Premises Liability and Third-Party Attacks: A Path Forward

Recently, in Georgia CVS Pharmacy, LLC v. Carmichael, the Supreme Court of Georgia recognized a totality of circumstances approach for determining whether a landowner owes a duty to protect patrons from third-party attacks. So right now, in Georgia, the poor lighting, high-crime surroundings, and absence of functioning panic boxes are relevant considerations for the duty calculus. Many members of the Georgia General Assembly find this outcome intolerable. Only months after the court’s ruling in Georgia CVS Pharmacy, several state senators, focusing on the supposed “unfriendliness to business” of the current totality of circumstances rule, introduced a bill that would have created the strictest standard in the United States and, in fact, would amount to an effective closing of the door to virtually any suits by invitees against businesses when the invitee was injured by third-party attacks on the business’s property. Although the bill ultimately failed to pass, the Georgia legislature and Governor both claim to be focused on tort reform. They also claim to be focused on creating a business-friendly environment in Georgia. This bill did not pass, but—as even the Georgia Supreme Court acknowledged— some bill ultimately will. It is important that Georgia get this right. This Article proposes a structure for such a bill. First, a reform bill should not be modeled after Senate Bill 186. That bill sacrifices customer safety on the altar of so-called friendliness to business, as if the two goals are mutually exclusive. But businesses can thrive when encouraged to create safe conditions for customers: safe communities are attractive places to do business. And the purposes of tort law—not to mention principles of sound public policy—are best achieved when safe practices are legally incentivized and injured customers are compensated for their injuries resulting from the absence of such practices. Meanwhile, businesses will thrive in a climate of certainty and predictability regarding their obligations.