Padgett et al v. Kmart Corporation et al, No. 3:2015cv00048 - Document 69 (S.D. Ga. 2016)
Court Description: ORDER granting 41 & 44 Defendants' Motions for Summary Judgment. The Clerk of Court is DIRECTED to enter the appropriate judgment and to CLOSE this case. Signed by Chief Judge Lisa G. Wood on 11/15/2016. (csr)
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Padgett et al v. Kmart Corporation et al Doc. 69 iftt Mmteli States! IBisitrict Court for tllie ^ontl^em Bisstritt of ideorgta Bitbltn Btiitoton TAMMY PADGETT and JOEY PADGETT, Plaintiffs, V. CV 315-48 KMART CORPORATION and COLONY MILL ENTERPRISES, LLC, Defendants. ORDER Plaintiffs bring a Tammy premises Corporation Padgett liability (^'Kmart") the evening of her claim husband, against Joey Padgett that occurred in a December 21, Padgett, Defendants and Colony Mill Enterprises, from an assault on Mrs. on and 2013. Kmart LLC arising parking lot Plaintiffs seek compensatory and punitive damages. Defendants 41, 44. filed Motions for Summary Judgment. The parties fully briefed both. Dkt. Nos. Dkt. 52, 54, 62. Defendants also objected to Roger Hasty's testimony. Nos. 61, EXCLUDE 62. in For the part the reasons set testimony forth below, of Roger the Hasty Nos. 61, Dkt. Court will and GRANT Defendants' Motions for Summary Judgment (Dkt. Nos. 41, 44). A0 72A (Rev. 8/82) Dockets.Justia.com FACTUAL BACKGROUND The Night Mrs. Padgett Was Attacked Living ten miles down the street, away and having a Mrs. Padgett shopped at Kmart ^'a couple times a week." December 21, of Id. the 2013, front Dkt. No. at about 6:00 p.m., entrance at 39:21-43:10. toward family business her car, the 44-7, Mrs. Dublin, just Georgia 28:19-29:17. Padgett walked out carrying several bags. Her car was parked approximately 157 feet and eight or nine spaces away from the entrance sidewalk. at 32:10-15; Dkt. No. 41-2, The evening was dusky, 40:2-6. Mrs. On Padgett did Id. 21:15-16. but not yet dark. not ''pay[] any Dkt. No. attention" 44-7, to the parking lot lights to see if they were on and working properly. Id. at 40:7-20, dark in 42:16. [the Kmart] Though she noted that "'it's always been parking lot," this never deterred her from nighttime shopping. know how many lights Dkt. No. are 54-2, 41:23-42:11. She does not in the parking lot and never noted whether one was malfunctioning. Dkt. No. 44-7, 42:2. An Assailant Attacked Mrs. Padgett When Mrs. Padgett got to her car, she leaned into the front passenger seat to arrange what she had bought. 48:2-3. her head. her car, She heard a Id. clink and felt at 48:3-14. squatted near her, Dkt. No. 44-7, something hit the back of An unknown assailant shoved her into and partly shut the car door. Id. at 48:2-49:4, 51:11-53:4. He threatened to cut Mrs. Padgett (he had a knife), repeatedly beat her head and face, and smashed her head into the 65:20-66:8. dashboard. He Dkt. robbed Mrs. fleeing on a bicycle. No. Padgett 52-2, of a 57:22-23, few 61:5-13, dollars before Id. at 56:14-15, 58:18-19, 67:16-23. The incident lasted about ten minutes. Id. at 59:21. Mrs. Padgett never cried out or screamed, but once the attack was finished, two she noticed that at least cars that had parked nearby before the attack had been driven away. 60:13-18, 61:2-4. Mrs. Id. at Padgett immediately drove to the front entrance of Kmart and alerted bystanders of the assault. 67:24-69:11. Because consciousness, personnel. Mrs. she Padgett emotional injuries. Mrs. does Id. at 69:16, been Padgett not recall was "'in speaking and with Id. at out" any of store 71:18-22. suffered severe and permanent physical and Id. at 78:6-80:3, 84:18-21, 86:1-97:24. Neither Mrs. Padgett nor Kmart Knew of Prior Parking Lot Attacks Mrs. Padgett does not know of anyone else being attacked in the parking Padgett had lot. Id. not even at 99:24-25. known of Before any physical between a customer and anyone else there. Vicki Dkt. No. Wheeler managed the 41-7, 34:23-35:9. store her attack, Mrs. confrontations Id. at 29:23-30:5. the night of the attack. She was at the service desk by the front door and said that she ^'always tried to keep a pretty good eye out of what was going on." She did not receive Id. at 35:1-8; 70:14-15. any reports of suspicious loitering in the parking lot prior to the assault. 70:7-23. No parking lot. never one complained about Id. at 69:22-70:6. another incident, other should suggest that we . at 76:4-6. data, Kmart Wheeler . November 2013, dkt. than shoplifting, that had she known of the beside lot the where area I Id. crime and been who managed the Kmart from October 2012 to no. 52-6, 8:10-12, complained about other in Dkt. No. 52-3, 25:2-10. does id. prior incidents occurring in the parking lot. customers to engaged the police department complaints about the parking lot lighting, Rather, lighting Wheeler stated that ''there was more proactive about customer safety. Brandon Cowart, Id. at 67:8, . needed [additional security]." testified would have inadequate persons stores. Id. lighting at not recall at 21:3, Id. or any at 14:8-15. in another 21:3-7. any Cowart end of did not observe any safety issues in the parking lot that prompted him to change the status quo. Plaintiffs maintain, Id. at 42:20-25. however, that Kmart effort to learn of parking lot safety issues. 