The Confusing Question of Causation in Criminal Attack Premises Liability Causes

BY Gil Deitch, Andrew Rogers,
Michael D’Antignac and Kara Phillips

Nearly 30 years ago the Georgia Supreme Court held that “whether proximate cause exists in a given case is a mixed question of law and fact.” As the dissent pointed out in , however, the court was no closer in 1990 to explaining, or enabling practitioners’ ability to anticipate a trial court’s or appellate court’s rulings regarding proximate causation.

The current pattern jury instruction, though improved, provides little aid to judges, jurors, and attorneys alike:

Thus, what has frequently been determined to be “undeniably a jury question” has other times been determined a “plain and undisputed case,” which is then barred from a jury’s consideration by the trial court or then snatched from their hands by an appellate court. The result is a mine field for the thoughtful practitioner and sometimes a decade-long ordeal for the injured plaintiff.

It remains the law in Georgia that “what amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.” Thus, the facts are the key to successfully navigating proximate cause. The effective trial attorney must focus their time and effort on marshaling the necessary facts.

In criminal attack premises liability cases in the current legal climate in Georgia, the mixture of factual considerations by the jury and the legal concerns of the courts most often come to an unpredictable head on the related issues of foreseeability, comparative negligence, and apportionment.


“[T]he landowner’s duty ‘extends  to  criminal attacks.’” Establishing foreseeability sufficient to convince the trial judge, jury, and appellate courts will turn upon the facts. The task before the trial lawyer is to draw out all the facts pertinent to the case in discovery and then carefully point the courts to the proper application of law to those facts.

Fundamentality, the issue of foreseeability is a question of duty, however, the age-old cry of “too speculative!” is often raised in the foreseeability context. Further, recent defense efforts have been focused on requiring that a security expert must establish the causal link between the duty arising from the foreseeable harm, and ultimately the causation of the plaintiff’s injuries. Under Georgia law, the suggestion that a security expert is required in premises liability cases is simply a red herring:

Six Flags also argues that Martin’s “theory of causation” is too speculative. Specifically, Six Flags contends that Martin’s “laundry list” of the missed security measures resulting in his attack is too “speculative” to prove causation, as Martin presented no expert testimony on security-gang issues. But Six Flags provides no legal authority even remotely suggesting that a plaintiff cannot show causation in a premises-liability case without  testimony.Rather, the causal link between the duty arising from foreseeability in criminal attack premises liability cases begins and ends with the facts, as the Court of Appeals concluded in :

Here there was evidence that Six Flags ignored Officer Herman’s advice to provide security near the CCT bus stop during all operating hours. In addition, the same gang members, including at least one Six Flags employee, threatened and terrorized two families earlier on  when they violently attacked Martin, and although Six Flags was aware of the incident, it refused to eject them from the park. And as discussed supra, Six Flags was keenly aware of the serious gang problem and criminal activity that occurred in and around its premises. Further, there appears to be no evidence of any efforts that Six Flags made to address these pressing issues. The foregoing evidence of causation, then, is specific and does not require speculation. Moreover, in numerous cases, we have “reiterated the principle that questions of negligence and causation, except in , , and , are solely for jury determination. And the foregoing evidence simply renders this case not within the “indisputable” category.The practical application of these principles again requires the trial attorney to dauntlessly conduct discovery in a manner that seeks every shred of evidence to support every element of the claim.

Comparative Negligence

The question of comparative negligence turns on the concept of ordinary care, which the Georgia Supreme Court addressed in the context of a criminal attack case in  in 1991 and the Georgia Court of Appeals applied to a better set of facts in  in 1999:

“Exactly what constitutes ‘ordinary care’ varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm.” Whether a party has failed to exercise ordinary care may be decided by the court only in cases in which “undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.”In , the Court of Appeals found that the plaintiff and defendant were equally aware of the risk of third-party criminal attack. Specifically, the court noted the plaintiff had previously been the victim of an unsolved burglary and had knowledge of another tenant being raped in a ground floor apartment.

