following Martin v. Six Flags Over Georgia II, L.P.
Madeline E. McNeeley
Jed D. Manton
A nineteen-year-old boy's innocent trip to an amusement park ended in a brutal beating and permanent brain damage. The boy's efforts to hold accountable those responsible for the tragedy ultimately resulted in much-needed clarification of Georgia's law regarding negligent security and apportionment of fault. It is now clear that a landlord can be held responsible for damages caused by criminal activity even when the damages occur beyond the four corners of the landlord's property. Likewise, Martin elucidates that errors in a jury's apportionment verdict can be retried without disturbing the verdict as to liability and damages.
Joshua Martin went to Six Flags Over Georgia on July 3, 2007 with his brother and a friend1 to celebrate the friend's admission to college.2
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Shortly before 9:00 p.m., as the amusement park's closing time approached, the trio left the park, went to use a nearby restroom, and returned to wait in front of the park for a Cobb County Transit (CCT) bus. They sat on a guardrail near the park's main entrance.3 The bus stop was around the corner at the intersection of Six Flags Parkway and South Service Road, about 200 feet from the park's property line and within the teens' sight.4
Earlier in the day, a large group of fifteen to forty young men gathered in the park. They had been running around, "yelling obscenities, and otherwise causing a commotion."5 Several of them, including some off-duty Six Flags employees, "accosted and threatened" two families, the Queens and the Tapps.6 When park security approached, the young men made finger-gun gestures and told Mr. Tapp and Mr. Queen to "watch your back" and "we'll get you in the parking lot."7 The security officers reprimanded some of the assailants but allowed them to go back into the park despite company policy stating that they should have been ejected. Shortly before closing time, the group of now approximately forty young men ran to the main exit in what was described as a "frenzy;" security guards followed them out, stood outside watching for a period, and then reentered the park. The group of young men remained on Six Flags property, gathering on the sidewalk outside the gates. When the Tapp and Queen families exited shortly thereafter, the group followed them and yelled at them. The families reached their cars and left, but the group was still actively planning to get into a fight.8
The group made their way back toward the area outside the main gate of the park, planning to fight someone at the bus stop. Within five minutes of abandoning the Tapp and Queen families, the group encountered Martin, his brother, and their friend at the guardrail. The boys went to the bus stop to try to escape, but one member of the group approached Martin and began beating him with brass knuckles. About eight other members of the group joined in—hitting Martin's brother and friend as well—beating and stomping Martin so badly that he was rendered comatose. Martin was in a coma for seven days and suffered severe injuries, including permanent brain damage.9
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Martin sued Six Flags10 on a negligent-security theory, as well as suing several individual assailants.11 Before the case was given to the jury, Six Flags sought to add additional nonparty assailants to the verdict form for purposes of apportionment of fault. The trial court denied this request, ruling "that it would only consider including individuals who had a criminal conviction related to the attack or who personally testified to their involvement."12
Based on the events of that night and evidence of a pattern of gang activity Six Flags failed to address or tried to conceal,13 the jury rendered a $35 million verdict in Martin's favor against Six Flags and four individual defendants.14 The jury apportioned the award 92% to Six Flags and 2% against each of the four liable individuals.15 Six Flags appealed the finding that it was liable to Martin and the trial judge's denial of its request to allow the jury to apportion fault to three nonparty assailants.16
A landowner "is liable in damages to [invitees] for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe."17 "The general rule is that a landlord is not an insurer of his tenant's safety; however, the landlord does have a duty to exercise ordinary care to prevent foreseeable third-party criminal attack upon" business invitees.18 "[I]f the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters."19
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In an ordinary negligent-security case, a landowner's liability turns on questions of foreseeability and superior knowledge; the matter of whether the criminal act even occurred on the premises and approaches will be straightforward.20 Martin, however, presented a more complicated scenario.21 The build-up to the criminal activity began within and immediately outside the park, but Martin was not actually beaten until after he moved off the property and away to the bus stop in an effort to escape the attackers.22
The court of appeals framed the issue as whether the CCT bus stop could be considered to come within the "approaches" of the Six Flags premises.23 Approaches generally include public ways that are "directly contiguous, adjacent to, and touching" the premises' entryways so they are "within the last few steps taken by invitees" when entering or exiting the premises and "a reasonable invitee would find it necessary or convenient to traverse" them in order to enter and exit.24 Prior case law demonstrated, however, that noncontiguous areas also could be deemed "approaches" under certain circumstances:
"[N]on-contiguous property can be deemed an approach because the landowner extended the approach to his premises by some positive action on his part, such as constructing a sidewalk, ramp, or other direct approach." . . . [T]his exception is premised on the fact that "the owner or occupier of land, for his own particular benefit, has affirmatively exerted control over a public way or another's property."25
The court reviewed the evidence and determined that under the specific facts of the case, Six Flags had exerted sufficient control over the CCT bus stop and public roadways—for example, directing customers to use the bus stop, constructing barricades and signs to direct foot traffic toward it, sending security staff to aid in directing traffic on the public streets leading to the park, and maintaining the pertinent stretch of roadway and sidewalk—that the bus stop could be considered an
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"approach," and that the jury correctly found Six Flags owed a duty to its business invitees who used the stop.26
The supreme court disagreed with the reasoning of the court of appeals.27 In its view, the facts did not support the conclusion that Six Flags had shown such a positive exercise of dominion over the bus stop and surrounding roadways as to bring them within the park's approaches.28 The court did not end its inquiry there, however. Instead, it reframed the question entirely: What happens to the landowner's duty if foreseeable criminal activity begins within its premises and approaches but the act is concluded, and the injuries inflicted, after the victim and attacker have moved outside the premises?29
The court decided that "[t]his case stands for the common sense proposition that a property owner does not escape liability for an attack that begins on its premises simply because the victim moves outside the premises before the attack is completed."30 Nothing in the statute required the victim's injuries to "be inflicted within the four corners of a landowner's premises and approaches in order for liability to attach."31 In fact, prior Georgia Court of Appeals cases such as Wilks v. Piggly Wiggly Southern, Inc.32 and Double View Ventures, LLC v. Polite33 had found landowner liability where an invitee stepped off the premises into a nearby footpath or vacant area.34 These cases recognized that a landowner's liability in a negligent-security case "from an attack that originates on the premises does not dissipate as soon as the invitee steps—or flees—off the property, so long as the invitee's injuries were proximately caused by the landowner's failure to exercise ordinary care in maintaining safety and security within its premises and approaches."35 The court expressly adopted the principle "that although the landowner's duty is to maintain safety and security within its premises and approaches, liability may arise from a breach of that duty that proximately causes injuries even if the resulting injury ultimately is
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completed beyond that territorial sphere."36 In this case, the court held that Six Flags owed a duty to Martin and that the jury's finding of liability was sound.37
While not a dramatic shift in premises-liability law, this holding is, as the court notes, a common-sense approach to landowner liability for conduct completed off the landowner's premises and usefully clarifies the reach of prior case law. The CCT bus stop was about 200 feet from the Six Flags property line, down the street and around the corner from the entrance to the park38 —significantly further removed than the footpath at issue in Double View Ventures.39 The decision in Martin makes clear that when an attack arises from foreseeable criminal activity on a landowner's property, but the attack spills off the premises or the victim attempts to flee, the landowner may not claim that mere lack of proximity of the final act absolves the landowner of...
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