11 (alleging "Kmart's willful ignorance"). never Dkt. No. made an 54-1 at Colony Mill Is Responsible for Kmart Parking Lot Safety The Kmart Dkt. No. is 44-1, in a shopping center owned by Colony Mill. 5:22-6:18. The center sits on approximately 8.32 acres and contains about 104,326 square feet of leasable space. Dkt. No. 34 at 6. There are around 323 Kmart is one of six retailers. 44-1, 6:9-18; Fred's are Colony Mill. Kmart's Dkt. also No. 44-7, located in Dkt. No. 33:12-13. the parking spaces. 41-10, 10:3-4; Dkt. Id. No. A Dollar General and a center, but do not lease from Dkt. No. 64-4, 47:7-8; Dkt. No. 54-4, 10:5-12. lease assigned parking lot maintenance and safety to Colony Mill: [T]he following maintenance . . . shall remain [Colony Mill's] sole responsibility: . . . . [A] 11 repairs and replacement including resurfacing (exclusive of sweeping, striping and snow removal) necessary to maintain all driveways, sidewalks, street and parking areas free of all settling, clear of standing water, and in a safe, sightly and serviceable condition, free of chuck holes, fissures and cracks. . . . [Colony Mill] shall contract for sweeping, striping, and snow removal for the parking areas, driveways, sidewalks and streets of the premises and maintain same in a clean, safe, sightly and serviceable condition. Dkt. No. 44-3 H 15. Christopher McGarry, understood Colony Mill's the place well-lit and are made on Dkt. No. [sic] 41-10, a Colony responsibilities . . . mak[ing] timely fashion 12:2-5. Mill's property to include sure [that] manager, ^^keep[ing] the repairs of the parking lot Colony Mill's owner, lights." Don Schleicher, confirmed that Colony Mill must provide ^^standard lighting, enough lighting for people to be able to see their way back to their cars." Dkt. No. 41-12, 8:14-16. Plaintiffs Sue Kmart and Colony Mill On May removed to 29, this 2015, Plaintiffs' Court. Dkt. suit against Defendants was No. 1. Plaintiffs allege that Defendants ignored ^^overwhelming evidence of danger" that made a violent parking lot crime reasonably foreseeable. 9. Dkt. No. 15 H They rely on data showing that between 2005 and 2014, there were 297 incidents involving police at the Kmart. 11. Of these, 33 resulted in felony charges, Id. HI 6, 9— 18 involved a physical altercation, 65 occurred in the parking lot, 8 involved a weapon, 10 involved a parking lot robbery, suspicious person in the parking lot. Plaintiffs hired Jeffrey Gross, expert. Dkt. visibility No. 33-1. security Id. K 6. a retail parking lot safety He testified that patrols could and 10 involved a have [t] he use of high alerted a potential perpetrator of an increased chance of detection and apprehension while committing undesirable or illegal acts," id. at 3 H 5, and that a [m] ore likely than not had Kmart or Colony [Mill] provided high visibility patrol of would not have been attacked." Defendants' the Court's Motions review. [the] parking lot, Mrs. Padgett Id. at 4 ^ 10. for Summary Judgment are now ripe for LEGAL STANDARD Summary judgment is required where ^^the movant shows that there is movant Civ. no is P. 56(a). V♦ dispute entitled to outcome of Grp. genuine A fact (1986) ) . is the suit under Anderson v. to any material judgment as FindWhat. com, (quoting as a 658 Liberty if it '^might governing law." F.3d and the matter of law." ^'material" the fact 1282, Lobby, 1307 Inc., Fed. R. affect the FindWhat Inv^ r (11th 477 Cir. U.S. 2011) 242, 248 A dispute is ^^genuine" if the ^^evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw Johnson 501, all v. 507 reasonable Booker T. inferences Washington in Broad. that Serv., party's Inc., favor. 234 F.3d (11th Cir. 2000) . The movant must demonstrate the absence of a genuine issue of material fact by showing the court that there is an absence of evidence to support the nonmoving Corp. V. Catrett, 477 U.S. 317, 323, 325 If it does so, burden shifts beyond the that a genuine issue of fact does exist. 