To: Adam Starr From:Alexandria Warner Date:October 4, 2011 Re: Potential negligence claim against the Yellow Jacket Inn Statement of Facts Last weekend a group of Georgia Tech alumni stayed at the Yellow Jacket Inn in Atlanta to attend the Georgia Tech-Vanderbilt football. After the game one of the alumni walked into his room and saw an intruder inside stealing his clothes and going through his personal items. The intruder physically attacked the alumni and stole his wallet.

The alumni was left with a bloody nose, black eye, and a broken wrist. This is the first time a guest has been attacked in their room or had anything stolen from their room at the Yellow Jacket Inn since it opened in 2000. However, this is not the first time an incident has occurred on their property. On previous occasions, vandals had broken into three or four cars and stolen stereos and loose change. On another occasion guests were mugged walking around the outskirts of the parking lot, but no one was injured.

Also, a thief broke into an unoccupied storage closet and stole towels and shampoo. The owner believes that none of these incidents have occurred during a Georgia Tech football game, but may have occurred during a Georgia Tech baseball game. You asked for my opinion as to whether the Georgia Tech alumni can prove the owner of the Yellow Jacket Inn for negligently failing to exercise ordinary care to keep the premises and points of access safe. Issue Statement Under O. C. G. A. § 51-3-1, does the Georgia Tech alumni have sufficient evidence to prove that the owner of the Yellow Jacket Inn failed to exercise ordinary care to keep the premises and points of access safe when (1) three or four cars were vandalized where stereos and loose change were stolen from the cars, (2) guests were mugged on the outskirts of the Yellow Jacket Inn parking lot, and (3) an unoccupied storage closest was broken into and had towels and shampoo stolen from it? Brief Answer Probably not. The Georgia Tech Alumni cannot prove the owner could reasonably anticipate that a violent attack may occur in a guest’s hotel oom based on the previous criminal activities that took place at the Yellow Jacket Inn. They were also unaware of a burglary in a guest’s hotel room. However, the Georgia Tech alumni can prove the Yellow Jacket Inn is a corporation and the owner is responsible for the property and that the alumni was a paying guest at the inn. The alumni can also prove that guests were harmed on the Yellow Jacket Inn’s property, but the crimes are not similar to prove the alumni’s physical attack and burglary in his room were foreseeable.

Therefore, the Georgia Tech alumni will probably not be able to prove this element of negligence, so the owner of the Yellow Jacket Inn will be found not negligent. Discussion O. C. G. A. § 51-3-1 states that: “Where an owner or occupier of land, by express or implied invitation, 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 failure to exercise ordinary care in keeping the premises and approaches safe. O. C. G. A. § 51-3-1 explains that a property owner who invites others to come to their premises for legal reasons must use ordinary care to keep their premises safe. Ordinary care means the property owner must take the steps required to protect others form similar criminal acts committed in the past. The alumni can most likely prove all of the elements of O. C. G. A. § 51-3-1 except for failure to exercise ordinary care in keeping the premises and points of access safe.

The alumni can prove the Yellow Jacket Inn is a corporation with an owner that is responsible for the property and that the Georgia Tech alumni was a paying guest who had the right to be on the property. The alumni can prove the damages done to him on the Inn’s property, but there is no proof that the Inn did not exercise ordinary care of keeping the property safe. The alumni will rely on cases such as Matt v. Days Inn of America, 212 Ga. App. 792 (1994). In this case, Richard and Kellee Matt stayed at the Days Inn in Atlanta.

Richard Matt was unloading the luggage from his car when a car pulled up behind him and the thief demanded Matt for his wallet and when Matt did not comply immediately the thief shot him and drove away. At the time of this incident the Days Inn security guard was sitting in a car 40 cars away and witnessed the incident. The guard radioed into the front desk to call 911. There have been 83 crimes committed at the Days Inn in Atlanta preceding Matt’s shooting, 81 of which were committed in Days Inn‘s parking lot (including one purse snatching and a robbery by force without a weapon present).

There was also one robbery in a guest’s hotel room. The Fulton State Court granted Days Inn motion of summary judgment. Matt appealed the judgment. Id. at 792-93 The Court of Appeals of Georgia reversed the landowner’s motion for summary judgment. The court held that the evidence of prior crimes in the parking lot of Days Inn are substantially similar to Matt’s incident. The court pointed to the fact that the only difference between the two incidents was a weapon. Also, the fact that a security guard was present does not increase the standard of care.

Days Inn is negligent Id. at 794 The court also noted that Matt produced evidence from Days Inn’s security guard that he did not feel safe patrolling the premises. Prior to Matt’s incident the guard requested permission to carry a weapon, wear a bullet-proof vest, and carry a portable telephone. Also the guard requested that a gate controlling access to the parking lot be installed. This additional evidence showed that Days Inn did not exercise ordinary care in keeping the premises safe.

The court concluded that the prior criminal activity was sufficiently substantially similar to Matt’s incident and the landowner was negligent in not taking reasonable precautions to protect its guests. Id. at 795 Another case the Georgia Tech alumni will rely on is the Sturbridge Partners v. Walker, 267 Ga. 785 (1997). In this case, Walker was awakened by an intruder that raped and sodomized her in Walker’s Sturbridge apartment. Three prior burglaries occurred during the daytime when the apartments were unoccupied. The trail court granted Sturbridge partners a summary of judgment but the appellate court reversed the decision.

