On May 30, 2007, Nathaniel Polite, a resident of Stonebridge Apartments, walked along a dirt-path between his apartment parking lot to the Chevron gas station next door. A wooden fence separated the apartments and the Chevron, but the fence had an opening which was regularly used by apartment residents to go back and forth to the convenience store. That evening, Mr. Polite was on his way back from the Chevron when two assailants hiding behind the fence threw bleach in his eyes. As Mr. Polite ran towards his apartment, one of the attackers shot Mr. Polite in the back. Mr. Polite suffered permanent injuries, and the attackers were never apprehended. Mr. Polite filed suit against the owner and property manager of his apartment complex and alleged they were negligent in failing to keep the premises safe and to provide adequate security.
The evidence showed that there had been a dozen armed robberies and aggravated assaults on the apartment complex property. Another resident had suffered a similar attack two weeks prior to Mr. Polite’s. However, there had also been nine assaults or robberies on the Chevron property. The evidence also showed that the wooden fence had been built by the Chevron station owners and that the fence was on the Chevron property, twelve feet from the apartment complex’s property line. The apartment complex manager testified that she had attempted to contact the Chevron station owners about repairing the fence or sharing the cost of building a wrought-iron fence but never received a response.
The Defendants filed notices of non-party fault, naming the owner or owners of the Chevron station. At the close of the trial, the Plaintiff moved for a directed verdict on the issue of putting the Chevron owner on the verdict form. The trial court granted the motion, ruling that the Defendants had “failed to produce any evidence creating a jury question as to whether the Chevron station was responsible for any of the repairs or had knowledge of the existing condition of the fence.”
The Court of Appeals disagreed and overturned the Plaintiff’s $5.25 million verdict. The Court found that the evidence of numerous robberies and assaults on the Chevron property and evidence that the area surrounding the apartment complex and Chevron was a high-crime area was sufficient for the jury to consider the fault of Chevron in its verdict.
Importantly, the Court also made clear that defendants do not have to prove the exact identity of the non-party. Even though the apartment complex defendants had difficulty determining the legal owner of the Chevron at the time of the attack, the Court held that the Defendants needed only to designate the non-party’s identification as much as they could under the circumstances.
This decision will be helpful in the defense of negligent security and premises liability cases. As long as the defendant can show some evidence which would create a jury question about the fault of a non-party, the defendant should be able to include that non-party on the verdict form.
Please let us know we can answer any questions about this case or if you would like a copy of the opinion.
Michael Rust and David Sawyer