257. pleadings the and present It can do so in two ways: party's Celotex (1986). to the affirmative First, case. nonmovant evidence Anderson, to to go show 477 U.S. at the nonmovant ^'may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, ignored' by the moving party, which was ^overlooked or who has thus failed to meet the initial burden of showing an absence of evidence." V. City of Atlanta, Celotex, the 477 U.S. nonmovant 2 F.3d 1112, 1116 at ^'may 332 (Brennan, come sufficient to withstand a (11th Cir. 1993) J., forward Fitzpatrick (quoting dissenting)). with Second, additional evidence directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. Where the nonmovant instead attempts to carry this burden with nothing allegations, more ^^than repetition of Morris v. Ross, 663 conclusional [is] not only F.2d 1032, 1033-34 1981). In Georgia premises liability cases, granted [her] summary judgment for the defendants proper but required." (11th Cir. a only undisputed." when the evidence Robinson v. is Kroger Co. , ''summary judgment is plain, palpable, 493 S.E.2d 403, 414 and (Ga. 1997). DISCUSSION I. Hasty's Affidavit Is Partially Excluded Defendants affidavit disclose of argue that him. the Court Roger Hasty because Dkt. No. Plaintiffs respond that: within this disclosed 61 (1) at should not Plaintiffs 16—18; consider failed Dkt. No. 62 to the timely at 1—4. Hasty was identified because he is category of "police officers who were called to Kmart from 2005-2015 dkt. is no. 64 at 2 listed ^'an (citing Dkt. No. innumerable Defendants, 64-1 at 4); number Plaintiffs sent to Defendants, and (3) {identified in police reports)/' of id. times" at 3 (2) in Hasty's name police (citing Dkt. No. during three different depositions, whether the individuals knew Hasty. reports Id. at 4 64-3); queried (citing Dkt. NO. 64-4, 46:5-25; Dkt. No. 64-5, 15:17-19; Dkt. No. 64-6, 31:3-5). The Court will only partially exclude the testimony, because the content of Hasty's testimony was partially disclosed during a deposition.^ Federal Rule of Civil Procedure 26(a)(1)(A)(i) obligates disclosures: [A] party must, without awaiting a discovery request, provide to the other parties: . . . the name . . . of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses . . . . Rule 26(a)(1)(C) sets the deadline for such disclosures as ^^at or within 14 days after the parties' Rule 26(f) The No. analysis 5:13-CV-369, helpful. of Bush v. Gulf 2015 WL 3422336 Coast (N.D. The Bush plaintiffs named a Electric Fla. ^ Plaintiffs correctly argue that Id. at 1. "a motion to Cooperative, May 27, witness as a former supervisor in their initial disclosure. procedurally improper." conference." 2015), plaintiff's Id. at *3. strike an is This affidavit is The Court therefore denies Colony Mill's motion to strike and instead "consider[s] [it] insofar as i t is a notice of objection." Hawk v. Atlanta Peach Movers, Inc., No. 1:lO-CV-0239, 2011 WL 1533024, at *2 (N.D. Ga. Apr. 21, 2011), aff'd, 469 F. App'x 783 (11th Cir. 2012) (per curiam) (unpublished opinion); see also Zottola v. Anesthesia Consultants of Savannah, P.C. , 169 F. Supp. 3d 1348, 1357 (S.D. Ga. 2013) ("[Cjourts tend to treat motions to strike as objections . . . ."). ''general disclosure" was " [t]here [was] nothing . that [the witness] Plaintiffs plaintiffs called to and appropriate," but . that would alert the opposing party initially Bush. Hasty, but rather, were . common had material information." here in "both Their disclosed general Id. even less disclosure than did not the name the entire category of "police officers who Kmart between 2005-2015." This did not alert Defendants that Hasty had material information. In Bush, the plaintiffs' inadequate initial disclosure triggered an "affirmative obligation" to identify the witness in interrogatory responses. Id. The plaintiffs' resulted in an unacceptable "surprise witness after the close of discovery." Id. failure to do so . . . identified Likewise, Plaintiffs failed to satisfy their affirmative obligation to identify Hasty as a material witness in their interrogatory responses. However, Hasty was discussed during Wheeler's Padgett's attorney asked the following question: [sic] "Roger Hasting with the Dublin police department says that he told Kmart, somebody at Kmart, that he thought the lighting was inadequate, and he thought other officers had said that, you ever heard that?" should deposition. have put Dkt. No. too. 64-4, 46:25-47:4. Defendants on notice that . . . [H] ave This question Hasty "had discoverable information related to" parking lot lighting. Ojeda-Sanchez v. Bland Farms, LLC, 10 No. 6:08-CV-096, 2010 See WL 2382452, at *2 (S.D. Ga. June 14, 2010) (''From [a deposition] exchange. Plaintiffs should have been aware that [a witness] had discoverable information related to the topics testified to in his affidavit. [him] Civ. Defendants were thus in their Rule 26 disclosures P. 26(e) obligation not . . required to . see also Fed. (advisory committee's note) to provide supplemental or ("There is corrective that has been otherwise made known to the parties the discovery disclosed process, is as when identified deposition . . . ."). a Hasty's therefore be INCLUDED witness during the ... . not . no . during previously of testimony summary R. information taking affidavit in the Court's identify a will judgment analysis insofar as it discusses lighting. Beyond this, Fed. R. Civ. witnesses P. and information). 37(c) (1), however. 