                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                        July 2, 2019




In the Court of Appeals of Georgia
 A19A0723. RAUTENBERG v. POPE et al.                                           DO-026

      DOYLE, Presiding Judge.

      This appeal arises from a personal injury case filed by Steve Rautenberg

against Robert L. Pope, Pope Properties & Investments, L. P., and Global Parts, Inc.,

(collectively “Global Parts”) after Rautenberg was injured on the premises of a Global

Parts parking lot that leased tractor trailer spaces to his employer. The trial court

granted Global Parts’s motion for summary judgment, and Rautenberg appeals,

arguing that (1) the trial court inappropriately applied Prophecy Corp. v. Rossignol,

Inc.1; (2) the trial court ignored evidence that the defendants were aware of prior

crimes in the parking lot; (3) the trial court erred by weighing evidence and making

factual determinations in derogation of the standard on summary judgment; and (4)

      1
          256 Ga. 27 (343 SE2d 680) (1986).
the trial court erred by finding as a matter of law that the attack on Rautenberg was

not foreseeable. For the reasons that follow, we reverse.

             On appeal from the grant or denial of a motion for summary
      judgment, we conduct a de novo review of the law and evidence,
      viewing the evidence in the light most favorable to the nonmovant, to
      determine whether a genuine issue of material fact exists and whether
      the moving party was entitled to judgment as a matter of law.2


      Viewed in this light, the record shows that on June 20, 2012, Rautenberg, a

truck driver, parked his truck in a rented space at 2952 Moreland Avenue after

dropping off a trailer and in anticipation of meeting another driver bringing a second

trailer for Rautenberg to haul. 2952 Moreland was a property including a parts shop

and a fenced lot with lighting, controlled gate access, and security cameras around a

building on the property, some of which captured portions of the parking lot ; Global

Parts leased spaces in the fenced lot to trucking companies for their employees to use

as secure areas for their drivers to park or leave trailers.

      On the day in question, between 5:00 p.m. and 6:00 p.m., Rautenberg parked

at the Global Parts lot without anyone parked beside him and retired to the sleeping


      2
       (Punctuation omitted.) Agnes Scott College, Inc. v. Clark, 273 Ga. App. 619,
620 (616 SE2d 468) (2005).

                                            2
cab of his truck, where he had the television and air conditioner on, to await his co-

worker. Rautenberg was startled awake by sounds on the driver-side window of his

truck and saw an individual at the window with a tool — a long pry bar or

screwdriver — but having just awoken, Rautenberg did not realize that the person

was not his co-worker. Upon seeing Rautenberg, the man left, and Rautenberg, who

was not wearing shoes, exited through the driver’s side and found another tractor

trailer cab parked extremely close to his cab. Thus, when he stepped out, Rautenberg

was forced to exit onto the step of the neighboring truck, in which he saw the man he

had viewed through his window. At this point, the man quickly drove the cab away

with Rautenberg hanging on the side mirror, sideswiping a trailer on his way to the

exit; Rautenberg fell off, and the cab ran over him, backed over him, and ran back

over him again, leaving Rautenberg with numerous injuries.

      Rautenberg contended that his trucking company started using the Global Parts

lot because it had better security than the lot his employer previously used. He

deposed that in his experience, the gate was closed after hours, and when hanging

onto the rogue cab, he was hoping the gate would be closed and the truck would stop

so he could get off. Although Rautenberg deposed that the incident happened in the



                                          3
early evening around rush hour, the police report noted that the officer first made

contact with Rautenberg in the lot at 8:36 p.m.

      Global Parts’s employee Jill McLeer deposed that while she was managing the

parking lot, she would get police reports if incidents occurred, whether criminal or

accidental, and the company did its best to get the surveillance video if it was

available. She deposed that there could have been as many as 20 prior thefts in the lot.

McLeer deposed that she had received complaints that the gate was not working just

before the incident and that they had various problems with it not working; she

confirmed that there was gas stolen from a truck within the few months prior to the

incident. McLeer deposed that prior to 2012, there were multiple thefts, including

hundreds of thousands of dollars of furniture stolen from multiple trailers belonging

to one company. She deposed that normally Global Parts’s employees were on the

premises until they closed at 5:00 p.m., and “typically the back lot . . . [was] secured

by” then.

      Charles Stille, Global Parts’s 30 (b) (6) witness, deposed that there were some

burglaries on the property. And prior to the incident involving Rautenberg, Global

Parts had received complaints about security, including gas siphoning and burglaries,



                                           4
Stille “had no idea” how many such complaints he had received but at least one was

a stolen vehicle.

