TRAVEL, INC. v. STRINGER et al., 263 Ga. 641, 437 S.E.2.d 315
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Certiorari to the Court of Appeals of Georgia -- 207 Ga. App. 223., Judgment reversed. All the Justices concur, except Judge Lowrey S. Stone, who dissents. Carley, J., disqualified.
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Certiorari to the Court of Appeals of Georgia -- 207 Ga. App. 223., Judgment reversed. All the Justices concur, except Judge Lowrey S. Stone, who dissents. Carley, J., disqualified.
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Webb, Carlack, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Beth L. Singletary, Lakey & Bowden, Malcolm P. Smith, G. Meltan Mobley, for appellants.
Walker L. Stringer, Jr. purchased a bus ticket in Augusta from Travel, Inc. of South Carolina on June 13, 1989 and boarded a bus owned and operated by Southeastern Stages, Inc. Shortly before the bus reached its Atlanta destination, he was shot and killed in an unprovoked attack by Perry Tyrone Irvin, a fellow passenger. Summary judgment was granted to Southeastern, its insurer, and Travel in the wrongful death action brought by Stringer's parents and the representative of his estate (the Stringers). A plurality of the Court of Appeals reversed the trial court. Stringer v. Southeastern Stages,
A common carrier of passengers is not an insurer of the safety of its passengers, but must exercise extraordinary diligence to protect the lives and persons of its passengers. OCGA
We disapprove that language in the Court of Appeals' opinion applying premises liability law to common carrier cases. The rule applicable in common carrier cases is that
whenever a carrier, through its agents or servants, knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable. . . . It is [the common carrier's] duty to use proper care and vigilance to protect [passengers] from injuries by such persons that might reasonably have been foreseen and anticipated. . . . Knowledge of the passenger's danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier's liability in this class of cases. . . . [The carrier] is not regarded as an insurer of his passenger's safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger's journey safe and comfortable.
(Punctuation omitted.) Boyle, supra at 838-839.
There are situations where prior violent activity can serve to place a common carrier on notice to anticipate such violence and, pursuant to the carrier's duty of extraordinary diligence, to protect its passengers from that violence. See Metropolitan Transit System v. Burton,
Applying these principles to the case at bar, we do not agree with the Court of Appeals that Southeastern's knowledge of two assaults on bus drivers by knife-wielding passengers in 1986 and 1988 raised a question of fact whether Southeastern knew, had the opportunity to know, or could reasonably have anticipated the violent action of Irvin against the decedent. Although the prior incidents alerted Southeastern that violent passengers presented a "possible source of danger" to other passengers, Boyle, supra at 839, there was no evidence that conditions existing on the Augusta-Atlanta route travelled by the decedent were likely to expose passengers to a reasonably foreseeable danger. As noted earlier, Irvin's comments and behavior alone were not sufficient to create a fact question whether Southeastern failed to exercise the extraordinary diligence required of it. Accordingly, as no fact questions remain whether Southeastern breached its duty to use "all such reasonable precautions as human judgment and foresight are capable of," Boyle, supra at 839, to protect the Stringers' decedent, the trial court correctly granted summary judgment to defendants. [4]
STONE, Judge, dissenting.
I respectfully dissent. The statements made by Irvin to the ticket agent of defendant Travel, Inc. (which, in turn, was ticket agent in Augusta for Southeastern Stages, Inc.) while purchasing a ticket to ride a Southeastern bus en route from Augusta to Atlanta, that "probably there would be an undercover cop . . . looking for him" and that the ticket agent should "tell them he hadn't seen [Irvin]," that Irvin later returned to the ticket agent and reminded him not to "forget what I told you" were sufficient to raise a genuine issue of material fact for the jury to resolve, particularly in light of the evidence of previous violent attacks with weapons on defendants' busses, and the common-place occurrence of various dangerous and anti-social acts afflicting our society in recent years.
Whether Irvin was, on the one hand, a jokester or harmless eccentric, or on the other hand, an armed and dangerous fugitive from justice or escapee from a high-security mental hospital, who might endanger other bus passengers, and what if any action should have been taken by the ticket agent in consequence of Irvin's statement and actions, in the exercise of extraordinary care by defendants for the safety of the other bus passengers, are genuine issues of material fact which should be resolved by a jury and summary judgment should not have been granted. Additionally, while the evidence did not show whether or not the "undercover cop was in search of Irvin to arrest him as a criminal or escaped mental defective, or merely to interview him as a possible witness in a criminal investigation, the issue of what should have been the appropriate response of the ticket agent upon being informed by Irvin that Irvin was being sought by a police officer for whatever purpose is a matter for resolution by a jury.
I would affirm the judgment of the Court of Appeals that the trial court erred in granting defendants' motion for summary judgment, although not on any basis of the law relative to criminal attacks occurring on real property, which I do not consider applicable in this case.
Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., C. Frederick Overby, Peter J. Daughtery, Jones, Baykin & Associates, John Wright Jones, Noble L. Baykin, for appellees.
1993
Notes:
1. For purposes of the defendants' motion for summary judgment, we will assume that Travel was acting as an agent for Southeastern.
2. This latter issue thus involves both the action (or lack thereof) taken by the ticket agent to whom Irvin made the comments and the action the ticket agent's superiors would have taken had the ticket agent reported Irvin's comments, as required by a Travel internal rule.
3. Knowledge that a particular individual has dangerous propensities is not required where danger is presented in the form of an unruly mob or angry strikers. E.g., Savannah Transit Co. v. Odum,
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