26 (a) (1) (A) (i) the subjects Pursuant "[i]f a the . . . failure to . . testimony is EXCLUDED. (requiring regarding Federal party fails required by Rule 26 (a) that Hasty's . to . disclosure which Rule . . of they Civil identify a substantially both possess Procedure witness as the party is not allowed to use witness to supply evidence on a motion was of See justified or is . . . unless harmless." The Court considers three factors in determining whether to exclude an the (2) undisclosed the reason witness: for the "(1) importance [plaintiffs'] 11 of failure the to testimony; disclose the witness earlier; and the witness . . . (3) [is] the prejudice to the opposing party if allowed to testify." V. City of Tampa, 378 F. App'x 917, These factors critical—Plaintiffs favor need 920 (11th Cir. 2010). exclusion. it to Peters Towing Co. Hasty's create a testimony question of is material fact as to whether Kmart knew of violent parking lot crime. Plaintiffs lack justification. They aver deponents were asked whether they knew Hasty. that Dkt. No. three 64 at 4 (citing Dkt. No. 64-4, 46:5-9; Dkt. No. 64-5, 15:12-21; Dkt. No. 64-6, 30:20-31:5). disclosure Int'l Univ. (S.D. Fla. that federal Bd. Jan. This of 23, is not the clear litigation demands. 06-21936, See Berry v. WL the classic 2008) (^'For years Courts throughout the land television game 203362, Fla. No. ^trial by ambush.' purpose of discovery is eliminating surprise."). of unequivocal Trs., have been charged with eliminating 2008 and show What's at *2 A major It is mimicry My Line?, wherein panelists would ask a series of ^^yes or no" questions to discern their guests' occupations. See What's http://www.imdb.eom/title/tt0042168/ 2016). That sort of guesswork might be fit amusement. with (last But playing it 21 would be absurd questions to burden mid-deposition My Line?, accessed IMDb, Nov. 8, for half an hour's Defendants' to suss counsel out the significance of every person who receives even the most fleeting mention. That Plaintiffs asked 12 a few witnesses if they knew Hasty cannot stand as justification for covering up a star witness until his testimony appeared—voila!—in defending against summary j udgment. Finally, Defendants will suffer considers Hasty's entire affidavit. prejudice if the Court ''^Prejudice generally occurs when late disclosure deprives the opposing party of a meaningful opportunity to perform discovery and depositions related to the documents or witness in question." Gainesville, Apr. 4, 2012); App'x 919, 22788, No. 923 2011 1:10-CV-177, 2012 WL 1130074, see also Nance v. (11th Cir. WL 2010); 1769097, Berryman-Dages v. at at *2 Ricoh Elecs., Alvarado v. *1 (S.D. (N.D. Inc., U.S., Fla. City of Fla. 381 F. No. 10-CV- 4, 2011). May Defendants had no opportunity to depose Hasty before moving for summary judgment parking lot later. because crime Plaintiffs testimony until did not disclose approximately The Court may exclude such testimony. Hasty's five weeks See Pete's Towing Co., 378 F. App'x at 920 (upholding district court's decision to exclude plaintiffs its testimony after summary defendants' judgment motion") . papers ^'filed five-weeks For these reasons, the after affidavits the with filing of the Court will EXCLUDE Hasty's testimony as to issues other than lighting. II. Summary Judgment Is Granted to Defendants A premises [proprietor] was liability claim arises negligent in keeping 13 from its ^'the claim that premises safe a for invitees." Chester v. Retail 2003 WL 26085880, at *6 Prop. Tr. , No. 1:Ol-CV-0787-JEC, (N.D. Ga. Mar. 12, 2003). In Georgia, a plaintiff must prove four elements: (1) a legal duty to conform to a standard of conduct raised by the operation of law or contract; (2) a breach of causal this standard; connection (3) between resulting injury; and (4) a legally the attributable conduct and some loss or damage flowing to the plaintiff's legally protected interest result of the alleged breach of legal duty. Id. the as a (citing Brown v. RFC Mgmt., 376 S.E.2d 691, 693 (Ga. Ct. App. 1988)). Plaintiffs fail to do so as to both Defendants, and so summary judgment will be granted in Defendants' favor. A. Kmart's Motion for Summary Judgment (Dkt. No. 41) i. Kmart Facts Pertaining to Kmart's Motion employed and employees. entering door. and Dkt. five security measures to protect patrons At night, employees were prohibited from either exiting No. the building instructed or opening never pursue the back 16:7-9. were Employees 41-7, alone to criminals or intervene in physical altercations occurring beyond the entrance sidewalk. the Dkt. No. 41-8, police—to prevent their own wrongdoing. 