Sturbridge Partners filed a petition. Id. at 604 The Supreme Court of Georgia affirmed the decision of the appellate court reversing the grant of summary judgment to the landowner. The court held the prior burglaries to be substantially similar to Walker’s burglary. The court pointed out that even though the burglaries were committed when the apartments were vacant it is still reasonable to anticipate that an unauthorized entry might occur while an apartment was occupied and could result in personal harm to a tenant.

The jury concluded that Sturbridge Partners failed to exercise ordinary care to safeguard their tenants against the foreseeable risk posed by the prior burglaries. In contrast, the Yellow Jacket Inn will rely on cases such as Doe v. Prudential-Bache, 268 Ga. 694 (1997). There, Jane Doe had an apartment at the Regency Square Apartments owned by Prudential-Bache/A. G. Spanos Realty Partners. Doe parked her car in the parking deck underneath her apartment where she was then raped and robbed. Before Doe’s incident there were a number of crimes in the parking garage on Regency Square’s property.

Property was stolen or damaged in the parking garage, but there were no previous violent acts toward tenants. Id. at 604 The Supreme Court of Georgia affirmed the grant of summary judgment to the apartment building owners, explaining: We conclude that the prior property crimes, largely thefts from automobiles and acts of vandalism, are insufficient to create a factual issue regarding whether Regency Square could reasonably anticipate that a violent sexual assault might occur on the premises. ? First, the “very nature” of the thefts and acts of vandalism committed in this case do not “suggest that personal injury may occur. Further, because the parking garage where the prior crimes occurred is a common area, used by all the tenants and their guests, there is only the potential for a tenant to confront a thief in an isolated situation, and, even if such an encounter occurs, there is always the possibility that the isolation could be brief. ? In contrast, a tenant encountering a burglar in the privacy of her apartment inevitably will be isolated with the intruder, and will have little chance of a third party interrupting the encounter. Finally, a tenant generally will have opportunities for escaping an isolated encounter with a thief in a common area, but will not have similar opportunities when encountering a burglar in her apartment. Id. at 606 Here, the Georgia Tech alumni will argue that the Yellow Jacket Inn failed to exercise ordinary care in keeping the property safe when prior similar crimes have occurred. Previous criminal activity such as a thief breaking into an unoccupied storage room and stealing towels and shampoo is a weak fact.

There was no violence involved and probably less than $30 of supplies stolen; this incident is not highly supportive to the alumni’s burglary and physical attack. The mugging on the outskirts of the Inn’s property was a threat of violence. It was also done in an open area where the victims were very vulnerable. Next, the criminal act of thieves breaking into cars stealing stereos and loose change shows there was burglaries on the property but only in the parking lot. There were no criminal incidents in a guest’s hotel room prior the alumni’s case.

Potentially, the prior incidents are not substantially similar to the alumni’s case, which is consistent with the court’s analysis in Doe v Prudential-Bache. The Yellow Jacket Inn would point out that, unlike the plaintiff in Walker or Matt, the alumni was the first person attacked in a guest’s room and was also the first time a guest’s room was burglarized. Like the plaintiff in Doe v Prudential-Bache whose summary of judgment was affirmed, the Yellow Jacket Inn should not be held responsible for the damages done to the alumni.

The prior criminal activities are insufficient to create a factual issue regarding whether the Yellow Jacket Inn could reasonably anticipate that a violent physical abuse might occur in a guest’s hotel room. The Yellow Jacket Inn probably has the stronger argument. The Inn’s situation is more coinciding to Doe then Matt or Walker. Even though there were several previous criminal incidents at the Inn, the alumni will probably be unable to prove that the incidents are substantially similar to his.

The fact that pervious burglaries had not occurred in a guest’s room prior to the alumni’s case, shows the inn could not reasonably anticipate that a physical attack or a burglary in a guest room might occur on the premises. The Yellow Jacket Inn did not fail to exercise ordinary activity because the incident was unforeseeable. Conclusion The Georgia Tech alumni will probably be able to prove two of the three elements of negligence for failing to exercise ordinary care in keeping the premises and points of access safe.

The alumni can prove the fact that the Yellow Jacket Inn is a corporation with an owner that is responsible for this property and that he was a paying guest who had the right to be on the property of the Yellow Jacket Inn. However, the Georgia Tech alumni will probably be unable to prove failure to exercise ordinary care in keeping the premises and points of access safe. The three prior criminal acts are not substantially similar to the alumni’s incident because no violence was committed and there were no burglaries inside a guest hotel room.

A thief breaking into an unoccupied storage room and stealing items is a weak fact where there was no threat of violence. The mugging on the outskirts of the Inn’s property was a threat of violence but no one was actually hurt. The thieves breaking into cars and stealing stereos and loose change shows there were burglaries on the property, but only in the parking lot and with no threat of violence. Therefore, it is highly unlikely that the alumni can prove that the prior criminal acts were substantially similar. Under the totality of circumstances, the Yellow Jacket Inn will probably be granted summary of judgment.