      In its summary judgment order, the trial court, relying on Doe v. Prudential-

Bache/A.G. Spanos Realty Partners, L. P.3 and Baker v. Simon Property Group,4

granted summary judgment “[b]ecause the [c]ourt finds a lack of prior substantially

similar crimes,” thereby establishing lack of foreseeability on the part of Global Parts

that would require it to keep Rautenberg safe from this third-party criminal act.

      1. Rautenberg argues that the trial court erred by granting the defendants’

motion for summary judgment. We agree.

              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. An intervening criminal act by a third party generally
      insulates a landowner from liability unless such criminal act was
      reasonably foreseeable. In order for the crime at 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 risk posed by the
      criminal activity. In determining whether previous criminal acts are
      substantially similar to the occurrence causing harm, thereby


      3
          268 Ga. 604 (492 SE2d 865) (1997).
      4
          273 Ga. App. 406 (614 SE2d 793) (2005).

                                           5
      establishing the foreseeability of risk, the court must inquire into the
      location, nature[,] and extent of the prior criminal activities and their
      likeness, proximity or other relationship to the crime in question. While
      the prior criminal activity must be substantially similar to the particular
      crime in question, that does not mean 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.5


      Here, despite the trial court’s findings otherwise, Rautenberg presented

sufficient evidence which precluded summary judgment based on an intervening

criminal act. First, Global Parts’s representive admitted to knowledge of “burglaries,”

thefts, and other property crimes on the premises, and many of those break-ins had

been perpetrated on the trucks parked in the rented spaces.6 It is clear from the email



      5
          (Citations and punctuation omitted.) Clark, 273 Ga. App. at 621-622 (1).
      6
        See Camelot Club Condo. Assn. v. Afari-Opoku, 340 Ga. App. 618, 621-622
(1) (A) (i) (798 SE2d 241) (2017) (holding that a question of fact existed as to
whether property owners were responsible for decedent’s murder by men who
followed him home because evidence established that numerous prior robberies
occurred in the parking lot); Double View Ventures, LLC v. Polite, 326 Ga. App. 555,
559-560 (1) (a) (757 SE2d 172) (2014) (question of fact existed based on evidence
of numerous armed robberies and assaults on property prior to aggravated assault of
plaintiff); Bethany Group, LLC v. Grobman, 315 Ga. App. 298, 301 (1) (a) (727 SE2d
147) (2012) (holding that summary judgment on premises liability claim arising out
of subsequent murder was inappropriate because there was evidence of prior
robberies and violence on the property).

                                           6
exchanges between Global Parts and Rautenberg’s employer that lessees expected the

parking lot to be secure; indeed, the hope that it was secure was one of the stated

reasons that Rautenberg’s employer left its old lot and moved to Global Parts.

Moreover, the personal injuries Rautenberg sustained in this incident were directly

related to the commission of the property crime of breaking into a tractor trailer (the

type of crime of which Global Parts was on notice and expected to guard against) and

the suspect’s ensuing flight from the area as opposed to, for example, a sudden

intentional assault performed in an area known for minor theft.7 Sufficient facts were

presented such that a jury could find that Rautenberg was surprised by the sudden

movement of the truck and did not intend to be carried away by the assailant. The fact

that his injuries were different than those one would normally expect from a truck

break-in is not a fact that demands summary judgment in this instance.8 Finally,

      7
        Compare with Medical Center Hosp. Auth. v. Cavender, 331 Ga. App. 469,
475-476 (1) (a) (771 SE2d 153) (2015) (physical precedent only as to footnote nine)
(holding that prior criminal incidents did not make foreseeable a shooter’s entry into
a hospital after the death of his mother); Clark, 273 Ga. App. at 622 (1) (holding that
prior break-ins did not cause to be foreseeable the carjacking and rape of a parking
lot user); Baker, 273 Ga. App. at 407 (1) (car jacking and shooting were not
foreseeable based on previous break-ins perpetrated on unoccupied vehicles).
      8
         See Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786 (482 SE2d 339)
(1997) (holding that “[w]hile the prior criminal activity must be substantially similar
to the particular crime in question, that does not mean identical”; rather, such activity

                                           7
regardless of the exact time of the incident, all of the testimony shows that it occurred

after the time at which McLeer deposed the lot should have been secured for the

evening.9

      Rautenberg presented sufficient evidence, largely based on the admissions of

Global Parts, that the owners were aware that their customers had encountered

property crimes on the property before and that they were expected to guard against

such crimes. Accordingly, the trial court erred by granting summary judgment based

on the lack of foreseeability of a third-party crime.