16:23-17:9. further Rather, they were to call injury and avoid accusations of Id. Employees were instructed to never pursue shoplifters into the parking lot. the criminal to Dkt. No. 41-7, the authorities 14 77:5-23. instead. They were to describe Id. at 77:5-9; Dkt. No. 41-9, 12:6-15:7. That said, several incident reports note that an employee pursued shoplifters into the parking lot. Dkt. No. 52-9 at 5-6, When 9-11. opening and closing the store, management employees and key holders inspected the store's exterior perimeter. No. 41-7 at See Dkt. 28:15-33:5. Finally, Kmart technicians performed semiannual inspections in April and October 2013, featuring a walking inspection of the store's exterior—and assessment of the parking lot and security lighting. Dkt. deficiencies or Mill. No. Dkt. No. 41-8, 43:19-24; recommendations 54-1 at 7. Dkt. would be No. 54-1 at 7. Any addressed with Colony Colony Mill was responsible for ensuring that lights would be serviced or replaced as reports came in. Id. at 8. The record is devoid of evidence that such reports were ever made. ii. Dkt. No. 54-4, 15:25-16:3. The law a. Kmart owed no duty to Mrs. Padgett Kmart the first Padgett a primarily argued negligence duty. that Plaintiffs element—proving The Court agrees. failed that O.C.G.A. Kmart to satisfy owed § 51-3-1 is basis for determining whether Kmart owed Mrs. Padgett a duty: Where an owner or implied invitation, occupier of land by express or induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his 15 Mrs. the failure to exercise ordinary premises and approaches safe. Several here. statutory care possibilities in are keeping clearly Kmart does not own the parking lot. the inapplicable Colony Mill does. Mrs. Padgett, then, was not injured on Kmart's premises. The questions that remain are whether Mrs. Padgett was injured on Kmart's approaches or Kmart occupied the parking lot. Neither possibility holds true. 1. Mrs. Padgett was not injured on ^ a r t ' s approaches. The parking lot area where Mrs. Padgett was attacked is not part of Kmart's approaches. Georgia case law defines "'approach" as including public ways that are [d]irectly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to purpose, could come and foresee upon his through a premises which such reasonable for owner invitee any or would lawful occupier find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended. [The adjacent to, and touching" . within the last few steps words] "contiguous, . . mean that property taken by invitees, as opposed to "mere pedestrians," as they enter or exit the premises. Motel Props., Inc. v. Miller, 436 S.E.2d 196, 198 (Ga. 1993) (citations and punctuation omitted). "[A]n approach to a . . . store includes the immediately in front of and adjacent to the premises . 16 "sidewalk . . , but it lot [does] not include the landlord owned and maintained parking adjacent S.E.2d 316, Isaac, to the 317 (Ga. sidewalk.'" Ct. App. 582 S.E.2d 476, 477 Drayton 2009) v. Kroger Co., (quoting Food Lion, (Ga. Ct. App. 677 Inc. v. 2003)); see also Motel Props., Inc., 436 S.E.2d at 199 (same). The parking lot is beyond Kmart's entrance sidewalk, and it is owned and maintained by Colony Mill. Dkt. No. 44-7, 32:10- 15; Dkt. No. 41-2, 21:15-16; Dkt. No. 44-3 H 15; Dkt. No. 41-10, 12:2-5; Dkt. No. 41-12, 8:14-16. It is not an approach. Plaintiffs respond that Kmart owed a Piggly 1993). could Wiggly There, be Southern, Inc., 429 duty under Wilks v. S.E.2d 322 (Ga. Ct. the Georgia Court of Appeals held that a held liable even given ''unrebutted App. store evidence establishing that it was not the owner or in control of the area in which [the plaintiff] was attacked nor was it responsible for maintaining the lighting in the area." Id. at 323. But the defendant store in Wilks knowingly ^'permitted [the attackers] loiter on [its] premises, lying in wait for their victims." Kmart did nothing similar to imperil Mrs. Padgett. to Id. Kmart did not owe her a duty under an approaches theory. 2. Kmart did not occupy the parking lot. Neither did Kmart owe Mrs. lot's occupier. Padgett a duty as the parking Plaintiffs argue that Kmart occupied the lot by 17 maintaining ^^at least two or three cart corrals" there, employees help customers keeping an eye on the people. carry lot goods for to lighting their issues having vehicles, and or suspicious Dkt. No. 54 at 15-17, 20-21; Dkt. No. 54-6, 18:22-23. Georgia courts have not clearly explained how much activity a party needs to undertake to become an occupier. Gen. Growth Props., (S.D. Ga. Dec. between rulings control over Inc., 29, No. CV 114-175, 2014) {noting restricting property and possible that '"occupiers" category for those who rulings are in hold 2014 WL 7392516, ^'apparent occupation to reaching the most Ishmael v. inconsistency" those with others). statute as the sticks of at *3 a legal It is catch-all that the property-rights bundle comprises, but happen to lack fee simple for one reason or another. At the very least, role over the property. an occupier has to have a As five cases make clear, supervisorythis means doing more than Kmart did with the parking lot: In Poll V. 2460769, at *4 Deli Management, (N.D. Ga. Aug. Inc., 24, No. 2007) 1:07-CV-0959, 2007 WL (citations omitted), a sister district court noted the possibility that occupiers could include "managers charged maintenance contractors, with maintenance and security personnel." duties, other Kmart was not charged with parking lot maintenance duties under its lease with Colony Mill, and i t certainly was not a maintenance contractor. 