From Carmichael to the Capitol: Is Georgia's Legislature Set to Ease the Burden?
By: Dy Harris
Recent shifts in Georgia's premises liability law are catching the attention of the insurance industry and Georgia legislators. Georgia CVS Pharmacy LLC v. Carmichael, 316 Ga. 718 (2023), broadened property owners' responsibilities, allowing plaintiffs to argue landowners should have anticipated potential harms, including in complex cases like human trafficking. As discussions around tort reform intensify – with proposals like the Georgia Landowners Protection Act entering the fray – it is crucial to understand how these changes could affect liability exposure and legal obligations in Georgia.
The Carmichael Case, which affirmed a verdict of $45 million to a man shot in a CVS parking lot during a robbery attempt, has become a pivotal point in premises liability law. Before this ruling, plaintiffs had to prove a "substantially similar prior crime" occurred on the property to establish a property owner could have foreseen the subject criminal act. This standard provided a degree of predictability for insurers and property owners alike. However, Carmichael changed the landscape by throwing out the “similarity” requirement and introducing a new "totality of the circumstances" approach. Courts now consider a wider range of factors to determine if a landowner should have anticipated the specific criminal activity that led to the claim. These factors include the nature of the business, neighborhood crime rates, security measures in place and previous criminal incidents on the premises, regardless of similarity.
This shift means that property owners, and their insurers, now face a more complex analysis regarding their duty to ensure safety. The previous benchmark of demonstrating a substantially similar prior crime offered a clear, albeit strict, standard. With this expanded approach, more variables come into play which complicate risk assessment and liability predictions. The court's broader standard gives plaintiffs greater leeway, as seen in subsequent cases.
In February, a federal judge in Atlanta cited Carmichael to deny summary judgment to Wal-Mart where an intoxicated plaintiff was shot in its parking lot by the driver of a pickup truck that the plaintiff approached after the security guard left at 10 p.m. Wiltse v. Wal-Mart Stores East LP, 2024 WL 1694076. The court evaluated the store's security measures, prior incidents and the surrounding environment to determine if criminal conduct was foreseeable. Rejecting earlier cases supporting Wal-Mart’s argument there were no substantially similar crimes on the premises, the judge cited Carmichael to rule the foreseeability of plaintiff's incident must be left to the jury “unless no rational juror could find the criminal act reasonably foreseeable.” This broader threshold for foreseeability means that almost every crime-related premises case will go to a jury.
Suresh & Durga Inc. v. Doe, 369 Ga. App. 787 (2023), further illustrates Carmichael's reach, applying its totality-of-the-circumstances approach to the sensitive issue of human trafficking. In this case, the plaintiff alleged she was trafficked at a motel and brought premises liability and negligence claims against the motel owner. The owner argued sex trafficking is a uniquely insidious and clandestine crime that made its existence or probability unforeseeable to the owner in spite of other sex crimes and violent crimes that had occurred on its property. Citing Carmichael, the court ruled that the existence of the other prior crimes, even though none involved sex trafficking, made foreseeability a question for the jury. The “totality of the circumstances” could collectively suggest the motel should have anticipated the possibility of trafficking occurring on its property.
Durga is particularly important because it shows how Carmichael's impact makes it increasingly challenging for landowners to avoid litigation, even for crimes that are inherently unpredictable. By focusing on the landowner's knowledge of criminal patterns, cases like Durga demonstrate how plaintiffs can use a property's reputation or crime history to establish foreseeability, even in complex cases like sex trafficking.
In response to this expanding liability, insurance companies are understandably reluctant to provide coverage to businesses in “high crime” areas. Property insurers are now being accused of “legal redlining” by some local politicians.1 However, state legislators aware of the root cause of the problem introduced Senate Bill 186, the Georgia Landowners Protection Act. Although it did not pass in 2024, the bill proposed shielding landowners from liability unless plaintiffs could prove by "clear and convincing evidence" the landowner's "actual knowledge of a specific threat." This would have made it harder to hold landowners liable, particularly in cases like Durga, by eliminating constructive notice and requiring a direct link between the landowner's knowledge or actions and the criminal act. For property owners and businesses, such legislation could have provided a clearer framework for understanding and managing their responsibilities.
Governor Brian Kemp has prioritized tort reform, emphasizing a multi-year strategy to address what he terms "frivolous lawsuits." The Data Analysis for Tort Reform Act of 2024 is part of this initiative, mandating the collection of data on tort claims to assess their impact on insurance premiums and the broader economy. This data-driven approach appears to set the stage for more comprehensive tort reform in the 2025 legislative session. By consulting with stakeholders across the board – business owners, insurers, legal professionals and consumers – the goal is to create legislation that balances the rights of plaintiffs with the need to protect businesses from excessive litigation.
As Georgia navigates this evolving legal terrain, the proposed reforms offer a glimpse into the changes that might be on the horizon. Businesses, property owners and insurers should stay informed as new legislation may soon alter the scope of their responsibilities.
1 Denials of insurance in ‘high crime’ areas seen as ‘legal redlining’ - Atlanta Journal-Constitution, October 13, 2024, p. 13.
Attorney Contact Info
Dy Harris
dy.harris@swiftcurrie.com
404.888.6137