Despite these facts, the Court of Appeals sorted carefully through the record to determine “whether the plaintiff could have taken any action in the exercise of ordinary care to avoid the consequences of the defendant’s alleged negligence.” In so doing, the Court of Appeals reversed the trial court finding several questions of fact for a jury:

  • Did the plaintiff improperly use the window locks and thumbscrews in her apartment on the night of her rape?
  • Should the plaintiff have reported some alleged defect in her window locks?
  • Did the plaintiff’s knowledge that her windows were “flimsy” preclude the defendant’s liability?
  • Was the plaintiff’s move to a ground floor apartment from an upper level apartment despite her knowledge of the risk of a criminal attack on the ground floor a failure to exercise ordinary care for her own safety?

is a good reminder that “undisputable” is a high bar and that when it comes to facts, it is better to have them and not need them than to need them and not have them.


Apportionment in criminal attack premises liability cases has been the norm for more than a decade in Georgia, but the appellate courts’ weighing in on the application of apportionment is far from complete. Importantly, the Supreme Court’s recent decision in  drew a bright line between the jury’s tasks of determining liability and the total amount of damages, and the jury’s task of apportioning fault to non-parties.

Unlike the assessment of the plaintiff’s relative fault—which, if greater than or equal to 50 percent of total fault, will preclude the plaintiff’s recovery altogether, see O.C.G.A. § 51-12-33 (g)—the assessment of fault among tortfeasors will in most if not all cases have no impact on the jury’s finding of liability or on the total amount of damages to which the plaintiff is entitled. Accordingly, relative fault among tortfeasors will not in all cases be “inextricably joined” with the issues of liability and damages so as to preclude a retrial on apportionment only.Upholding the jury’s damages verdict in , the court concluded,

In sum, and as a general matter, where correction of an apportionment error involves only the identification of tortfeasors and assessment of relative shares of fault among them, there is no sound reason to disturb the jury’s findings on liability or its calculation of damages sustained by the plaintiff.


In fact, where the issue of apportionment is distinct from the issues of liability and damages sustained, our “law of the case” doctrine will in most instances  the re-litigation of these issues once the jury’s verdict on them has been affirmed.This recent pronouncement by the Georgia Supreme Court confirms that a jury’s findings of liability and calculation of damages may not be undone by the latest trend in protracted litigation and appellate practice.

Criminal attack premises liability cases remain a difficult area of law in Georgia. The mixed question of law and fact posed by proximate causation is one of the many thorny issues for the trial attorney. Without a doubt, criminal attack premises liability cases require the victim’s attorney to have a passion for the facts.

The Crime Victim Law Group is the Atlanta-based law firm of Deitch & Rogers, LLC consisting of attorneys Gilbert Deitch, Andrew Rogers, Michael D’Antignac and Kara Phillips. Their mission is to obtain justice for crime victims by obtaining money damages from negligent parties who fail to take reasonable steps to prevent criminal attacks.


1 260 Ga. 569 (1990).
2 , 335 Ga. App. 350 at 362 (overruled on other grounds in , 2017 Ga. LEXIS 454 (June 5, 2017) see fn. 6 “Though Six Flags challenged the jury’s finding of proximate cause on direct appeal, the Court of Appeals affirmed that finding, and we declined to grant certiorari on that issue.”)
3 , 2017 Ga. LEXIS 454, *10 (June 5, 2017) citing , 267 Ga. 785, 786 (1997) (emphasis in original).
4 , at 362 (emphasis in original).
5 ., at 363 (emphasis in original).
6 , 236 Ga. App. 701, 702 (1999) citing , 261 Ga. 491, 493 (2) and , 194 Ga. App. 874, 875 (2) (1990).
7 , 2017 Ga. LEXIS 454, *32.
8 , 2017 Ga. LEXIS 454, *32-33 citing O.C.G.A.
§ 9-11-60 (h) (emphasis in original).

60.200           Torts: Proximate Cause; Definition

Proximate cause means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event, but if an act or omission of any person not a party to the suit was the sole proximate cause of an occurrence, then no act or omission of any party could have been a proximate cause.

When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.] (Use the bracketed part if there is evidence of a concurring of contributing cause to the injury or death.) Illinois v. Wilson, 935 NE2d 587 (2010)

O.C.G.A. $$51-12-3, 51-12-8, 51-12-9


Torts           Updated January 2017 5

Criminal attack premises liability cases remain a difficult area of law in Georgia. The mixed question of law and fact posed by proximate causation is one of the many thorny issues for the trial attorney.

Leave a Reply

Your email address will not be published. Required fields are marked *


This site uses Akismet to reduce spam. Learn how your comment data is processed.