18 Nor did it serve as Colony Mill's security team, even if its employees occasionally pursued shoplifters into the lot. In Westmoreland v. 2008), the Georgia occupied a Williams, Court of 665 S.E.2d 30 Appeals held (Ga. that Ct. a App. defendant building by hosting an exclusive party inside and buzzing people in. Kmart could not exclude anyone from the lot, as parking space was shared by six businesses. In Gregory v. Trupp, 319 S.E.2d 122, 124 (Ga. Ct. App. 1984) , the Georgia Court of Appeals held that a defendant might have occupied a vacant lot given that it had a contract to mow the grass; trash, that that its employees ^'regularly went . . . to pick up trim bushes, [an maintain shrubs, employee] on vacant a one ordered called the police and had them remove a boy from the [an employee] on occasions, employee] to pick up trash." that, of off and that lot; number children vacant lot; the had, and pick up pine cones; occasion, [an regularly went upon the lot Kmart had no contractual maintenance duties.. There is no evidence that its employees tidied up the lot. To the extent that employees were told to call the police regarding lot activity, this is distinguishable from Gregory. Gregory held that a party might be signaling special interest in a vacant lot trespassers. by But going it is through the unsurprising trouble of that Kmart phoning in authorized employees to contact police regarding the parking lot it shared 19 with others. Doing so did not signal special interest in the lot as much as it did common sense and neighborliness. In Scheer v. Cliatt, 212 S.E.2d 29, 31 (Ga. Ct. App. 1975), the Georgia Court of Appeals listed factors for occupation: ^'Who managed the daily operations of the [property] the right to admit or exclude customers? repaired the premises? . . . the parties under the lease?" finding Who had Who maintained and What were the responsibilities of Each of that Kmart occupied the lot. these weighs against Kmart had no management role over the lot's daily functioning. admit or exclude parkers. ... 7 Kmart had no right to It did not maintain or repair the parking lot, but rather, referred all such needs to Colony Mill. Lastly, 2010 Ott WL 582576, manager might V. at count Wal-Mart *2 (M.D. as a Stores, Ga. Inc., Feb. building 16, No. 5:09-CV-00215, 2010), occupier held because that he a ^'was responsible for making certain that there were no defects in the ceiling cleaned, . . . , checking In some respects, the parking lot was similar. In Ott, any puddles on the floor were and ensuring that zoning and safety sweeps were being properly performed." and ears that Kmart's relationship to It did serve as Colony Mill's eyes in checking for defects. But context the manager was an employee of the job duties included building safety. 20 Id. is everything. landowner, and his Kmart is not Colony Mill's employee. It is its tenant. And its lease does not impose upon it the duties of parking lot maintenance and safety. Kmart did not occupy the Kmart's approaches.^ lot. Nor was the lot part of Thus, Kmart did not owe Mrs. Padgett any duty, and summary judgment for Kmart is appropriate. b. The attack on Mrs. reasonably foreseeable Padgett was not Kmart would be entitled to summary judgment even if it had owed Mrs. Padgett a duty, because the attack on Mrs. Padgett was not reasonably foreseeable. 'MA]n owner or occupier protect an invitee against the criminal act of a only to the foreseeable." Ct. App. extent B—T, Two, 2011) . Plaintiffs. that the criminal Inc. v. Bennett, act must third party is reasonably 706 S.E.2d 87, 92 (Ga. The burden of proving foreseeability lies on Gordon v. Starwood Hotels & Resorts Worldwide, Inc., 821 F. Supp. 2d 1308, 1313 (N.D. Ga. 2011). Prior establish crimes in the foreseeability parking and lot there were is no too dissimilar genuine issue to of material fact regarding the lot's lighting. ^ Because occupation depends on how and how much Kmart used the parking lot, the discussion above equally responds to Plaintiffs' argument that Kmart "extend[ed] [its] approach[es] due to some ^positive action on [its] part.'" Dkt. No. 54 at 18 (quoting Motel Props., Inc., 436 S.E.2d at 198; (quoting Elmore of Embry Hills v. Porcher, 183 S.E.2d 923, 925 (Ga. Ct. App. 1971))). See Motel Props., Inc., 436 S.E.2d at 199 ("[E]ven assuming . . . that the sidewalk past the motel's property constituted an extension of the approach . . . [the plaintiff's] fall did not occur on the sidewalk but instead occurred on rocks some 27 feet past the end of the sidewalk at a location over which the motel exercised no positive control. We reject the argument that the duty imposed on owners and occupiers of land . . . extends to what at best is an approach to an approach."). 