Originally published October 2005
In Agnes Scott College, Inc. v. Clark, 2005 W.L. 1220359 (Ga. App.), the Georgia Court of Appeals determined that Agnes Scott College (Agnes Scott) was not negligent for failing to keep its premises safe when a student was kidnapped and raped off campus.
During September 1997, Nikia Clark parked her car in Agnes Scott’s south parking lot. Around noon the following day, she returned to her car. It was a sunny day and the parking lot was full. When she got to her car and began to roll down her window, she noticed a man walking toward her car. She attempted to roll up her window, but he reached into the driver’s side of the car, punched her several times in the face, unlocked the door, and forced his way into the car driving her to another part of Atlanta where he raped her. Fortunately, Ms. Clark was able to escape and the attacker was later arrested.
Prior to the September 1997 incident involving Clark, there had been no reported incidents of kidnapping, rape, or any other violent crimes occurring in the South lot at Agnes Scott. Only crimes against property, such as vandalism, theft from cars, stolen cars and other crimes not involving person-to-person contact had been reported.
Clark ultimately sued the college alleging that the college negligently failed to keep its premises safe. The trial court denied Agnes Scott’s motion for summary judgment, but on appeal, the Georgia Court of Appeals reversed the trial court’s decision and granted Agnes Scott’s motion for summary judgment for two reasons. First, although a landowner has a duty to invitees to exercise ordinary care to keep its premises safe, the landowner is not an insurer of an invitee’s safety. Second, an intervening criminal act by a third party generally insulates a landowner from liability unless such criminal act was reasonably foreseeable. Simply put, without foreseeability that a criminal act would occur, no duty arises on the part of the proprietor to exercise ordinary care to prevent that act.
The Court further explained that in order for the crime and issue to be foreseeable, it must be substantially similar to previous criminal activities occurring on or near the premises such that a reasonable person would take ordinary precautions to protect invitees from the risks posed by the criminal activity. To determine whether previous criminal acts are substantially similar to the occurrence causing harm, the Court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationships to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean it must be identical. What is required is that the prior incident be sufficient to attract the landowner’s attention to the dangerous condition, which resulted in the litigated incident.
In this case, the Court ultimately determined that there was no evidence of similar incidents occurring in the south lot that would have made the attack on Ms. Clark foreseeable to Agnes Scott. The only evidence produced was evidence regarding break-ins to unoccupied cars and other incidents that did not involve person-to-person violence or contact, which would make a daytime abduction of Ms. Clark foreseeable. Even the submittal of general crime statistics and students’ concerns about walking alone in a parking lot at night did not constitute sufficient evidence to sustain the reversal of the motion for summary judgment filed by Agnes Scott. In other words, the Court explained that the prior criminal acts in this case did not suggest that personal injury would occur in the manner as it did in this case. The parking area was a common area used by several students where the potential confrontation with any attacker could be brief, especially during the middle of the day when the parking lot was full. There simply was no other similar occurrence or evidence that would have made the attack on Clark foreseeable. As a result, Agnes Scott was entitled to judgment as a matter of law.
The decision in the Clark case does not mean that a university or college will be insulated from any third-party criminal activity. A careful analysis of the facts must be conducted on a case-by-case basis to determine if any similar occurrences have occurred prior to the litigated matter, when a college is sued for this type of claim. The best posture for a university is to utilize all preventative measures to make sure all parking lots are well lit, conduct routine patrol of the lots during the day and evening hours by campus security officers, and to utilize any other precautionary measures available to the university to maintain a safe environment. Of course, a university cannot create a crime-free environment, but it can create an environment to put it in the best defensible posture when litigation does occur.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
