Daily Development for
Friday, January 16, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDLORD/TENANT; LANDLORD'S LIABILITY TO TENANT'S CUSTOMERS; SECURITY GUARDS: Landlord's failure to provide security patrols to customers of tenant at the time that a customer was shot may show such a conscious indifference to consequences that punitive damages are appropriate.

Carlock vs. Kmart Corporation, 489 S.E.2d 99 (Ga. App. 1997).

This is a wrongful death claim arising from a murder during an attempted robbery in a shopping center parking lot. Both Landlord and Tenant operated retail stores in the shopping center. Plaintiff, decedent's husband, sued both Landlord and Tenant. Tenant prevailed on summary judgment, in part, because there was no evidence in the record showing that the criminal act was reasonably foreseeable to Tenant. Tenant has only been open at that location for approximately two (2) months at the time of the incident. The court disagreed with plaintiff's contention that Tenant had a duty to investigate the possibility of criminal conduct in the parking lot occurring prior to occupancy. It further disagreed with the more bizarre contention that the fact that Landlord used security guards in its portion of the parking lot should have put Tenant on a duty of inquiry to ascertain whether there was a history of criminal activity justifying the conclusion that it should provide security as well.

The Appellate Court, however, on a 4-3 vote, reversed the trial court's grant of partial summary judgment on plaintiff's claim for punitive damages against Landlord. There had been a previous armed robbery and other robberies involving female victims in the parking lot. Landlord provided a security patrol for its own customers in the parking lot until 9:00 p.m., when it closed, but provided no security to customers of Tenant, although all agreed that the evidence supported the conclusion that Landlord was responsible for safety in the lot. The shooting occurred at 9:41 P.M., as the security guard was walking to his car in another part of the lot.

The Appellate Court stressed the "intentional and complete absence of security measures" in reversing the grant of partial summary judgment, and found that the combination of the forseeability of the robbery and shooting, landlord's decision to cease providing security services in the parking lot after 9:00 p.m. (except for landlord's employees, for whom security services continued until approximately 10:00 p.m.), even though Tenant remained open until midnight, could be construed by a jury as evidencing a conscious indifference to the consequences that tenant's customers might suffer due to the lack of security.

The dissenters emphasized that the evidence of prior criminal activity in this case involved no crimes that had been committed during the period following Landlord's security patrols. The most significant case - another armed robbery, had occurred at a time when Landlord had no security patrol at all. Thereafter, the balance of the crimes, none of them a serious, had occurred during a time that the security guard were present. Consequently, the dissenters argued, Landlord was entitled to assume that the safety measures it had undertaken had made the parking lot more secure generally. In any event, Landlord's actions did not demonstrate callous disregard of safety considerations sufficient to support punitive damages - the only question at stake in this appeal.

Comment: Although the editor concurs with the dissent here, the dice are cast. Landlords can anticipate that this case will support punitive damages claims in other instances where, having been warned by prior criminal activity, Landlords take measures that are less than comprehensive or can be seen as overly self serving. For a similar ruling, see the DD for 12/5/97. There are many other cases discussed there on the general topic of landowner liability for failure to provide security. But this is the first appellate case the author has seen going this far on punitive damages.

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