The Georgia Court of Appeals tossed out a defense verdict for an apartment complex near Six Flags where a man was murdered during a robbery and carjacking, ruling that the judge improperly instructed the jury that they could consider whether the deceased had assumed the risk of being attacked. 

The appeals panel also said the trial judge failed to weigh the probative value of evidence about the apartments' security costs before barring its admission. 

The ruling, written by Judge E. Trenton Brown III with the concurrence of Judges Anne Elizabeth Barnes and Amanda Mercier, sends the case back to Cobb County State Court, where plaintiffs lawyers had asked jurors to award more than $24 million for the 2015 death of Franklin "Basim" Callens in closing arguments last year.     

As detailed in the opinion and court documents Callens, 27, and his girlfriend, Asia Jones, lived in a unit at the Concepts 21 Six Flags apartments. Callens was married to another woman but living with Jones and was present when she signed the lease in 2014; he was not a signatory to the lease, but Jones testified that an assistant manager had OK'd his living there as long as Jones paid the rent.

There was as undisputed history of crime at the apartments including burglaries, carjackings and armed robberies. Earlier in 2015 Callens' brother—who also lived in the unit at the time—saw someone shooting at someone else in the parking lot and another when Jones and Callen saw a man holding a gun to the head of another man outside their window.

On Dec. 15, 2015 Callens was leaving for work as a parking valet when two teenagers driving a stolen car pulled off of Interstate 20 into the apartments' parking lot where they accosted Callens, shot him and stole his laptop, gun and car.  

Callens died at the scene, and the teens—then 15 and 16—were apprehended shortly afterward.

In 2016, Callen's wife, Bintou Cham, and his mother and estate executor sued the complex's owner, Cobb Six-Flags Associates and ECI Management Corp.

Hall Booth Smith partners John Hall and Jeffery Saxby defended the case, which ended with a defense verdict.

During a June 2018 trial, the plaintiffs were represented by Shiver Hamilton partners R. Scott Campbell and Daniel Beer; on appeal, they were joined by Darren Summerville and Kurt Kastorf of The Summerville Firm.

Their appeal raised three issues, including whether the jurist overseeing the trial, Judge Toby Prodgers, had properly instructed the jury as to the duty of care owed to a licensee and Callens' assumption of risk, and the issue of the apartments' security costs.

The appeals panel agreed with the judge's duty of care ruling but said errors on the other issues meant the verdict must be reversed. 

The defense argued that "a charge on assumption of the risk was authorized because Callens was aware of the ongoing crime at the complex, including the incident in which a resident was robbed at gunpoint outside of Jones' apartment and chose to remain at the complex," the opinion said.

"However, knowledge of some vague possibility of criminal activity is insufficient."

For Callens to have assumed the risk, "there must be evidence that Callens had specific knowledge of the presence of the two armed men outside his apartment, but nonetheless made the conscious decision to proceed outside to his car," Brown wrote. 

The defendants "in essence, are arguing that anyone who chose to remain on the property, as either a resident or guest, consented to assume the risk of being shot and killed."

"Such reasoning is obviously flawed," he said, "particularly in a case in which defendants have steadfastly maintained that they implemented reasonable security measures under the circumstances."

Regarding the issue of security costs, the opinion said Prodgers should have conducted a "balancing test" before ruling that evidence regarding how much the complex spent for security guards was barred by rules generally prohibiting the issue of a party's wealth from coming before a jury. 

During opening statements, defense attorneys had said the complex tripled its security spending in the years before Callens' death when it switched from private security guards to off-duty police officers. 

On cross-examination, the apartments' former manager was asked what percentage of its revenues went to security, and the defense objected. 

During a bench conference, Prodgers is quoted as saying "I think this is moving over to the question of what is the financial worth" of the defendants and sustained the objection. 

During cross-examination of the manager at the time of Callens' death the same question was asked, and Prodgers again sustained a defense objection. 

The plaintiffs argued that, "as a result of the trial court's ruling, they were unable to counter Defendants' narrative that switching from private security to off-duty Cobb County police officers represented a substantial budgetary expense, or defendants' implication that additional security costs would drive up the rental rate," the opinion said. 

While evidence of a party's wealth is generally prohibited, "such evidence is not categorically inadmissible."

On remand, the opinion said, Prodgers "should first determine whether the evidence is relevant to an issue in this case" then "conduct a balancing of the evidence" and determine whether its probative value "is substantially outweighed by the danger of unfair prejudice."

Defense attorney Saxby said they were still considering whether to appeal the ruling.

The plaintiffs' counsel were unavailable for comment.