21 1. Prior crimes were too dissimilar. Plaintiffs must show that the attack was ^'substantially similar to previous criminal activities occurring on or near the premises such precautions Coll., that to Inc. V. a reasonable protect Clark, Prior crimes must: invitees person would take from the risk." 616 S.E.2d 468, 470 (Ga. "(1) ordinary Agnes Ct. App. occur at comparable locations; and (4) not be too remote in time." 2005). (2) under similar physical circumstances and conditions; similar type; Scott (3) occur be of Gordon, 821 F. Supp. 2d at 1313. Plaintiffs rely on all crimes that occurred in either Kmart or the parking lot between February 24, 2013. Dkt. inside Kmart. No. 54-15. But the 2008, majority and December 21, of these occurred They did not occur in a similar location. Of the 65 crimes in the lot, only two^ were similar in both type and physical circumstances and conditions. The first occurred in December 2008; a victim was mugged by someone with a gun. Dkt. No. 54-15 at 3. thief "snatched" a "towards the The second was in July 2012, when a purse "from rear of Kmart." [a victim's] Dkt. No. shoulder," then ran 54-15 a t 9. ^ Nonviolent property crimes—including shoplifting, theft by taking, criminal damage to property, and damage to vehicles—did not place Kmart "on notice that customers were in danger of being the victim of violent criminal activity in the parking lot." Drayton v. Kroger Co., 677 S.E.2d 316, 318 (Ga. Ct. App. 2009) ; see also Doe v. Prudential-Bache/A.G. Spanos Realty Partners, Inc., L.P., 492 S.E.2d 865, 614 S.E.2d 793, 795-96 867 (Ga. (Ga. Ct. App. 1997); Baker v. 2005); Gordon, Simon Prop. Grp., 821 F. Supp. 2d at 1314; Agnes Scott Coll., Inc., 616 S.E.2d at 471; Whitmore v. Bank of Brunswick, 484 S.E.2d 708, 710 (Ga. Ct. App. 1997). 22 First Fed. Sav. These incidents occurred too remote in time from Mrs. Padgett's attack—the first, more than five years prior, and the second, more than eighteen months prior. The second incident was also dissimilar in type to the attack on Mrs. there is no indication that the thief threatened, Padgett, as assaulted, or injured the victim when he stole her purse. Plaintiffs have no evidence that prior crimes were similar enough to make Mrs. Padgett's attack reasonably foreseeable. 2. The lot's lighting does not establish foreseeablllty. Plaintiffs foreseeable was also argue that Mrs. Padgett's attack because Kmart knew that the parking lot's inadequate. Dkt. No. 54 at 27. They rely on was lighting Hasty's affidavit, which states: I, along with other members of the Dublin Police Department, was concerned about the inadequacy of lighting in the parking area outside the K-mart store. On at least one occasion prior to December 21, 2013, I notified K-mart employees that the inadequate lighting in the parking lot created a dangerous condition. I did this because I was concerned that a customer would get hurt. Through [leaving the Dublin police in] September 2012, I never saw this lighting deficiency corrected. Dkt. No. 52-8 H 8. Even assuming this to be true, judgment. '^MTJhere is Kmart is entitled to summary no liability . . . [where] the has as much knowledge of the danger as the proprietor." 821 F. Supp. 2d at 1315 (citing Pound 23 v. Augusta invitee Gordon, Nat'l, Inc., 279 S.E.2d 342, 345 (Ga. Ct. App. 1981)). Mrs. Padgett understood the lot's darkness at least as well as did Kmart. Mrs. Padgett was highly familiar parking lot, and the neighborhood. had a family 29:4-17. business just down with darkness fell enough the street. Id. at 29:1-13. times that she never noticed any dysfunction with the For its part, Dkt. No. the 44-7, adult life . . . . She had shopped after testified always been dark in that parking lot." night she was attacked. Kmart, She lived ten miles away and She shopped at the Kmart ^'all [her] a couple times a week." the Id. that ^Mi]t's at 41:16-17. She lights—not even on the Id. at 42:8-17. Kmart never received any complaints from customers regarding inadequate lot lighting, on the night of the attack or any other time prior to Mrs. No. 44-5, 71:1-8; Dkt. No. 52-6, Padgett's assault. 21:3. Nor were Dkt. there complaints of suspicious persons loitering around the entrance of Kmart 67:8. said or in the lot prior to the. attack. This was not because Kmart turned a that she was stationed near the Dkt. No. blind eye: front door, 41-7, Wheeler where she ''always tried to keep a pretty good eye out of what was going on." I ^ at 35:1-8, 70:14-15. Perhaps some Kmart employees were warned about lighting by a police officer at some point prior to September 2012. Mrs. Padgett still had at least as much awareness of the risk on the 24 night of December 21, 2013 as did the store. Kmart saw nothing out of the ordinary that night and had no particular reason to fear for customer safety. observations of the Mrs. Padgett, meanwhile, darkness of the parking had her own lot and neighborhood's character, accumulated over a lifetime. knew of at least as much of a Because Mrs. Padgett and willingly proceeded, duty on liability the for part of She thus risk as did Kmart. ^^knew of despite [Kmart] resulting the and appreciated the danger," to warn injury." ^^there [her] Gordon, the danger [was] and there 821 F. no is Supp. no 2d at 1315 (citing Pound, 279 S.E.2d at 345). A reasonable Mrs. Padgett jury could not was reasonably uncontested evidence conclude foreseeable considered as a that in attack on of the Accordingly, whole. if the Court held that Kmart owed Mrs. the light even Padgett a duty, summary judgment on Kmart's motion would still be warranted.'