Gilbert James was shot and killed during the commission of an armed robbery which occurred on January 11, 1998, at a Flash Foods convenience store in Albany. Mr. James’ wife, appellant/plaintiff Teresa L. James, individually and as administrator of his estate, filed the instant wrongful death action against appellee/defendant Flash Foods, Inc., seeking compensatory and punitive damages. Ms. James claimed nuisance and negligence in Flash Foods because the criminal conduct of her husband’s assailant was foreseeable and could have been prevented if Flash Foods had provided a warning as to the potential for an armed robbery and had kept its premises safe. Flash Foods moved for summary judgment, arguing entitlement to summary judgment in that the criminal attack was not foreseeable, no other similar attack on a customer having occurred, and the insufficiency of the evidence to show the essential element of causation. Although finding that a jury question remained as to the issue of foreseeability, the Dougherty County State Court nonetheless granted summary judgment to Flash Foods, concluding that no issue of fact remained on the issue of negligence, Flash Foods having exercised ordinary care to safeguard its customers and Ms. James having come forward with no evidence of causation. Ms. James appeals, contending that the issues of breach of the duty of care and causation were for the jury to determine.1 We agree and reverse. Pertinently, the record shows that the James stopped at their neighborhood Flash Foods store to get gas on the evening of January 11, 1998. It was about 8:30 p.m. and dark. Mr. James fueled his car and went inside the store to pay. As Mr. James waited in line while Gail Coleman, the sole clerk on duty, served another customer, a masked gunman entered the store, fired a fatal shot to Mr. James’ head, and demanded the cash in the register. A second shot was fired. Initially, Coleman fell backwards in an effort to hide but gave this up to comply with the perpetrator’s demands, ultimately getting the register open and handing over $150.10 to him. The armed robbery complete, the gunman fled the scene. Coleman called the police who arrived shortly thereafter; however, no apprehension has thus far been made.
Other evidence established that an armed robbery had occurred at the Flash Foods store a month before the armed robbery in issue. Although no customer had been harmed, two perpetrators had successfully entered the store at 10:10 p.m. and, at gunpoint, taken $115.68. Contrary to store policy which required that business after 10:00 p.m. be conducted behind locked doors through a two foot by two foot service window to customers waiting outside, the clerk who had then been on duty failed to lock the doors at 10:00 p.m. As in this case, the clerk had failed to comply with store policy requiring that no more than $50 be kept in the register after dark and that amounts in excess thereof be “dropped” in a safe not accessible to the duty clerk located under the register. And the undisputed evidence of Ms. James’ expert witnesses showed that stores believed to have between $100 and $199 on hand had a 60 chance of being robbed; that the chance of a robbery reached nearly 100 in circumstances where $200 plus were believed to be on hand; that policy limiting available cash on site and locating the store register in a manner clearly visible from the outside were the top two robbery deterrence factors; that visibility from outside the store to the register inside was unclear in the videotape of the crime2 for an unidentified object or objects; and that had Flash Foods followed its own register visibility policy, the robbery and Mr. James’ death probably would not have occurred. Held :
