James Jan-Feb 2024 web - Flipbook - Page 79
TORT REFORM
A shopper slips on a banana peel
on the floor in the produce section
of a grocery store and tears a
ligament in her knee. A resident
steps in a hole on the grounds of
the apartment complex where he
lives and breaks his ankle. A child
drowns in a neighbor’s swimming
pool. These are classic examples of
incidents that are governed by the
law of premises liability.
Premises liability is the area of
the law that deals with the civil liability of an owner of property for
injuries sustained by people on the
property. The General Assembly
enacted the general premises liability statute in 1895, and for close to
a century it applied almost exclusively to incidents like the examples cited above. That is, incidents
caused by an allegedly hazardous
condition of the property.
Until the 1980s, application
of the premises liability statute
was largely confined to incidents
caused by physical defects on
property. Some early cases alleged
that a property owner was liable
for injuries caused by third-party
crime, but the property owners in
these cases usually were not liable
because the third-party crime was
considered to be the cause of the
victim’s injuries. In other words,
the third-party crime superseded the property owner’s alleged
negligence in failing to prevent the
third-party from committing the
crime. The few early cases where a
property owner was liable involved
a known third-party.
In the 1980s, the courts dramatically changed this longstanding view of liability for third-party
crime. Because third-party crime
committed by unknown perpetrators is not constant, it is a condition of the property only in the
abstract. It is a legal fiction created
by the courts to expand the scope
of the law of premises liability. Under this new expansive theory, the
occurrence of past crimes could
create a present hazardous condition that could trigger the property owner’s duty to exercise ordinary care to protect its invitees
from crimes committed by unknown third-parties at unknown
times. (An invitee is a person with
whom the property owner has a
mutually beneficial relationship.)
This made property owners liable
for crimes that the police were not
able to prevent either.
Under this much more relaxed
standard of liability, an owner
could be liable for third-party
crime on its property only if the
crime at issue was reasonably
foreseeable. Initially, a plaintiff
could prove reasonable foreseeability by presenting evidence of prior
substantially similar crimes on the
property of which the owner had
actual knowledge. The required
degree of similarity between the
prior crimes and the litigated crime
was strict at first, but the Georgia
Supreme Court loosened it in 1997
when it held that prior property
crimes can be substantially similar to a violent crime. This again
caused an expansion of the scope
of the law of premises liability.
This standard prevailed until
June 29, 2023, when the Georgia
Supreme Court loosened it further
by holding that the foreseeability
of a third-party crime must be
determined by the totality of the
circumstances. This new standard
is deeply flawed because it places
virtually no limits on the types
of evidence a jury may consider.
For example, to allow a jury to
consider crimes that occurred in
the surrounding neighborhood of
the owner’s property even though
the owner has no right or obligation to control crime on someone
else’s property. Thus, not requiring
evidence of prior substantially
similar crimes as a limitation on
liability will cause yet another expansion of the liability of property
owners for third-party crime.
The consequences of this new
standard are much worse than
simply enriching plaintiffs and
their attorneys. It greatly accelerated the trend of easing the burden of plaintiffs to prove liability,
and so the likelihood of property
owners being liable for third-party
crime is substantially increased.
Insurance companies are not in
the business of insuring against
virtually guaranteed liability, and
so they are reacting. For example,
some businesses that own and
operate apartment complexes or
gas stations no longer are able to
obtain general liability insurance
in Georgia, and for those that
still can obtain general liability
insurance, insurers are increasingly issuing such insurance only
if it excludes coverage for claims
that arise out of a crime or limits coverage for such claims to a
ridiculously low amount, such as
$25,000. Earlier this year, Donegal
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