Jury Instruction Allowing Apportionment of Fault Against a Non-Party Criminal Approved in Premises Liability Case

On September 29, 2006, 21 year-old Jesus Silencio was walking through the parking lot of a DeKalb County movie theater when a truck stopped near him and several individuals verbally communicating gang affiliations confronted Silencio and began punching and hitting him with a bat. During the altercation, Silencio was fatally shot and the individuals fled. Silencio’s family filed a wrongful death action against Regal Cinemas, Inc. and a security company, Perfections Management Solutions, LLC, alleging that negligent security led to Silencio’s death.

At trial, the Judge instructed the jury that they were allowed to apportion fault against the criminal perpetrator. The case resulted in a jury verdict in favor of the defendants so there was no actual apportionment against the murderer but the DeKalb County jury would have been allowed to do so under the Judge’s instruction.

The plaintiffs argued that the Judge’s instruction was inappropriate and relied on several out-of-state decisions which refused to apply apportionment principles where the defendants were alleged to have been negligent in failing to keep the premises safe from allegedly foreseeable intentional conduct. The Court of Appeals declined to adopt those rulings and noted that in the Florida case relied upon by the plaintiffs there was an express provision in the statute which made it inapplicable where the case was “based upon an intentional act.” The Georgia statute has no such exclusionary provision.

It should be noted that the Court of Appeals found that the plaintiffs at various points during the trial had failed to properly preserve their objections. However, this case is good authoriy for the principle that in a premises liability case arising out of a criminal act, i.e., an assault, murder, rape, etc., the jury should be allowed to apportion fault against the criminal who committed the act.

Please call me if you have any questions or would like a copy of the opinion. I congratulate Matt, who was assisted by Wayne Melnick, on this great result.


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.