      2. To the extent that the trial court intended to apply the rule announced in

Prophecy Corp.,10 the inconsistencies noted by the court — whether a pry bar or

screwdriver was used or the time at which the incident occurred — were minor or

were not actually inconsistencies but instead were the witness’s admission that he was




“[must] be sufficient to attract the [owner’s] attention to the dangerous condition
which resulted in the litigated incident”) (punctuation omitted).
      9
        “[W]e recognize that questions of foreseeability are generally for a jury to
decide. . . .” Doe, 268 Ga. at 606. See also Walker, 267 Ga. at 786-787.
      10
         256 Ga. at 30 (1) (explaining the rule that “the testimony of a party who
offers himself as a witness in his own behalf is to be construed most strongly against
him when it is ‘contradictory, vague or equivocal’”).

                                           8
unsure of precisely what occurred at certain points. Thus, Prophecy Corp. was not

applicable to this case.

      3. The trial court’s grant of summary judgment was based solely on

foreseeability of the third-party crime.11 The only issues of factual causation reviewed

by the trial court12 were that (1) “no crime was committed against” Rautenberg, and

(2) “Rautenberg caused or precipitated the incident.” When the evidence is viewed

in the light most favorable to Rautenberg,13 his arguments present questions of fact.

As for the remaining arguments presented by Global Parts, those arguments also

present questions of fact based on the record before the trial court.14 There was some



      11
         The trial court explained in its order that “[D]efendants assert in their motion
that they are entitled to summary judgment because there is no evidence of prior
substantially similar crimes; no crime was committed against Plaintiff; [and] Plaintiff
caused or precipitated the incident . . . Because the Court finds a lack of prior
substantially similar crimes, the other claims will not be reached.”
      12
        See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389)
(2002) (“[O]ur appellate courts are courts for the correction of errors of law
committed in the trial court.”)
      13
           See Clark, 273 Ga. App. at 620.
      14
        Compare with Johns v. Housing Auth. for the City of Douglas, 297 Ga. App.
869, 872 (678 SE2d 571) (2009) (holding that a tenant’s failure to secure her
apartment foreclosed the issue of causation as to whether the landlord’s failure to
provide enhanced security allowed a sexual assault to occur).

                                             9
evidence that Global Parts rented out its space in a purportedly secure lot to truck

drivers like Rautenberg, that it was aware of past similar crimes, and its failures “to

have, maintain[,] or repair an operable security gate, operable security camera[,]

operable gate access key pad[,] and security guards to prevent an incident of criminal

misconduct” may have resulted in Rautenberg’s injuries. Thus, the trial court should

not have granted summary judgment based on lack of causation in fact.15

      Judgment reversed. Coomer, J., concurs. Markle, J., concurs fully and

specially.




      15
          See DeMarco v. Ga. Dept. of Transp., 320 Ga. App. 324, 325 (739 SE2d
779) (2013) (“Whether proximate cause exists in a given case is a mixed question of
law and fact. It requires both factfinding in the ‘what happened’ sense, and an
evaluation of whether the facts measure up to the legal standard set by precedent.
Ordinarily, both determinations are most appropriately made by a jury upon
appropriate instructions from the judge.”); Mason v. Chateau Communities, Inc., 280
Ga. App. 106, 112-114 (2) (633 SE2d 426) (2006) (“a jury question exists as to
whether [the landlord] should reasonably have foreseen a criminal attack against the
plaintiff . . . , and whether [the landlord] exercised ordinary care to protect its
tenants.”). Compare with Johns, 297 Ga. App. at 872.

                                          10
 A19A0723. RAUTENBERG v. POPE et al.                                     DO-026



      MARKLE, Judge, concurring fully and specially.

      I fully concur with the majority’s opinion. But I write separately to further

distinguish Doe v. Prudential-Bache/A. G. Spanos Realty Partners, L. P., 268 Ga. 604

(492 SE2d 865) (1997), on which the trial court based its ruling. There, in

determining that a violent sexual crime was not substantially similar to prior property

crimes (and, therefore, foreseeability of the risk had not been established), the

Supreme Court of Georgia examined “the location, nature and extent of the prior

criminal activities and their likeness, proximity or other relationship to the crime in

question.” Id. at 605 (citing Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786
(482 SE2d 339) (1997)). The Court found it significant that the location where all of

the criminal acts, including the rape at issue, occurred was a common area. Id. at 606.

Here, although the crime occurred in a parking lot, it was not a mere common area.

Global Parts held itself out as a lessor of parking spots on a secured lot. Moreover,

there is some evidence from which it can be inferred that Rautenberg’s trucking

company chose Global Parts’s lot due to the enhanced security features. And, there

is evidence of at least one prior burglary that occurred on the premises.

      On this record, I concur that there is a genuine issue of fact as to the

foreseeability of the harm suffered by Rautenberg.




                                          2
