A Rare Motion to Dismiss Granted in a Premises Liability/Negligent Security Lawsuit

Last week, Judge Charles Pannell of the United States District Court for the Northern District of Georgia dismissed a lawsuit in which the plaintiff contended that the defendants, owners of an apartment complex, provided inadequate security which resulted in the plaintiff being shot and severely injured. Judge Pannell based his ruling solely on the allegations in the complaint. Nicole Leet and I represent the defendant, Capmark Finance. Wilfred Rivera v. Capmark Finance, Inc., et. al.

In his complaint, plaintiff Wilfred Rivera alleged that an individual who represented that he resided at High Forest Apartments invited Mr. Rivera to an apartment within the complex. Mr. Rivera, another individual named Martin, and the man representing himself as a tenant at Highland Forest arrived at an unfurnished apartment that appeared to be unoccupied. Immediately upon their entry into the apartment, multiple gunmen emerged from a room within the apartment and opened fire upon Mr. Rivera. Mr. Rivera was shot multiple times and has incurred medical expenses of more than $120,000. Mr. Rivera alleged that the defendants, owners and managers of the apartment complex, did not provide adequate security and therefore the assault was easily carried off in the apartment complex. Mr. Rivera contended that the defendants were liable for negligence and for maintaining a public nuisance.

We filed a motion to dismiss the complaint on the basis that Mr. Rivera had not alleged that he was an invitee of the apartment complex and that the complaint set forth no facts establishing that the apartment owed any duty to him. Therefore, the apartment complex could not be liable to Mr. Rivera for negligence. In response, Mr. Rivera argued that he was a guest of a tenant and that, under Georgia law, the guest of a tenant may obtain invitee status because he stands in the shoes of the tenant.

Judge Pannell, in his Order dismissing the lawsuit, points out that the complaint did not use the word “invitee” and, more importantly, Mr. Rivera did not allege that the unknown man with him was a tenant. Rather, the complaint alleges only that the unknown man “represented” that he was a tenant at the apartment complex. The complaint even refers to this gentleman as the “supposed tenant.” There is no allegation that Mr. Rivera believed the man to be a tenant at the apartment complex. According to Judge Pannell, the owners of the apartment complex owed no duty to an individual who pretends to be a tenant of the apartment complex. Therefore, there can be no derivative duty extended to Mr. Rivera.

Judge Pannell also found that Mr. Rivera had not alleged sufficient facts to support his claim that the apartment complex was a “public nuisance.”

This decision highlights that, in Federal Court, a plaintiff is held to a much higher standard for alleging facts to support his or her claim. Vague allegations of negligence are insufficient in Federal Court. This complaint was originally filed in DeKalb Court State Court and we removed it to Federal Court and quickly filed our motion to dismiss. The option of removal to Federal Court should be strongly considered, where possible, for any lawsuit filed in a liberal jurisdiction.

Please call me if you would like a copy of this decision or have any questions.


About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.