^ B. Colony Mill's Motion for Summary Judgment (Dkt. No. 44) Colony Mill relies on its Diiblin tenants any problems or dangers, employees in Georgia. given that it to notify it of has no offices or 12. These may only be Dkt. No. 44-4 H 3. ^ Plaintiffs seek punitive damages. Dkt. No. 15 awarded in tort cases given a valid actual damages claim. Nash v. Stoddard, 670 S.E.2d 508, 515 (Ga. Ct. App. 2008) (citing Nelson & Hill, 537 S.E.2d 670, 677 (Ga. Ct. App. 2000)); Rhone v. Bolden, 608 S.E.2d 22, 32 (Ga. Ct. App. 2004). Kmart is thus entitled to summary judgment on this claim, too. 25 While Kmart's lease makes parking lot upkeep and safety, security in particular. 11:19-12:5. However, was enough crime, to . . . do Colony Mill responsible for the agreement is silent as to Dkt. No. 44-3 at 10-11; Dkt. No. 44-2, Colony Mill's owner stated that ""if there there would be a something to protect point where vjb would have customers." Dkt. No. 44-1, 8:22-9:1 (emphasis added). McGarry called Kmart ten to twenty times a year to ensure that Kmart did not require any other services. 15:2-9. Kmart never notified him of Dkt. No. 44-2 at customer safety concerns, lot criminal activity, or lot lighting problems. Dkt. No. 44-2, 14:14; Dkt. No. 52-4, 15:25-16:4; Dkt. No. 44-4 HH 6-8. Colony Mill's other tenants complain about safety. Id. at 17:7. Colony Mill did not review area police reports. 44-1, 8:1-8; Dkt. No. 44-2, 17:21-18:13. i t regarding incidents in the lot. The first landowner, owed Mrs. ordinary O.C.G.A. But negligence care § in keeping an the Dkt. No. Police never contacted Dkt. No. 44-2, 28:17-29:13. element Padgett, Nor did is met. invitee, premises a and Colony duty to Mill, a ^'exercise approaches safe." 51-3-1. the breach element is only satisfied where an owner fails to protect an invitee from a reasonably foreseeable thirdparty criminal act. 92 (Ga. Ct. App. B—T, 2011). Two, Inc. Plaintiffs 26 v. Bennett, claim that 706 S.E.2d 87, Mrs. Padgett's attack was reasonably foreseeable because of prior crimes. No. 52 at 13-20. § III(A)(ii). As explained above, Dkt. the Court disagrees. See Accordingly, Colony Mill did not breach any duty. There are two other reasons why this is so. First, there is no evidence demonstrating that Colony Mill knew of any of the prior incidents. The record is devoid of evidence that Colony Mill reviewed police reports regarding the lot,® dkt. no. 44-1, 8:1-8, or that the police ever contacted it regarding security or lighting. Dkt. No. 44-2, 28:17-29:13. Plaintiffs citing argue McGarry's security trouble. that testimony Colony that Mill he Dkt. No. 52 at 6. did no t h a t an accurate safety not a blind inquire eye, as to This is selective reading: Q The interrogatory answer to Colony [Mill] also says that in . with managers, turned concerns number nine for . . conversations ever came up. Is statement? A Yes, i t is. Q Did you, Mr. McGarry, ever specifically ask Kmart store managers about any safety concerns? No. A Dkt. times No. 52-4, a 15:25-16:7. year. Dkt. No. McGarry called Kmart 44-2, 15:2-9. ten to Kmart twenty apparently determined that the non-violent property crimes occurring at the store and parking 15:25-16:4; Dkt. lot No. did not 44-4 tH merit mention. 6-8. This ® It was not legally required to do so. Brunswick, 484 S.E.2d 708, 710 not No. mean 52-4, that Whitmore v. First Fed. Sav. Bank of (Ga. Ct. App. 1997). 27 does Dkt. Colony Mill buried its head in the sand. It was simply unaware of prior incidents. Secondly, as § III.A.ii.b.2, than she did discussed Mrs. about above regarding Kmart, supra Padgett's claim that Colony Mill knew more the risk of an attack in the lot because Colony Mill knew of inadequate lighting is untenable. Plaintiffs second thus negligence failed to element. satisfy their burden as Colony for to the Mill's Motion Summary GRANTS Kmart's Motion for Mill's Motion for Judgment is granted.® CONCLUSION For Summary these Judgment Summary Judgment reasons, (Dkt. (Dkt. the No. No. Court 41) 44) . and Colony The Clerk of Court is DIRECTED to enter the appropriate judgment and to CLOSE this case. SO ORDERED, this 15th day of November, 2016. LISA GODBEY WOOD, UNITED STATES CHIEF JUDGE DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA ® Plaintiffs also seek pimitive damages- Dkt. No. 15 ^ 12. As the Court explained supra, see n. 4, because Colony Mill has prevailed on all other claims, it is also entitled to summary judgment on this one. 28
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